“LAW has reached its finest moments when it has freed men from the unlimited discretion of some ruler, some civil or military official, some bureaucrat. Where discretion is absolute, man has always suffered.” — Justice William Douglas of the US Supreme Court.

This ruthless master acquired increasing power with the growth of the modern state as it expanded into new fields. There was a seeming inevitability about conferring on ministers and secretaries of ministries wide discretionary power in order to implement legislation aimed at social justice.

But the power was also abused systematically for personal political ends. Fortunately drawing on the growth of administrative law in English cases, courts in South Asia began to curb the abuse. Recently, the Bombay High Court gave a ruling, striking at the abuse.

A government resolution had conferred on the Maharashtra chief minister the power to allot 2pc of flats on state-owned lands and 5pc of flats on private lands acquired by the state under the Urban Land Ceiling Act. It became known as “the chief minister’s quota”.

The flats were to be allotted to the “poor and needy” and to deserving artists, sportspersons, freedom fighters or government employees. Instead, the quota was grabbed almost entirely by politicians, bureaucrats, judges and favoured journalists. All were allotted at the chief minister’s discretion.

The Bombay High Court struck down the resolution as being “arbitrary, irrational and illegal”. It asked the state to frame a new policy to govern all such allotments based on clear and precise rules. The Supreme Court of India has ruled repeatedly that arbitrary power is violative of the fundamental right to equality before the law since it enables the government to pick and chose at whim.

Conferment of discretion is inescapable; but any statute conferring the discretion must lay down guidelines to govern the exercise of discretion. They must clearly inform the citizen of his rights and also enable the courts to judge whether the discretion has been fairly exercised or not.

The principle applies to every exercise of discretionary power that affects the citizens’ rights and interests; except in areas like defence and foreign policy. It should certainly apply to the power to imprison a citizen without trial, i.e. preventive detention.

In the classic case of Liversidge vs Anderson, decided by the House of Lords in 1942, at issue were the words “If the secretary of state has reasonable cause to believe that any person is of hostile origin or association” he may make an order directing him to be detained.

All the law lords but one ruled that the test was a subjective one. In a powerful dissent Lord Atkin held that the test was an objective one; the grounds must in fact be reasonable, thus opening an avenue to judicial review.

“I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive. …

“It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.

“In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I. I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister.”

Courts in India followed the majority ruling which was soon discarded in Britain itself. Laws on preventive detention require the state to furnish “the grounds” of detention.

Their relevance is for the courts to decide but their adequacy lies in the realm of executive discretion. It is time that the rules which govern discretionary power on grant of land are also extended to control the power to imprison a citizen without trial.

Meanwhile, British courts have moved much further to curb discretionary power. Lord Diplock summed up the law succinctly.

“One can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’.” The days of arbitrary discretion, it appears, are over.

The writer is an author and lawyer based in Mumbai.