ADMINISTRATIVE DISCRETION AND SPECIAL COURTS
ADMINISTRATIVE DISCRETIONARY POWER AND SPECIAL COURTS
Administrative discretion has to be exercised while performing only administrative actions. Discretionary power is controlled and cannot be exercised unrestrictedly. In State of West Bengal v Anwar Ali, the court was to decide constitutional validity West Bengal special court at 1950. It allowed the state legislature to create special courts for “speedier trials” such cases or classes of cases, such offences or classes of offences’ as the Government may deem fit.
There have catena of case where the validity of laws which create special courts have been questioned and the contention being there is too much administrative discretionary power vested in executive.
The procedure envisaged in this case was detrimental to accused as he wouldn’t get the similar opportunity to defend himself as he got under criminal procedure followed in civil courts. The above act was held to be void as it violate article 14. There was no reasonable classification to distinguish between classes of offences triable by this court and other cases which fall outside purview of the act. The government was given too much of discretionary power to transfer any case to the tribunal, while leaving other case to be dealt by civil courts. There was so much of “uncontrolled authority” which was vested in the hands of executive which created discrimination. The requirement of “speedier trial” was taken be too uncertain and indeterminate which cant in way form the basis of reasonable classification.
Post this case, there were many cases where courts were complacent with such inarticulate and vague policy. Like in Kathi Ranning v. State of Saurashtra , a provision quite similar to the above case was held to be valid. The court in this case reasoned that the impugned policy has its mention in the preamble to the act. The preamble to the act involved in this case was that the government was empowered to transfer any case which affect public order, security of sate and supply of essential commodities. In West Bengal act the term of “speedy trial” was too wide whereas in the Saurashtra act the executive discretion was restricted on few grounds. The distinction between the two in terms of substance is that west Bengal gave the power of state government to choose any case to be sent to trial to special court whereas in Saurashtra case the state could only state a class of offences or cases for the objective mentioned above and not for individual offence or case. But the question arises that whether such general statement of policy of law and in preamble would be in any way be sufficient to check executive action. The rule which can be deduced from the above case is that if a legislation does not mention any definite policy/objective and gives unbridled power to government to pick and choose case at its pleasure, the legislation would be held violative of article 14 as it is arbitrary in nature.
Discretionary power is always controlled and limited. When the statute is drafted in broad term, then problem arises as seen in Anwar ali case. In RD Shetty v. International Airport Authority of India , held that discretion is integral part of administration. There has to be some statute granting such discretion. In UoI v. Kuldeep the court held that discretion implies unrestrained choice which also brings in value judgement.
In another case Kedar Nath v. State of west Bengal, the legislation which established special court , mentioned a list offences which would be triable these courts. But at the same time also gave discretionary power in the hands of the government to allocate any individual case for trial to these courts or withdraw any such case. The supreme court in this case that it is not discriminatory and violative of article 14 as it is necessary to give few powers to the executive to make selection of cases, as even in the same type of offence there could infinite variations. The Kedar Nath case goes a step ahead of the Saurashtra case, and there is also lies a small difference between the two. In Kedar nath , the law involved has already made the classification of cases which are to be tried by court and authority to refer specific cases was given to government based on this classification. While in ST case, the law involved didn’t make any such classification and left the domain for the executive to decide subject to the policy statement (its preamble referred above). the principle which was evolved in ST case was watered to little extent in Kedar Nath case.
Supreme Court upheld the constitutionality of special court act 1979. Section 5 (1) of the act provided that government is under the opinion that there is prima facie proof available that the person holding high public or political office has committed the offence and the offence has to dealt under the act as per the preamble of the act, the government refer the act to be tried to special court. The court observed that section 5 of the act is not in contravention to article 14 as there is no unbridled and arbitrary power in the hands of the executive as the government discretionary power is guided by the preamble of the act which provided enough safeguards to prevent abuse of power and to ascertain the prima facie proof there would be proper application of mind.
There are many problems vested with discretionary power- improper use, for example in Land Acquisition Act, 1894 – Authorities have the discretion to acquire areas for public purposes but they tend to misuse this discretion and acquire land for other uses. If there is excess of discretionary power as in case of Anwar ali, it amounts to violation of other statutes and other provisions of constitution. Discretion must be exercised in the matter of facts, with bona-fide intention. It has to be always controlled and limited.
 Kathi Ranning v. State of Saurashtra 1952 AIR 123, 1952 SCR 435
 RD Shetty v. International Airport Authority of India 1979 AIR 1628, 1979 SCR (3)1014
 Kedar Nath v. State of west Bengal AIR 1954 SC 660