Reconceptualising Gubernatorial ‘Discretionary’ Authority: An Indian Perspective

Abstract

In constitutional governance, discretionary authority is a source of intense theoretical debate. For the classical liberals, discretion does not seem to be entirely incompatible with the actualisation of constitutional democracy; in fact, it is hailed as an aid to the system of governance, being instituted to realise the politico-ideological goal drawn on the fundamental ethos of liberal democracy. Being paternalistic in their approach, the classical liberals thus greeted British colonialism for its ‘self-assigned’ role of civilising the uncivilised. Guided by its so-called civilising mission, the alien state was allowed to retain the discretionary authority as integral to its primary ideological goal in India. With India’s Independence, the idea was challenged, but not entirely discarded showing perhaps the continuity of some of the major constitutional principles that had evolved in the wake of the British rule in India. The logical justification of gubernatorial discretion needs to be understood in this perspective, though the scene had undergone a sea change in post-Independence India following the democratic upsurges leading to the spreading out of political space in areas which so far had remained peripheral. Discretionary authority is now not only an anathema to democratic governance but also a retrogressive constitutional design. Not only is this argument being forcefully made at the level of demos, this is also being endorsed by the Indian judiciary which discarded discretion as undemocratic and unconstitutional.