Reconceptualising Gubernatorial ‘Discretionary’ Authority: An Indian Perspective

Date01 September 2017
AuthorBidyut Chakraborty
Published date01 September 2017
Subject MatterArticles
Indian Journal of Public
63(3) 352–371
© 2017 IIPA
SAGE Publications
DOI: 10.1177/0019556117720578
1 Department of Political Science, University of Delhi, New Delhi, India.
Corresponding author:
Bidyut Chakraborty, Department of Political Science, University of Delhi, New Delhi 110007, India.
‘Discretionary’ Authority:
An Indian Perspective
Bidyut Chakraborty1
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.
Colonialism, constitutional sanctity, institutional defence, gubernatorial discretion,
governance, authority
Chakraborty 353
Democracy and discretionary authority1 do not seem to be compatible because the
latter is inherently anti-democratic. Fundamental here is the idea that since the vox
populi is supreme in democracy, there is hardly any scope for discretionary
authority to strike roots in a system of governance which draws its sustenance
from the demos. There are two conceptual points which are interrelated: First,
democracy is perhaps the most effective means for the demos to articulate its will
in a format which is institution-driven and accepted as given within the frame-
work of governance. Second, implicit here is also the point that democracy creates
circumstances in which the views of the demos get articulated and actualised in
the way it is expected. What it means is that democracy is not just an institutional
format but a mode which also enables to realise what they agree to do as a col-
lectivity. This is an ideal conceptualisation since democracy is also about a
specific politico-ideological fashion in which the demos organise their behaviour
and also response to the issues concerning the collectivity. Here comes a difficulty
that cannot be persuasively addressed if democracy is conceived in an ideal format
because aberration is also inherent in human collective life, however democratic
that could be. How to address such a situation within the available conceptual
ideas of democracy? The task is difficult, but not insurmountable. A commonsen-
sical response is articulated by reference to the available means of checks and
balances which are laid out in the constitution or conventions or the commonly
ordained norms and values which are, despite not being sacrosanct, generally
upheld as integrally connected with the system of governance. In other words, by
agreeing to a set of principles, drawn on the constitution and also the concomitant
practices, the demos forge a bond out of their concern for the collectivity. What is
being emphasised here is the criticality of the constitution and the constitutional
practices and norms in sustaining a form of governance which is meant to ensure
public well-being. Two important issues need to be sorted out now: The first issue
relates to the importance of the institutional backup of the constitution and the
complementary values, norms and principles. In other words, how to ensure that
they are equally respected by all strata of society, including those who are made
responsible to protect them. The second concerns the question as to how to link
the people who not only endorse the system but are also organically connected
with it by sincerely believing, rather instinctively, in the systemic utility of the
format of governance that grows out of their concern and deeds. This is a power-
ful conceptual input in two interlinked ways: on the one hand, with the acceptance
of democracy, constitution grows to become supreme insofar as the behaviour of
the collectivity is concerned. Once this is established, whatever practices that the
constitution recognises will, on the other, receive approval of the demos as they
are conducive to the collective existence. The idea of discretionary authority
needs to be conceptualised in such a format of argument which entails that it is not
discretionary because it is drawn on the fundamental concern that democracy
inherently champions. What is sought to be highlighted here is that discretion
cannot be whimsically exercised in a constitutional-democratic format since it is
justified for a bigger cause. One can also build an argument that the exercise of
discretionary authority is not threatening to the constitutional edifice on which
democracy rests presumably because of the critical function that it discharges at a

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