Judicial discretion only when there are more that two lawful solution and not against statute or rules
The Supreme Court in Anurag Kumar Singh & Ors. Vs. State of Uttarakhand, has observed that courts, in exercise of judicial discretion, cannot give any direction contrary to the statute or rules made there under and it is to be exercised only when there are two or more possible lawful solutions.
The Bench comprising Justice Shiva Kirti Singh and Justice L. Nageswara Rao made this observation while upholding a judgment of High Court of Uttarakhand, wherein it had issued a direction to restrict the selection of assistant prosecuting officers only to the number of posts that were advertised.
The Bench, observing that the aspirants who participated in the selection, which was initially for 38 posts and later increased to 74 posts, could not be appointed due to the judgment of the High Court which directed the selection to be only for 38 posts, said: “In view of there being no fault on the part of the appellants, we examined whether we could exercise our judicial discretion to direct their appointments. We realise that any such direction given by us for their appointments would be contrary to the Rules.”
The Bench then quoted from ‘judicial discretion’ by Aharon Barak and observed that judicial discretion can be exercised by a court only when there are two or more possible lawful solutions and it cannot give any direction contrary to the statute or rules made thereunder in exercise of judicial discretion. The court has quoted the following from the book: “Discretion assumes the freedom to choose among several lawful alternatives. Therefore, discretion does not exist when there is but one lawful option. In this situation, the judge is required to select that option and has no freedom of choice. No discretion is involved in the choice between a lawful act and an unlawful act. The judge must choose the lawful act, and he is precluded from choosing the unlawful act. Discretion, on the other hand, assumes the lack of an obligation to choose one particular possibility among several.”
Read more at: http://www.livelaw.in/courts-cant-exercise-judicial-discretion-statute-rules-sc/
The Bench comprising Justice Shiva Kirti Singh and Justice L. Nageswara Rao made this observation while upholding a judgment of High Court of Uttarakhand, wherein it had issued a direction to restrict the selection of assistant prosecuting officers only to the number of posts that were advertised.
The Bench, observing that the aspirants who participated in the selection, which was initially for 38 posts and later increased to 74 posts, could not be appointed due to the judgment of the High Court which directed the selection to be only for 38 posts, said: “In view of there being no fault on the part of the appellants, we examined whether we could exercise our judicial discretion to direct their appointments. We realise that any such direction given by us for their appointments would be contrary to the Rules.”
The Bench then quoted from ‘judicial discretion’ by Aharon Barak and observed that judicial discretion can be exercised by a court only when there are two or more possible lawful solutions and it cannot give any direction contrary to the statute or rules made thereunder in exercise of judicial discretion. The court has quoted the following from the book: “Discretion assumes the freedom to choose among several lawful alternatives. Therefore, discretion does not exist when there is but one lawful option. In this situation, the judge is required to select that option and has no freedom of choice. No discretion is involved in the choice between a lawful act and an unlawful act. The judge must choose the lawful act, and he is precluded from choosing the unlawful act. Discretion, on the other hand, assumes the lack of an obligation to choose one particular possibility among several.”
Read more at: http://www.livelaw.in/courts-cant-exercise-judicial-discretion-statute-rules-sc/
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