Discretion And Its Constitutional Limits: Statutory Authorities And The Freedom To Contract
Saumya Pathak, ILS Law College, Pune
ABSTRACT
Administrative law does not end when a statutory authority decides to make a contract; it also looks at the constitutional rules that affect that decision, both before and after the contract is made. This article is concerned with the limits on contracting by statutory authorities and explores the cases where such authorities use their discretion to enter into agreements with private companies, and how much that freedom is controlled by constitutional principles. It examines how far, if at all, the constitutional principles and these restrictions operate as a standard to assess the exercise of discretion in contracting by statutory authorities. It analyzes the Indian situation from the former position of the doctrinal separation of the executive power of the state to contract from the invalidity of contract, and traces the jurisprudential position from the near-total deference to the standards of rationality and non- arbitrariness. It identifies and evaluates the discernible limits to the statutory authority's discretion in contracting in different areas such as the building and allied professions, medicine, and other allied professions, and public- private partnerships. It examines the non-fettering principle and determines that, in the absence of open tendering, the government's discretion in contracting is defensible only in a public works contract.
