In citizenship and immigration law, few words carry as much weight as “discretion”. Whether a person may land at an Indian airport, whether a foreign national is blacklisted, whether an applicant who meets every condition of the statute is in fact granted citizenship: each of these outcomes is routinely defended as an exercise of discretion. The word is often used as though it ends the conversation. It should not. Discretion is a power conferred by law, and like every power conferred by law, it is bounded by law. Discretion is not sweet will.
What discretion means
An article on judicial discretion by a group of judicial officers, published in the Uttarakhand Judicial & Legal Review, offers a useful starting point. It describes discretion as “the power or right to make official decisions using reason and judgment to choose from among acceptable alternatives”. The emphasis falls on reason, on judgment, and on alternatives that are acceptable. Discretion is a choice within a lawful range. It is not a licence to step outside that range.
The authors conclude that discretion “should always be exercised according to the rules of reason and justice and not according to the individual opinion”, and that it “is not unfettered and is not arbitrary but sound and reasonable, guided by judicial principles”. They recall Lord Camden’s warning that unchecked discretion “is law of tyrants: it is always unknown. It is different in different men; it is casual, and depends upon constitution, temper and passion.” They also cite Benjamin Cardozo’s reminder that even a decision maker who is free “is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness.”
These words were written about judges. The principle they state, however, is not confined to the courtroom. Any authority to which the law gives a choice must make that choice according to law. An official deciding who may enter the country, or who may become a citizen, is no exception.
Fair and transparent
If discretion is not sweet will, two things follow. The first is that it must be exercised fairly. A fair decision is one taken on relevant considerations, without regard to irrelevant ones, and in a manner that treats like cases alike. It is a decision that the person affected could understand, even if he does not agree with it. A decision that turns on the mood of the moment, or on factors the law never contemplated, is not discretion at all. It is caprice.
The second is that discretion must be exercised transparently. A person refused entry, refused a visa, placed on a blacklist or refused citizenship is entitled to know that a decision has been taken and, as far as possible, why. The article notes that the Supreme Court, speaking of bail orders, has said that an order “devoid of such reasons would suffer from non-application of mind.” The same logic holds wherever a public authority exercises a choice that affects a person’s liberty, residence or status. Reasons are the evidence that discretion was in fact exercised, and that it was exercised within the law.
Transparency is not an abstract concern. In recent litigation before the Delhi High Court, a foreign national learnt of the fact and duration of her blacklisting only when the government disclosed it in court. Whatever the merits of such a decision, a system in which a person discovers the reason for her exclusion only by filing a writ petition is not a transparent one.
Entry is a matter of law
The case of the citizen is the clearest. A citizen’s entry into his own country is not a privilege granted at the counter. It is an incident of citizenship itself. Any refusal, delay or obstruction at the border must rest on a clear legal basis, and must be open to scrutiny on that basis. There is no room for sweet will when the person at the gate is one of the country’s own.
The case of the foreigner is different, but not as different as is often assumed. It is well accepted that a foreign national has no enforceable right to enter India, and the law gives the government wide power to regulate the entry, stay and departure of foreigners. But the power to refuse entry is itself a creature of law. It is conferred by statute, exercised through orders and instructions made under that statute, and limited by the purposes for which the statute grants it. The absence of a right in the foreigner does not mean the presence of unlimited licence in the official. Even where no one has a right to a particular outcome, everyone is entitled to a decision that is lawful, reasoned and free from arbitrariness.
Courts have repeatedly described entry decisions as matters of sovereign discretion. That description tells us who holds the power. It does not tell us how the power may be used. Sovereignty answers the question of authority. Law answers the question of manner.
Citizenship for the eligible
The same principle applies with even greater force to the grant of citizenship. Parliament has laid down the conditions on which a person may become a citizen. Where an applicant satisfies those conditions, a refusal cannot rest on the unarticulated preference of an official. It must rest on a ground that the law itself recognises, stated in a form that the applicant and, if necessary, a court can examine.
To deny citizenship to an otherwise eligible person, or to leave such a person waiting indefinitely without a decision, is not a neutral act of administration. It is a decision with consequences for that person’s family, livelihood and security. Such a decision must be a matter of law and not of sweet will.
Conclusion
Discretion is indispensable. No statute can foresee every case, and those who administer citizenship and immigration law must be able to respond to facts as they arise. But discretion is a power held in trust. It must be exercised fairly, it must be exercised transparently, and it must stay within the four corners of the law that confers it. Whether the person at the border is a citizen or a foreigner, and whether the applicant before the authority seeks entry or citizenship, the answer must come from the law and not from the will of the person deciding.
This post is commentary and not legal advice.
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