CHAPTER-III

ADMINISTRATIVE DISCRETION ; ITS EXPANDING HORIZON

A. Introduction
Discretion is a science or understanding to
discern between falsity and truth, between right
and wrong, between shadows and substance,
between equity and colourable glosses and
pretences, and not to do according to their wills
and private affections.
It has already been emphasised in the previous pages that
with the abandonment of laissez faire and advent of the modern
philosophy of a “welfare” and “social service” state, the
administrative organ, in practically every democratic country, is
performing more and more functions, and is thus increasingly
impinging on the citizen. The administration has acquired large
powers and the trend cannot be said to have abated as yet. The
main tasks of the administrative organ are no longer merely police or
political; it performs vast regulatory and managerial functions.
Formerly the various power of administration were broadly classified
as legislative, quasi-judicial and administrative. No scheme of
classification of powers is really satisfactory.
The administrative powers are of varied types. They range
from such simple matters as registration of births and deaths, to
regulate of a business activity, acquiring property for a public
purpose and detaining a person on the subjective satisfaction of the
executive. The administrative powers are also include such
important powers as of investigation, seizing or destroying the
property of an individual without hearing in the interest of public
health, safety and morality. The types of administrative powers are
too numerous to be mentioned here. Broadly speaking
administrative powers of the administration are : evolving and
 79

implementing policies; execution of laws, applying vague standards

laid down in statutes or delegated legislation from case to case
A significant phenomenon of the present-day administrative
process, is conferment of discretionary powers on administrative
personnel to take decisions from case to case. There is a tendency
in all democratic countries that legislation, conferring powers on the
executive is usually drafted in broad and general terms; it leaves
large area of choice to the administrator to apply the law to actual,
specific and factual situations, that is, from case to case, and does
not specify clearly the conditions and circumstances subject to
which, and the norms with reference to which the executive must
use the powers conferred on it.
Because of the complexity of socio-economic conditions which
the administration in modern times has to contend with, the range of
ministerial functions is very small and that of discretionary functions
"j

much larger. It is realised that a government having only ministerial

duties with no discretionary functions will be extremely rigid and
unworkable and that to some extent, officials must be allowed a
choice as to when, how and whether they will act. The reason for
this attitude is that more often than not, the administration is required
to handle intricate problems which involve investigation of facts,
making of choices and exercise of discretion before deciding upon
what action to take. Thus, the modern tendency is to leave a large
amount of discretion with various authorities.
Discretion is the all-pervading phenomenon of modern age.
Discretion is conferred in the area of rule-making or delegated
legislation, e.g. when the statutory formula says that the government
may make rules which it thinks expedient to carry out the purposes
of the Act, in effect, abroad discretion and choice are being
conferred on the government to make rules. The legislature hardly
 80

gives any guidance as to what rules are to be made. Similarly,

discretion is conferred on adjudicatory, and administrative authorities
on, a liberal basis, that is, the power is given to apply a vague
statutory standard from case to case. But this development is
disquieting because, according to a well known adage, “absolute
power corrupts absolutely”, and therefore, broad powers present
possibilities of being misused and exercised in an arbitrary manner.
The broader the discretion, the greater the chance of its abuse. In
the words of Justice Douglas of the U.S. Supreme Court. “Where
discretion is absolute, man has always suffered... Absolute
discretion... is more destructive of freedom than any of man’s other
inventions”.1 And also : Absolute discretion like corruption, marks
the beginning of the end of liberty.”2 It thus becomes necessary to
devise ways and means to minimise the danger of absolute
discretion, so that injustice is not done to any single individual. It is
not possible for this purpose to depend merely on the good sense of
administration itself to use its power properly, for broad power
always breeds the danger that will wielder will get power drink.
Courts have to play a major role in the process of controlling the
functioning of the administration. In this connection the fundamental
rights guaranteed by the Indian Constitution play a significant role.
The judicial control mechanism of administrative discretion is
exercised at two stages. First at the stage of delegation of
discretion. At this stage, the court may compel the legislature to
desist from conferring too broad or uncabined discretionary powers.
In India, the courts have sought to spell out some limits on
conferment of broad discretionary powers by invoking the
Fundamental Rights guaranteed by the constitution. The courts may

1 United State v. Wander Lick, (1951) 342 US 58 at 101.

2 New York v. United State (1951) 342 US 882 at 884.
 81

declare a statute unconstitutional if it seeks to confer too large a

discretion on the administration. Fundamental Rights in India thus
afford a basis to the courts to control the bestowal of discretion to
some extent, by testing the validity of the law in question on the
touchstone of Fundamental Rights. This may involve some
substantive and procedural safeguards in the exercise of the
powers. The courts may imply some substantive limits on the
power. They may imply some procedural safeguards i.e. an
adjudicatory body being required to follow natural justice. In other
cases the relevant law may lay down some procedural norms.
Second at the stage of the exercise of discretion. There is the need
to have some post-decisional review mechanism to ensure that
administrative authorities discharge their functions according to law
and within legal limits express or implied. To some extent, this
important role is discharged by the courts. The courts control the
exercise of discretion by the administration and for this purpose have
evolved several norms. This aspect is discussed in another chapter
in this study under judicial control of Administrative Discretion.3
Today, the question of control of discretionary power is perhaps
most crucial and Critical problem of the modern administrative law.
Functions dischargeable by the administration may either be
“ministerial” or “discretionary".
B. Ministerial Functions
In politics “ministerial’ is commonly used as - an epithet
appertaining to ministers or, more broadly, to the party in office. We
speak of ministerial responsibility, ministerial cheers. As a technical
legal term it has no single fixed meaning.
It may describe any duty, the discharge of which involves no
element of discretion or independent judgement. Thus, a ministerial

3
Infra chapter VI.
 82

function is one where the law prescribes the duty to be performed by

the administrative authority in certain and specific terms leaving
nothing to the discretion or judgment of the authority, it does not
involve investigation into disputed facts or making of choices. The
authority concerned acts in strict obedience to the law which
imposes on it a single and definite duty in respect of which it has no
choice.
According to Kair and Lawson4:
“Many of the acts performed by public
authorities or public officers are done in strict
obedience to rules of statute or common law
which imposes on them a simple and definite
duty in respect of which they have no choice.”
Gordon classifies the functions of administrative authorities
into judicial and non-judicial. Judicial functions involve the decision
of rights and liabilities so that an investigation and application of
fixed legal standards was a material part of the functions. Non­
judicial functions are further divided into administrative and
ministerial functions. Ministerial functions are exercised by taking
active, often coercive measures, and administrative functions by
meeting out policy and expediency with unfettered discretion. When
an administrative agency is acting ministerially it has no power to
consult its own wishes but when it is acting administratively its
standards are subjective and it follows its own wishes.5
Since an order of mandamus may be issued to compel the
performance of a ministerial act and since, moreover, wrongful
refusal to carry out a ministerial duty may give rise to liability in tort, it
is often of practical importance to determine whether discretion is
present in the performance of a statutory function. An example of
non-discretionary function is furnished by section 35 of the Income-

4
Keirs Lawson, case in constitutional Law (1967) p. 4 20.
5
Gordon D.M., Administrative Tribunals and the Courts, (1933)49 LQR 94, 419.
 83

Tax Act, 1922. This provision stated that the Income tax officer
could rectify any mistake apparent from the record. The Supreme
Court in Hirday Narain v. Income Tax Officer6 rules that this
provision did not give any discretion to the Income tax officer to
exercise or not to exercise the power to rectify. It was implicit in the
nature of the power that it would be exercised by the Income Tax
Officer when a mistake apparent from the record was brought to his
notice by the concerned person. Even if the words used in the
statute are prima facie enabling, the courts will readily infer a duty to
exercise power which is invested in aid of enforcement of a right of a
citizen.
In Kavita v. State of Maharashtra7 it was held that the task of
referring the question of detention of a person to an advisory board
under the COFEPOSA was a mechanical or ministerial act, involving
no exercise of discretion, though the government had the full liberty
to revoke the order of detention at that stage (as at all other stages).
However, the presence of a minor discretionary element is not
enough to deter the courts from characterizing a function as
ministerial. Thus, the issue of a warrant for the non-payment of
taxes has been held to be a ministerial act (and therefore not
reviewable by certiorari) although the officer issuing the warrant had
discretionary power to take proceedings in the courts for recovery of
the taxes.8 The Supreme Court in Sharif Ahmad v. Regional
Transport Authority, Meerut9, regarded the function ministerial where
the appellate tribunal ordered the R.T.A. to grant a permit to each of
the applicants on the production of a roadworthy vehicle and an
affidavit to the effect that he had not been convicted for an offence

6 AIR 1971 SC 33.

7 AIR 1981 SC 1641.
8 Metherington V. Security Export Co. (1924) A.C. 988.
9 AIR 1978 SC 209..
 84

under the Indian Penal Code during the last five years. The courts
stated that "the minor discretionary element given to it (R.T.A.) for
finding out whether the terms of the Appellate Order had been
complied with or not is not enough to deter the courts from
characterizing the function as ministerial.”10 Such application after
the orders of the Appellate Tribunal cannot be said to remain,
‘pending” within the meaning of the statute; what remained pending
was merely a ministerial act to be performed by the R.T.A. Again,
where an authority has erroneously declined ‘jurisdiction over a
matter or has failed to exercise a discretion according to proper legal
principles, the issue of mandamus to it has sometimes been
represented as a remedy for breach of a ministerial duty, although
the determination of such questions may be far from a mechanical
operation.
The term ministerial is often used more narrowly, to describe
the issue of a formal instructions, in consequence of a prior
determination which may or may not be of a judicial character, that
direct action be taken in relation to another’s person or property.11 It
may describe the execution of such an instruction by an inferior
officer (who is sometimes called a ministerial officer).
It is sometimes used loosely to describe any act that is neither
judicial nor legislative In this sense the term is used interchangeably
with “executive" or “administrative”12. So, the functions of an
assessment committee, the making of slum, clearance and
compulsory orders under housing legislature and the assessment of
charges to be imposed on the inhabitants of a district in a country
have all been called ministerial, although their most obvious

Id. at 215.
See Gordon D.M., Administrative Tribunals and the Courts, (1933) 49 LQR at 98.
See Haridas v. Khan (1971)1 W.L.R. 507, 512.
 85

characteristics is that they involve the exercise of discretionary

powers. This use of the term is misleading. However, here, the
term has been used to refer to the making of decisions, the issue of
orders or the execution of acts in which the element of judgement or
discretion is either absent or relatively very small.
C. Administrative Discretion.
Discretion in layman’s language means choosing from
amongst the various available alternatives without reference to any
predetermined criterion, no matter how fanciful that choice may be.
A person writing his will has such discretion to dispose of his
property in any manner, no matter how arbitrary or fanciful it may be.
But the term “discretion” when qualified by the word "administrative”
has somewhat different overtones. ‘Discretion’ in this sense means
choosing from amongst the various available alternatives, but with
reference to the rules of reason and justice and not according to
personal whims. Such exercise is not to be arbitrary, vague and
fanciful but legal and regular. Lords Halsbury in sharp v. Wakefield13
rightly observed :
“Discretion means when it is said that something
is to be done within the discretion of the
authorities that something is to be done
according to the rules of reason and justice, not
according to private opinion ...according to law
and not humour. It is to be, not arbitrary, vague
and fanciful, but legal and regular. And it mqst
be exercised within the limit, to which an honest
man competent to the discharge of his office
ought to confine himself’...14.
Professor Freund15 has defined “administrative discretion” in the
following words:

(1891) AC 173.
Id. at 179.
Administrative Powers over Persons and Property, (1928) p. 71.
 86

“When we speak of administrative discretions

we mean that a determination may be reached
in part at least, upon the basis of consideration
not entirely susceptible of proof or disproof... It
may be practically convenient to say that
discretion includes the case in which the
ascertainment of fact is legitimately left to
administrative determination.”
Thus, in short, here the decision is taken by the authority not
only on the basis of the evidence but in accordance with policy or
expediency and in exercise of discretionary powers conferred on that
authority. For Coke once said that discretion is a science or
understanding to discern between falsity and truth, between right
and wrong, and not to do according to will and private affection.
The legal'concept of discretion implies power to make a
choice between alternative courses of action.16 If only one course
can lawfully be adopted, the decision taken is not the exercise of a
discretion but the performance of a duty.
(i) Conferment of discretion
Discretion is conferred in the area of rule-making or delegated
legislation, e.g. when the statutory formula says that the government
may makes rules which it thinks expedient to carry out the purposes
of the Act. In effect, a broad discretion and choice are being
conferred on the government to make rules. Similarly, discretion is
conferred on adjudicatory and administrative authorities on a liberal
basis, that is, the power is given to apply a vague statutory
standards from case to case.
Rarely does the legislature enact a comprehensive legislation
complete in all details. More often the legislation is sketchy or
skelton, leaving many gaps and conferring powers on the
administration to act in a way it deems "necessary" or “reasonable"

16
Davis, Discretionary Justice (1969) p. 4.
 87

or if it “is satisfied” or “is of opinion”. Rarely does the legislature

clearly enunciate a policy or a principle subject to which the
executive may have to exercise its discretionary powers. Quite often,
the legislature bestows more or less an unqualified or uncontrolled
discretion on the executive. Administrative discretion may be
denoted by such words or phrases as “public interest”, “public
purpose”, “prejudicial to public safety or security”, “satisfaction,"
“belief, “efficient”, “reasonable” etc.
Thus, there is no set pattern of conferring discretion on an
administrative officers. Freund an American Scholar says in this
regard'.
A statute confers discretion when it refers an official for the use of
his power to beliefs, expectations or tendencies instead of facts, or
to such terms as ‘adequate’, ‘advisable,’ ‘appropriate’, ‘beneficial’,
‘competent’, ‘conversant’, 'detrimental', ‘expedient’, ‘equitable’, ‘fair’,
‘fit’, ‘necessary’, ‘practicable’, ‘proper’, ‘reasonable’, ‘reputable’,
‘safe’, ‘sufficient’, ‘wholesome’, or their opposite. These lack the
degree of certainty... They involve matter of degree or an appeal to
judgment. The discretion enlarges as the element of -future
probability preponderates over that of present conditions; it contracts
where in certain types of case quality trends to became
standardized, as in matters of safety; on the other hand, certain
applications of the concepts of immorality, fraud, restraint of trade,
discrimination or monopoly are so controversial as to operate
practically like matter of discretion.17
It is true that with the exercise of discretion on a case to case
basis, these vague generalizations are reduced into more specific
moulds, yet the margin of oscillation is never eliminated. Therefore,

17 Freund, Administrative Powers over Person and Property. (1923) p. 71. List
given above has been further added to.
 88

the need for judicial correction of unreasonable exercise of

administrative discretion cannot be over emphasised.18
(ii) Need of discretion
Because of the complexity of socio-economic conditions which
the administration in modern times has to contend with, it is realised
that a government having only ministerial duties with no
discretionary functions will be extremely rigid and unworkable and
that, too some extent, officials must be allowed a choice as to when,
how, and whether they will act. The reason for this attitude is that,
more often than not, the administration is required to handle intricate
problems which involve investigation of facts, making of choices and
exercise of discretion before deciding upon what action to take.
Thus, the modern tendency is to leave a large amount of discretion
with various authorities. Statute book is now full of provisions giving
discretion of one kind or the other to the government or officials for
various purposes.
The need for ‘discretion’ arises because of the necessity to
individualize the exercise of power by the administration, i.e. the
administration has to apply a vague or indefinite statutory provision
from case to case. There are following good reasons for conferring
discretion on administrative authorities :
(a) The present day problems which the administration is called
upon to deal with are of complex and varying nature and it is
difficult to comprehend them all within the scope of general
rules;
(b) Most of the problems are new, practically of the first impression.
Lack of any previous experience to deal with them does not
warrant the adoption of general rules’

u
18
Ibid.
 89

(c) It is not always possible to foresee each and every problem but
when a problem arises it must in any case be solved by the
administration in spite of the absence of specific rules applicable
to the situation’,
(d) Circumstances differ from case to case so that applying one rule
mechanically to all cases may itself result in injustice.
However, from the point of view of the individual, there are
several disadvantages in the administration following the case to
case approach as compared to with the adoption of a general rule
applicable to all similar cases. First, whereas case to case decisions
operate on the past facts, a general rule usually avoids retroactivity
and operates in future so that one has prior notice of the rules and
thus may regulate his conduct accordingly. In case to case
approach, the individual may be caught by surprise and may not be
able to adjust his affairs in the absence of his ability to foresee future
administrative action. Second, the case to case approach involves
the danger of discrimination amongst various individuals; there
arises a possibility of not getting like treatment under like
circumstances. Third, the process is time consuming and involves
decision in a multiplicity of cases. Also, there is a danger of abuse
of discretion by administrative officials.
In view of these manifold disadvantages, a general rule is to
be preferred to the case to case approach and ought to be adopted
wherever possible. It is desirable to have administrative uniformity
to the extent possible, because, as a matter of general principle,
substantial lack of uniformity would lead not only to administrative
chaos but also to collapse of public confidence in administrative
fairness. In any individual case, it is highly relevant to take into
account what has been done in other cases of a similar nature,
otherwise a decision may result which could be regarded as being
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improper or discriminatory. This objective can be advised by several

ways viz.
First, law conferring discretion may itself seek to lay down the
elements and standards which the authority has to apply in
exercising its discretion and selecting a course of action. This
means that the degree of discretion should be restricted by law itself
as far as possible, or, in other words discretion should be properly
“confined and structured”.19
Two, if a statute leaves a large amount of discretion in the
hands of administration, the administration itself lay down criteria
with respect to which the discretion is to be exercised. !t would help
in predicting administrative decision in individual cases, thus, making
individual’s rights somewhat certain and reducing chances of abuse
of administrative discretion. It would also help in uniform application
of the law in a large number of cases which may have to be handled,
especially when a number of parallel and co-equal administrative
authorities have to cope with cases arising under a particular
scheme.
Three, on a lower plane, to some extent administrative
discretions and norms of practice can be used, instead of the rules,
for the purpose of achieving uniformity in discretionary decisions, but
these should be resorted to only when the scheme is too much in an
experimental stage and constant adjustment may have to be made
for sometime to come otherwise rules are preferable to directions as
they can be enforced judicially.20 But it needs to be emphasized that
while laying down standards make the discretion somewhat less
than absolute, no amount of rules or directions can really eliminate
the need for discretion because administration functions in a very

19
Davis, Discretionary Justice (1969) p. 8.
20
See Supra Chapter II.
 91

broad area and individual cases and situations are bound to arise
which may fall outside the guiding norms and the administration will
have to take some decision therein. Not all acts of the
administration can be bound by fixed rules. Many a time, it may not
be possible to prescribe it intelligible standards for the administration
to follow. All these considerations makes it inevitable that discretion
be vested in the administration to take care of individual cases. But
it also brings in the question of judicial and other dontrol over
discretionary powers.
(iii) No Unfettered discretion
It is true that in any intensive form of government, the
government cannot function without the exercise of some discretion
by the officials. It is necessary not only for the individualization of
the administrative power but also because it is humanly impossible
to lay down a rule for every conceivable eventuality in the complex
art of modern government. Thus, a trend very much in vogue to-day
in all democratic countries is that only a relatively small part of the
total legislative output emanates directly from the legislature. Rarely
does the legislature enact a comprehensive legislation complete in
all details. More often, the legislation is sketchy or skelton, leaving
many gaps and conferring powers on the administration to act in a
way it deems, necessary. This technique of conferring discretionary
powers on administration is so extensively resorted to in modern
times as a process of government that there is hardly any statute
passed by the legislature to-day which does not confer some
discretionary powers on administration. The statute book is now full
of provisions giving discretion of one kind or the other to the
government officials for various purposes. Rarely* does the
legislature clearly enunciate a policy or a principle subject to which
the executive may have to exercise its discretionary powers. Quite
 92

often, the legislature bestows more or less an unqualified or

uncontrolled discretion on the executive.
But it is equally true that absolute discretion is a ruthless
master. It is more destructive of freedom than any of main’s other
inventions.21 Therefore, there has been a constant conflict between
the claims of the administration to an absolute discretion and the
t
claims of subjects to a reasonable exercise of it. Discretionary
power by itself is not pure evil but gives much room for misuse.
Therefore, remedy lies in tightening the procedure and not in
abolishing the power itself.
Thus, today question is not whether discretionary powers to
administrative authorities is desirable or not but what controls and
safeguards can be introduced so that unfettered or unqualified
discretion could not be conferred and discretionary powers could not
be misused by government officials. It thus, becomes necessary to
devise ways and means to minimise the danger of absolute
discretion. To achieve such an objective, a multi-pronged strategy
has to be adopted. Courts have to play a major role in this process.
While the notion of “unfettered discretion" is acceptable to the
English Courts due to the operation of the doctrine of sovereignty of
Parliament, it would be inconsistent with the constitutional framework
of judicial control in India. The Indian Constitution guarantees
certain Fundamental Rights to the people which constitute a
limitation on the legislative and executive powers of the government
and consequently, these rights provide an additional dimension of
control over administrative discretion. The courts in India, in addition
to controlling the exercise of administrative discretion on the same
ground as the courts in England, also use Fundamental Rights to

Dougies in United States v. Wanderlich (1951) 342 45.98 at 101.

 93

control discretionary powers of administrative authorities in two

ways; (i) The courts may declare a statute unconstitutional if it seeks
to confer too large a discretion on the administration. Fundamental
Rights in India thus afford a basis to the courts to control the
bestowal of discretion to some extent, by testing the validity of the
law in question on the touchstone of Fundamental Rights. For this
purpose, the courts can take into account both procedural and
substantive aspects of the law in question. At times, the courts may
imply certain safeguards into the law to hold it constitutionally valid;
(ii) The courts may control the actual exercise of discretion under a
statute by invoking certain fundamental Rights, especially Article 14.
This aspect is considered in another chapter under Judicial Control
of Administrative Discretion.22
The courts have generally attempted to control the bestowal of
discretion to promulgate legislation through the doctrine of
“excessive delegation”.23 Correspondingly, the courts have also
developed the doctrine of "excessive delegation of discretionary
power” by "invoking certain" Fundamental Rights. However, the
judiciary has shown much greater difference to legislation involving
conferment of power of delegated legislation than of administrative
discretion. In the former case, courts have often been satisfied with
vague or broad statements of policy and have even upheld statutes
where policy was not apparent. But the courts have adopted a more
critical attitude in the matter of scrutinizing statutes conferring
administrative discretion with reference to Fundamental Rights. The
reason is that delegated legislation being a power to make an order
of general applicability presents less chance of administrative
arbitrariness than administrative discretion which is applied from

22
Infra chapter VI.
23
See In re Delhi Laws Act case, AIR 1951 SC 332.
 94

case to case. The courts have shown tolerance to conferment of

large discretionary powers when there are some procedural
safeguards available to regulate the exercise of the powdr, e.g., the
right of hearing.
(a) Article 14 of the Constitution and Administrative Discretion :
one of the constitutional bulwark against unfettered or uncontrolled
discretion in Indian law is article 14 of the constitution which provides
for the principles of ‘equality before the law’ and ‘the equal protection
of laws’. This constitutional provision condemns discrimination; it
forbids class legislation, but permits classification founded on
intelligible differential and having a rational relationship with the
object sought to be achieved by the Act in question. Article 14 is
buttressed by Article 15 expressly prohibiting discrimination on
grounds of religion, race, caste, sex or place of birth, Article 16
states positively that there shall be equality of opportunity in matters
of public employment. ‘Unfettered discretion’ is liable to be used in a
discriminatory manner and this is offensive to Article 14.
The general principle is that conferment of an arbitrary,
sweeping, uncontrolled or unfettered discretion on an administrative
authority violates Article 14 as it creates the danger of discrimination
among those similarly situated which is subversive of the equality
doctrine enshrined in Article 14. Mr. Justice Fazl Ali24 said in state of
West Bengal v. Anwar Ali. 1
“An Act which gives uncontrolled authority to
discriminate cannot but be hit by Article 14”.
Similarly, in Satwant Singh v. Assistant Passport officer,25
where refusal of passport was hold violative of Article 14, the issue

24
AIR 1952 SC 75.
25
AIR 1967 SC 1836.
 i
95

of passports being governed entirely by discretion, the Supreme

court observed :
in the case of unchannelled arbitrary discretion,
discrimination is writ large on the face of it.
Such a discretion patently violates the doctrine
of equality, for the difference in the treatment of
persons sets solely on the arbitrary selection of
the executive”26
In state of West Bengal v. Anwar Ali,27 in order to speed the
trial for certain offences, Section 5(1) of the West Bengal Special
Courts Act, 1950 conferred discretion on the State Govt, to refer any
offence for trial by the special court. Since, the procedure before the
special court was stringent in comparison with that for normal trials,
the respondents asserted its unconstitutionality on the ground that it
violates the equality clause in Article 14. The court held the law
invalid on the ground that the use of vague expressions like
“speedier trial", confers a wide discretion on the Government and
can be a basis of unreasonable classification. The Act was held
violative of Article 14 because it had empowered the government to
select any case or a class of cases or offences to be tried by the
special courts. This unfettered discretion is likely to be branded
discriminatory and therefore, contrary to Article 14.
Section 65 A of the Bihar and Orissa Co-operative Societies
Act, 1935 which conferred blanket powers on the State Government
to decide matters contemplated under the Act, even including quasi
judicial matters was held to be violative of Article 14.28
In S. Kandaswamy Chettiar v. State of Tamil Nadu29 the
Maharashtra vacant Lands (Prohibition of unauthorized occupation
and Summary Eviction) Act, 1955, which was passed for prohibiting

26 Id. at 1967.
27 AIR 1952 SC 75.
28 State of Meharashtra v. Kawal S. Durgule, AIR 1985 SC 119.
29 (1985)1 See 290.
 96

unauthorised occupation of vacant lands and for providing summary

eviction of unauthorised occupants, conferred upon the competent
authority the discretion to declare a land as vacant land without
laying down any policy as a guidance for the exercise of such
discretion. The Act was therefore held to be violative of Article 14.
Discretion was conferred on the State Government by the Tamil
Nadu Building Lease and Rent Control Act 1960 to exempt buildings
from the Act. This provision was uphold in Kesoram & Co. v. Union
of India.30
Similarly, in state of Kerala v. M/s Travencore Chemicals
Manufacturing Co.,31 Section 59A of Kerala General sales Tax Act,
1963 conferring wide and unbridled power was held to be violative of
Article 14. It is a well established principle of Indian administrative
Law that too broad, uncontrolled discretionary power ought not to be
conferred on administrative authorities, for uncontrolled or unguided
power falls foul of Article 14. This principle finds reiteration in
several cases. In Sheo Nandan Paswan v. State of Bihar,32
Bhagwati C.J. observed :
"It is significant to note that the entire
development of administrative law is
characterised by a consistent series of decisions
controlling and structuring the discretion
conferred on the state and its officers. The law
always frowns on uncanalised and unfettered
discretion conferred on any instrumentality of the
state and it is the glory of administrative law that
such discretion has been through judicial
decisions structured and regulated.”33
The preceding discussion shows that the court would enquire
whether the statute contains the policy or principles for guiding the

(1989) 3 SCC 151.

AIR 1999 SC 230.
AIR 1987 SC 877.
Id. at 895.
 97

exercise of discretion by the executive in the matter of classification

and if it does not the statute is liable to be invalidated as having
conferred “unfettered” discretion to discriminate between persons or
things similarly situated.34 If a statute does not disclose a definite
policy or objective, subject to which the discretion conferred by it is
to be exercised, then the statute is bad as being discriminatory.35
However, the wisdom of legislative policy is not open to judicial
review but when the wisdom takes the concrete form of law it must
be in tune with the fundamental rights of the constitution.
So long as the policy itself is not discriminatory36 legislation
would be upheld if its purpose or policy to guide the exercise of
discretion is manifest. On that basis Preventive Detention Act,37
Minimum wages Act,38 Industrial Dispute Act,39 Suppression of
Immoral Traffic Jin women and Girls Act40 etc. have been upheld.
However, even if the legislation is valid an administrative action
purportedly authorised by the legislation could be discriminatory and
invalid.41
Though, the principle is clear and well established that
unguided or arbitrary power cannot be conferred on the
administration, yet its application by the courts to various factual
situations bristles with difficulties. In order not to hamper
administrative action too much, the courts show flexibility in their
approach and difference to the legislative will; at times, they uphold
legislation even when the policy to guide the discretion is not definite

Sathe S.P., Administrative Law (1984) p. 271.

B.N. Chettiar v. Central Govt. AIR 1976 Mad. 224.
A. L. Kalra v. P & E Corpn. Of India Ltd., AIR 1984 SC 1361.
Kedarnath v. State of W. B„ AIR 1953 SC 404.
Bhikusa Yamasa v. Sanagammar Kamgar Union, AIR 1963 SE 404.
Bhiksa Yamasa v. Union of India, AIR 1963 SC 1591.
State of U.P. v. Kaushaliya, AIR 1964 SC 416.
Ram Krishan Dalmia v. Tendulkar, AIR 1958 SC 538.
 98

or clear but somewhat vague and inarticulate.42 The courts have

also held that it is not necessary that the policy be stated in the
specific statutory provision which confers discretion on the
administration, and that it would meet the needs of the situation if
the same is ascertainable from the preamble and the long title of the
Act in question. These few propositions lead to the result that it is
only in a rare case that a court would be persuaded to hold a law to
be discriminatory. This can be illustrated by following few cases.
In State of Punjab v. Khan Chand43, the truck of Sh. Khan Chand
was requisitioned by the District Magistrate, Rohtak for famine relief
work. He challenged the constitutionality of the East Punjab
Requisition of Movable Property Act, 1947 on the ground that it
violates the provisions of Article 14 of the constitution. The supreme
Court struck down the law empowering the executive to requisition
movable property. The court held that the Act confers wide
discretionary powers upon authorities by not layirig down the
guidelines for requisitioning movable property. Even the words
“public purpose” are not used. Therefore arbitrariness and power to
discriminate are writ large on the face of the Act and fall within the
mischief which Article 14 seeks to prevent. It would be wrong to
assume an element of judicial arrogance in the judicial behaviour
striking down the statute.
In Manohar Lai v. State of Maharashtra,44 Section 187. A of
the Sea Customs Act gave wide discretionary power to the
authorities to either refer a case of smuggled goods to a magistrate
or to look into the matter themselves. The court upheld the validity
of the statute on ground that as this discretion is to be exercised by

AIR 1974 SC 543.

AIR 1971 SC 1511.
 99

senior officers that will stand as a guarantee against its misuse. This
kind of judicial behaviour aimed at preserving wide discretionary
powers may ultimately end up in destroying it.
In Summan Gupta v. State of J & K45 with.a view to encourage
national integration certain state governments agreed as a matter of
policy to reserve certain seats in medical colleges for outside
candidates nominated by the respective state government on a
reciprocal basis. The Supreme Court struck down the vesting of
power of nomination in the state governments as the nomination
was left to their unlimited discretion and uncontrolled choice.
In Monarch Infrastructures v. Commr. Ulhasnagar Municipal
Corporation,46 the Municipal Corporation had invited tenders for
appointment of agents for the collection of Octroi. However one of
the eligibility condition was deleted after the expiry of the time for
submission of tenders but before opening thereof. ; Thereafter,
tender was awarded to one who did not fulfil the deleted condition.
The Supreme Court held award of tender arbitrary and
discriminatory.
However, if a statute confers wide powers but contains
procedural safeguards, then it can be upheld as valid. Thus, in Tika
Ramji v. State of U.P.47 section 15 of the U.P, sugarcane Act, 1953
gave to the cane commissioner, after consulting the factory and
cane growers co-operative society, power to reserve any area and
assign any area for the purpose of supply of cane to a factory. An
appeal against such an order lay to the government. The power
given to the commissioner was held not bad under Article 14 as it

AIR 1983 SC 1235.

(2000)5 SCC 287; See also Mohd. Riazul Usman Gans v. Distt. And Session
Judge, (2000)2 SCC 606.
47
AIR 1956 SC 676.
 100

was well defined and contained safeguards against its exercise in a

discriminatory manner.
Organo Chemicals Industries v. Union of India,48 is an
important case on this area. Section 14-B of the1 employees
‘Provident Funds Act’, 1952 provides that where an employer makes
default in the payment of any contribution to the fund, the Central
Provident Fund Commissioner may recover from the employer such
damages, not exceeding the amount of arrears, as he may think fit to
impose. Before imposing damages, the employer is to be given a
reasonable opportunity of being heard. The broad power given to
the commissioner was upheld by the Supreme Court mainly because
the law in question was social in nature and beneficial to the labour.
However, the court adopted the following formal arguments to
uphold the commissioner’s vast power to impose damages. The
power is to be exercised according to natural justice and, as such,
he has to make a speaking orders; such an order is subject to Art.
226, so that perversity, illiteracy, extraneous influence, mala fides
and blatant infirmities straight away get caught and correct”. In,
awarding damages he usually takes, into consideration, as he has
done here, various factors viz. the number of defaults, the period of
delay, the frequency of defaults and the amounts involved.” Again in
Gopikishan v. Assistant Collector of Customs,49 the power of
assistant Collector of Customs to order search of the premises of a
person if had reason to believe that the person had in his
possession goods liable to be confiscated was upheld as he was
required to send forthwith a copy of any record made by him to the
collector, and he could be prosecuted if he took action without
“having reason to believe”

48
AIR 1979 SC 1803.
49
AIR 1967 SC 1298.
 101

The Supreme Court may read the procedural requirement of

hearing into a statute to save it from unconstitutionality under Article
14. Thus, in State of Mysore v. Bhat,50 where a law authorised the
competent authority to declare an area a slum area, to declare
houses unfit for human habitation and declare a slum area as a
clearance area the court read natural justice into the law to uphold it
under Article 14.
In Maneka Gandhi v. Union of India51, section 10(3) of the
passport Act, 1967 empowered the Central Government to impound
a passport of a person in public interest. There was no appeal
against the order of the government and the words “in the interests
of the general public" were appeared to be vague and undefined.
But the court upheld the provision by reading the requirement of
natural justice and because the words in question could not be
characterised as vague and undefined as these very words are to be
found in Article 19(5). These words provide sufficient guidelines to
the government and its power cannot be regarded as unguided and
unfettered, the reasons for impounding the passportlf;are to be
recorded in writing and copy thereof is to be given to the affected
person save in certain exceptional circumstances; the power is
vested in a high authority, and according to the court when power is
vested in a high authority like the Central Government, abuse of
power cannot be legally assumed.”
Although Article 14 has established itself as the constitutional
basis for demanding judicial review in a way that is familiar to
American lawyers i.e. that discretion be structured by rules
standards and policies, the degree of judicial review exercised on
this basis has swung between two extremes of a pendulum. In

50
AIR 1975 SC 596.
51
AIR 1978 SC 597.
 102

some cases the courts have rejected the standards provided by the
statute as “vague and uncertain” and condemned the enabling Act
as having conferred unguided discretion while in other cases they
have handed the executive a free hand by saying that a discretion
vested in a high ranking officials is presumed to be exercised bona
fide.52 Sometime they have accepted even a vague policy as
i

sufficient for the purpose when the same has been given in the
preamble of the statute concerned or in general objective of the
statute.53 Thus, in state of W.B. v. Anwar Ali,54 the West Bengal
Special Courts Act, 1950 which authorised the state government to
direct a special court to try “any offence or cause” under a’;procedure
substantially different from the ordinary criminal procedure to
determent of the accused declared in its preamble that th,e object of
the Act was” to provide for the speedier trial of certain offences”. It
was held that the necessity for a “speedier trial” was too vague and
uncertain to form a rational basis of classification. By contrast
speedier trial related to the object of the statue such as . “public
safety" and ‘maintenance of public order in a dangerously disturbed
area’ has been accepted a sufficiently certain.55 Similarly in Kathi
Ranning v. State of Saurashtra56 a provision practically similar and
parallel to the one involved in the Anwar Ali case was held valid
because the court found that the policy was stated in the preamble
to the Act.
In union of India v. Annan Ramalingam,57 the courts upheld
the validity of Section 28 of the Gold Control Act, 1968 against
attack on the ground that it provided no criteria or guidelines for the

52 V. C. Shukla v. State, AIR 1980 SC 962.

53 Pannalal v. Union of India, AIR 1957 SC 397.
54 AIR 1952 SC 75.
55 Gopichand v. Delhi Administrative, AIR 1959 SC 609.
56 AIR 1952 SC 123.
57 AIR 1985 SC 1014. ■
 103

exercise of his power by the administrator. Section 28 barred a

licensed dealer, unless authorised by the administrator, to carry on
business as a moneylender or banker on the security of ornaments
or any other article. Although no express rule prescribing the
conditions or circumstance for grant of power had beemprescribed,
that was not decisive of the matter. Section 28 being a part and
parcel of the entire scheme of gold control as envisaged by the Act
"the object of the enactment and the scheme affords sufficient
guidance to the Administrator in the matter of exercising his
discretion under that section”. Section 28 is designed to prevent
circumvention of other provisions of the Act. Against the
administrator’s order a revision lies to the central government ‘which
implies that he will have to make judicious use of his power or
discretion and any improper exercise of power or discretion is liable
to be corrected by a higher authority.”
But in B.B. Rajwanshi v. State of Uttar Pradesh,58 the
Supreme Court adopted a stricter attitude. In that case section 6(4)
of the U.P. Industrial Disputes Act, 1947 authorised the State
Government to remit an award of a Labour Court or Tribunal for
reconsideration of the adjudicating authority and that authority was
to submit the avtfard to the government after reconsideration. The
Supreme Court noted that Section 6(4) did not require the
government to hear the parties before remitting the award to the
concerned adjudicating authority; the government was not required
to give reasons for remitting the award; the government was not
required to inform the authority the specific points on which it was to
reconsider the award. The Supreme Court declared the provision
unconstitutional under Article 14. The court observed : “The

58
AIR 1988 SC 1089.
 104
'.(•

provision cannot be upheld in the absence of necessary statutory

guidelines for the exercise of the power conferred by it haying regard
to the fact that the proceeding before the Labour Court or the
Industrial Tribunal is in the nature of quasi-judicial proceeding where
parties have adequate opportunity to state their respective cases, to
lead evidence and make all their submission”. Section 6(4) was so
widely worded that it was likely to result in grave injustice to a party
in whose favour an award was made as Sec. 6(4) could be used to
re-open the whole case. Sec. 6(4) conferred “unguided and
uncontrolled powers” on the State Government. The power could be
used arbitrarily to favour one party over the other; the power was
capable of serious mischief.59 The court refused to accept the
argument that the government could seek necessary guidance from
the object and content of the Act.
In some cases, the Supreme Court has justified the
conferment of large discretionary power on the executive on the
ground that power had been conferred on a high ranking official or
body which was not likely to abuse the power. Thus, in
Commissioner of Sales Tax v. Radhakrishan,60 the court stated :
Where power is conferred on high and
responsible officers they are expected to act
with caution and impartiality while discharging
their duties... The vesting of discretionary power
in the State or public authorities or an officer of
high standing is treated as a guarantee that the
power will be used fairly and with a sense of
responsibility.”61
Thus in Manoharlal v. State of Maharashtra62 Section 187-A of
the sea Customs Act giving powers to the custom authorities either

Id. at 1096.
AIR 1979 SC 1588.
Id at 1592, 93.
AIR 1971 SC 1511.
 105

to refer a case of import of prohibited goods to a magistrate or

themselves to confiscate the same and impose fine has been upheld
on the ground that the power has been conferred on the chief
Customs Officer or other senior officer and there is sufficient
guidance in the object and purpose of the Act to exercise the power.
Again in Accountant-General v. Doraiswamy.63 The Supreme
Court would trust the comptroller and Auditor General with discretion
because of his ranking constitutional status.
It is a myth to say that the power vested in high officials is not
apt to be misused as there are many cases on record where the
court itself has found some fault with the exercise of power by high
officials or even central or state government. This appears to be a
very tenuous basis to support conferment of broad powers, in
Mohinder Singh Gill v. Chief Election Commissioner64 the Supreme
Court has itself warned that “...wide discretion is fraught with
tyrannical potential even in high personages, absent legal norms
and institutional checks". Thus, the sooner the court discards the
argument of validating broad discretion because of the high rank of
the donee of the power the better it is for the growth of
Administrative Law in India.
In Niemla Mills Ltd. v. Second Punjab Tribunal65 Section 10(1)
of the Industrial Disputes Act, 1947 which empowers the government
to refer an industrial dispute to a board for settlement, or a court of
enquiry or a tribunal for adjudication has been upheld. The court
took the view that ‘No two cases are alike in nature and the industrial
disputes which arise or are apprehended to arise in particular
establishment or undertakings require to be treated having regard to

AIR 1981 SC 783.

AIR 1978 SC 851.
AIR 1957 SC 329.
 106

the situation prevailing in the same. There cannot be any

classification and the reference to one or the other authorities has
necessarily got to be determined in the exercise of its best
discretion’’66 The general objectives of the statute have been held to
be sufficient in controlling the power of the government.
In re Kerala Education Bill case,67 the Kerala Education Bill
gave broad powers of control to the Kerala Government over private
schools in the state, as for example, power to recognise newly
established schools, power to take over any category of schools in
any specified area through a notification. These provisions were
challenged as being discriminatory on the ground that they were
capable of being exercised “with an evil eye and unequal hand".
The Supreme Court held that the clauses of the bill had to be
interpreted and read in the light of the general policy laid down in the
preamble namely to provide for better development of education in
the State.
Article 14 has thus proved to be a valuable tool in restraining
what has been termed in English law “unfettered discretion”. Thus,
the courts have demanded that discretion must not be arbitrary.
Absence, of standards, policies and principles to guide the exercise
of “absolute discretion” is liable to render the resultant administrative
action open to challenge.
(b) Reasonable Restrictions under Article 19 of the Constitution
and Administrative Discretion :
Another constitutional bulwark against uncontrolled or
unfettered discretion is Article 19. Article 19(1) of the constitution
guarantees the following rights to citizens : (a) freedom of speech
and expression; (b) freedom to assemble peacefully and without

66
Id. at 336.
67
AIR 1958 SC 956.
 107

arms; (c) freedom of association; (d) freedom to move freely

throughout the territory of India; (e) freedom to reside and settle in
any part of the country; and (f) freedom to practice or carry on trade
or business.68 These are not, however, absolute freedom. These
rights are subject to reasonable restrictions69 which the state may
impose for the purposes specified in clauses (2) to (6) of article i.e.
national security, foreign affairs, public order, decency, public
interest etc. The "reasonableness” of the restrictions envisaged in
article 19 is determined by the courts.70 In other words a wide range
of civil liberties is taken out of the reach of “unfettered discretion” of
the executive. While determining the reasonableness of restrictions
under Article 19, the Supreme Court has insisted that the power
conferred on the executive should not be arbitrary, or discriminatory
and that an “unfettered discretion” left to the executive would be
inconsistent with Article 19. Thus, in State of Madras v. V.E. Row,71
section 15(2) (b) Criminal Law Amendment Act, 1908 as amended
by Madras Act, 1950 gave wide discretionary power to the State
Government to declare any association as unlawful. The court struck
down section 15(2) (b) as being unconstitutional because it allows
the administrative authority to exercise this discretion on subjective
satisfaction without permitting the grounds to be judicially tested.
In State of Bihar v. K.K. Mishra72, clause (6) of Section 144
Criminal Procedure Code gave discretionary power to state
Government to extend the life of an order passed by the magistrate
beyond the period of two months if it considered it necessary for
preventing danger to human life, health and safety or for preventing

68 The Constitution (Forty fourth) Amendment Act, 1978 amended Article 19

deleting the freedom to acquire, hold and dispose of property.
69 Krishan Kakanath v. Govt, of Keral, AIR 1997 SC 128 at 135.
70 Chintaman Rao v. State of MP, AIR 1951 SC 118.
71 AIR 1952 SC 196.
72 AIR 1971 SC 1667.
 108

riot or an affray. The Supreme Court held clause (6) of Section 144
unconstitutional as it invests the administration with blanket
discretionary power which is capable of being exercised arbitrarily,
and hence would amount to unreasonable restriction on the exercise
of freedom.
However, discretion is not open to constitutional objection if -
(a) the circumstances or the grounds on which it can be exercised
are state; or (b) if the law lays down the policy of the discretion; or
(c) if there are adequate procedural safeguards in law against the
possible abuse of discretion.73 Thus in Virendra v. State of Punjab74
a law which empowered the executive to impose restrictions on
freedom of the press if the executive were ‘satisfied that such
restrictions were necessary to combat any activity prejudicial to
maintenance of communal harmony was upheld as valid because
under it an aggrieved person could make a representation to the
court. For similar reasons in commissioner Hindu Religious
Endowment v. Lakshmindra,75 a scheme framed by an executive
officer for administration of endowed property was held valid
because an aggrieved could bring an action in the ordinary court
with a further appeal to the High court.
However, uncontrolled discretion, i.e. discretion not guided by
rules, principles or policy, is liable to be struck down as infringing
Article 19 rights. Thus a rule requiring an exhibitor of films to show
at each performance approval films of such length and for such
length of time as the government might direct was held
unreasonable as the government had been vested with 'unregulated
discretion’ as regards length and time of exhibition and length of the

Sathe, S.P. Administrative Law (1991) p. 314.

AIR 1957 SC 896.
AIR 1954 SC 282.
 109

film.76 Statutory Power to determine from time to time the maximum

sale price of a certain type of rice in the discretion of the Director of
Food was held invalid for the same reason.7'
H.R. Banthia v. Union of India.78 The Gold Control Act, 1968
invested administrative authority with blanket discretionary to grant
or refuse licence to any dealer in gold ornaments. Though the Act
had provided that such power was to be exercised with reference to
the number of existing dealers, anticipated demand, suitability of the
applicant and public interest, the court struck down the law on the
ground that such vague expressions may result in the arbitrary
exercise of power.,
In Himat Lai K. Shah v. Police Commissioner,79 Rule 7 under
Section 44 of the Bombay Police Act, 1951 gave unguided
discretionary power to the police commissioner to grant or refuse
permission for any public meeting to be held on public street. The
Supreme Court struck down Rule 7 as being an unreasonable
restriction on the exercise of a fundamental right.
The Court would have regard to the safeguards in the relevant
statute and the nature of the administrative act in question in order
to determine the reasonableness of restrictions under Article 19. In
M/S Diwan Sugar Mills C. Ltd. v. Union of India,80 a price-fixing order
was upheld because the prices fixed were neither below the cost of
production, nor arbitrary. The Central Government was required to
give consideration to the factors specified in the enabling Act. This
was accepted by the court as sufficient safeguards against abuse of
power.

76
Seshadri v. District Magistrate, AIR 1954 SC 747.
77
Hari Ram Paras Ram v. State of Haryana, AIR 1982 P & H 108.
78
AIR 1970 SC 237.
79
AIR 1973 SC 87.
80
AIR 1959 SC 626.
 110

The Supreme Court has been prepared to concede a great

deal of latitude to administrative actions that are called for in the
interest of general public. Thus in Cooverji v. Excise
Commissioner,81 the Excise Commissioner was empowered to grant
licences on payment of such fees, for such period, subject to such
restrictions, on such conditions, in such form and containing such
particulars as he might direct either generally or in particular. In
State of M.P. v. Bharat Singh82, the M.P. Public Security Act, 1959
invested the District Magistrate or the State Government, with wide
discretion, uncircumscribed by procedural safeguards, to extern a
person from any area and to interm him in any specified place if his
activities were prejudicial to the security of state or maintenance of
public order. The Supreme Court held the relevant provision
unconstitutional on the ground that it invests the government with
such wide discretion without procedural safeguards that a person
could even be interned in a place which could render him a destitute
without any means of livelihood.
In State of Maharashtra v. Kamal S. Durgule83, the legislature
had given the power to the competent authority to declare a land
vacant and then to acquire it. The power had given without laying
down any guidelines for the exercise of this discretion and no
provision had been made of any notice and hearing to the owner.
Quashing Sections 3(1) and 4(1) of the Land Acquisition Act, the
Supreme Court held that because law confers arbitrary powers on
the government, hence it violates Article 14 of the constitution. The
court further observed that the fact that the exercise of this power
has been given to officers of high echelon makes no difference to

81
AIR 1954 SC 220.
82
AIR 1967 SC 1170; See also State of M.P. v. Baldeo Pol., AIR 1961. SC 293.
83
AIR 1985 SC 119.
 Ill

the position and is hot a palliative to the prejudice which is inherent

in the situation. When discretionary power is conferred on an
authority, there must be a provision for a corrective machinery by
way of appeal or revision to superior authority to rectify an adverse
order passed by the lower authority. By an amendment in 1976 of
the Industrial Disputes Act, 1947 it was provided that if an employer
was intending to close down his factory, he had to obtain the
previous approval of the government which could refuse to give
permission if it was of the opinion that the reasons for the closure
were not sufficient or the closure was prejudicial to public interest. In
Excel Wear v. Union of India,84 the amendment was struck down,
inter-alia, on the ground that the authority could whimsically and
capriciously refuse permission to close down the factory and the
order was not subject to any scrutiny by any authority or tribunal
either in appeal or revision.
But in Babuhai & Co. v. State of Gujarat85 it was held by the
court that if certain other ways are available to check or control the
discretionary power then mere absence of a corrective machinery by
way of appeal or revision would not render the provision invalid. The
court observed that absence of such a machinery may indicate that
the power so conferred is unreasonable or arbitrary but that
providing such a machinery is only one of the several ways in which
the power could be checked or controlled and its absence is one of
the factors to be considered alongwith several others before coming
to the conclusion that the power so conferred is unreasonable or
arbitrary; mere absence of a corrective machinery by itself would not
make the power unreasonable or arbitrary. Some of the factors to
be considered in this connection are mentioned by the court as

84
AIR 1979 SC 25,
85
AIR 1985 SC. 613.
follows; on whom the power is conferred. Whether on a high official
or petty officer; what is the nature of power whether its exercise
depends on subjective satisfaction of the authority or is to be
exercised objectively by reference to some existing facts or test;
whether or not it is a quasi-judicial power requiring the authority to
observe principles of natural justice and make a speaking order?
The last factor ensures application of mind by the authority only to
pertinent or germane material on the record excluding extraneous or
irrelevant material and also subjects the order of the authority to
judicial review under writ jurisdiction on such grounds as perversity,
extraneous influence, mala fides and other infirmities. The court has
observed in this connection.
“Moreover all these factors will have to be
considered in the light of the scheme of the
enactment and the purpose intended to be
achieved by the concerned provision. If on an
examination of the scheme of the enactment as
also the purpose of the concerned provision it is
also found that the power to decide or to do a
particular thing is conferred on a very minor or
petty officer, that the exercise thereof by him
depends on his subjective satisfaction, that he is
expected to exercise the power administratively
without any obligation to make a speaking order
than, of course the absence of a corrective
machinery will render the provision conferring
such absolute and unfettered power invalid. But
if the commutative effect of all these factors that
will render the provision unreasonable or
arbitrary and liable to be struck down”86
Thus, in the instant case, Section 54 of the Bombay Town
Planning Act, 1954 vesting power in the Municipal Corporation to
summarily evict persons in occupation of lands required for
implementing the final town planning scheme was held valid on the

86
The Court made the reference in' this connection to Oranges Chemicals
Industries v. Union of India, AIR 1979 SC 1803.
 J

following grounds : (i) the power is vested in the local authority which
is a highly responsible body; (ii) the power is required to be
exercised in an objective manner; (iii) power conferred is quasi­
judicial and so the eviction orders are to be passed after hearing the
parties and through a speaking order which implies giving of reasons
and which also ensures application of mind to only germane or
relevant material on record eschewing extraneous or irrelevant
material; (iv) any order of summary eviction based on any extremes,
non-germane irrelevant or malafide considerations would be subject
to the writ jurisdiction. Having regard to these aspects mere
absence of a corrective machinery by way of appeal or review would
not render the provision invalid.
On the whole, it appears that the administration enjoys a good
deal of flexibility and it is difficult to challenge successfully in a court.
Wide and vague factors laid down in the statutory provisions for the
guidance of the administrative authority have been upheld. Even a
general statement of policy in the parent Act has been accepted.
In certain situations, the statute though it does not give
discretionary power to the administrative authority to take action,
may give discretionary power to frame rules and regulations
affecting the rights of citizens. The bestowal of such a discretion can
be controlled by the court on the ground of “excessive delegation.”87
(C) Procedure Established by Law under Article 21 and 22 of the
Constitution and Administrative Discretion
Article 21 says, "No person shall be deprived of his life or
personal liberty except according to procedure established by law”.
According to the Supreme Court ruling in Maneka Gandhi v. Union of

Hamdard Dawakhana v. Union of India, AIR 1960 SC 534; Jalan Trading Co. v.
Mill Mazdoor Sa'bha, AIR 1967 SC 691.'
 114

India,88 Article 21 envisages “reasonable, fair and just procedure”.

Strange though it may seem, the Indian constitution visualizes the
possibility of a law of preventive detection as a peace time measure.
Preventive detention here means detention of a person by an
executive authority merely on suspicion without any trial and
conviction by a court of law.
Clause (1) to (7) of article 22 provide some protection to the
individual in preventive detention to contain a few procedural
safeguards mentioned therein. It is judicially established that the
making of an order of preventive detention can be left entirely to the
subjective satisfaction of the executive without the legislature setting
up an objective standard or test for the purpose.89 A law of
preventive detention cannot be faulted on this ground so long as it
provides safeguards laid down in Article 22(4) and (5). The control
of judiciary on preventive detention is only marginal. Courts are
confined to reviewing an order of detention like any other
discretionary order on such grounds as mala-fides irrelevant or
extremeous considerations, non-application of mind by the detaining .
authority. The courts can also scrutinise the order to see whether
the authority has complied with the prescribed procedure90 or kept
himself strictly within the confines of the law.91 They can also
examine the grounds from the point of view of their adequacy to
make a representation” whether the grounds are vague or indefinite
so as to make it difficult for the detenue to make' adequate
representation,92 or whether the particular furnished to him are

AIR 1978 SC 597.

A. K. Gopalan v. State of Madras, AIR 1950 SC 27;
Makhan Singh v. State of Punjab, AIR 1952 SC 27.
Pankaj Kumar v. State of W.B., AIR 1970 SC 97.
Dhananjay v. Distt. Megisatrate, AIR 1982 SC 1315.
sufficient to enable him to do so93 and further, whether more than
reasonable time taken in furnishing the grounds to the detenue.94
Thus, Article 22 permits the bestowal of a large amount of
f.

discretion on the administration to order preventive detention. But it

is also now judicially accepted that a law of preventive detention
must not only fall within Article 22 but must also fulfil the
requirements of Article 21, 19 and 14.95
In A.K. Roy v. Union of India,96 it was contended that various
phrases which occur in Section 3(1) and (2) of the National Security
Act, such as prejudice to the defence of India, ‘security of the state’,
'maintenance of public order’ or ‘maintenance of supplies and
service essential to the community’ are so vague, general and
elastic that even conduct which is otherwise lawful can be
comprehended therein depending upon the whim and caprice of the
detaining authority. Though the Supreme Court accepted the
proposition that” the vagueness and the consequent uncertainty of a
law of preventive detention bears upon the reasonableness of that
law “for a person “cannot be deprived of his liberty by a law which is
nebulous and uncertain", yet the court refused to hold the Act invalid
i

on that ground. The various expressions used in the Act relate to

concepts “which are difficult to encase within the strait jacket of a
definition”. These concepts are not capable of a precise definition
but they “do not elude a just application to practical situations” and
the courts must strive to give to these concepts a “narrower
construction” than what the literal words suggest. The act must be
restricted in its application to as few situations as possible and it is
on this unstated premise that the constitutionality of sec. 3 may be

94
Ujagar Singh v. State of Punjab., AIR 1952 SC 350.
95
Hardhan Saha v. West Bengal, AIR 1974 SC 2154.
96
AIR 1982 SC 710.
 116

upheld, Otherwise, a law of preventive detention, if construed

liberally, is fraught with grave consequences to personal liberty.
However, the expression concerning “maintenance of
supplies” was found to be vague in so far” as it was not made clear
as to which supplies or services were regarded essential to the
community. In the absence of a definition of “supplies and services
essential to community” the detaining authority can extend the
application of this clause to any commodities or services which it
regards essential to the community. The court thus ruled that no
person would be detained under the clause unless “by a law, order
or notification made or published fairly in advance, the supplies and
services, the maintenance of which is regarded as essential to the
community, and is respect of which the order of detention is
proposed to be passed are made known appropriately, to the
public”.97
The court also did not accept the challenge saying that the law
contains certain safeguard subject to which the officers could
exercise the said power, hence the power conferred on district
Magistrate or commissioner of police to pass orders of preventive
detention could not be excessive or unreasonable in view of in built
safeguards.
Thus, article 22 deals with aspect of protection against arrest
and detention in certain cases. It prescribes the minimum procedure
that must be included in any law permitting preventive detention and
if such requirements are not observed the detention infringes the
fundamental right of the detenue guaranteed under Article 21 and
22.98 Article 22 lays down the procedure to be followed in cases of
preventive detention and the said procedure must be strictly

97
Ibid.
98
Abdul Karim v. State of W.B., AIR 1969 SC 1028.
 117

observed as the only prospect of release by a court must be on the

basis of technical or formal defects, a long line of decisions having
held that the scope of judicial review in matters of preventive
detention is practically limited to an enquiry as to whether there has
been strict compliance with the requirements of the law."
Article 22(1) embodies a rule which has always been regarded
as vital and fundamental for safeguarding personal liberty in all legal
system where the rule of law prevails.100 The protection under this
article is not restricted to cases of arrest made by executive or other
non-judicial authorities.101 In case of preventive detention an action
must satisfy the requirements of both Article 19 and 22.102
Preventive detention is hard law and must be applied with
circumspection rationally, reasonably and on relevant materials.103
While passing ah order of detention it is the duty of detaining
authority to strictly comply with the provisions of the constitution.104
Where the documents concerned are referred to relied upon or
taken into consideration by the detaining authority they have to be
supplied to the detenue as part of the grounds so as to enable the
detenue to make an effective representation immediately on
receiving the grounds of detention and if it is not done the detention
would be void.105 The Government should consider the
representation made by the detenue as expeditiously as possible
and such consideration must be independent of any opinion which
may be expressed by the Advisory Board.106

Niranjan Singh v. State of W.B., AIR 1952 SC 106; Makhan Singh v. State of
Punjab, AIR 1952 SC 27.
AIR 1969 Se 1014.
State of M.P. v. Shobharam (Per Hidayatullah J) AIR 1966 SC 1910.
Mohd. Yousuf Rather v. State of J & K., AIR 1979 SC 1925 at 1930.
Raj Kumar Siggh v. State of Bihar, AIR 1986 SC 2173.
State of Punjab v. Jagdev Singh, AIR 1984 SC 444.
Kurit Kumar v; Union of India, AIR 1981 SC-1621.
Khairul Hague v. State of W.B., (1969) 2 SCWR 529.
 118

The detaining authority must before passing the order of

detention necessarily have sufficient reasons which are of subjective
satisfaction to him and apply his mind on the facets of the
allegations and pass the order of detention.107 The procedural
provisions specified in Article 22 are mandatory.108
Thus, Article 22 permits the bestowal of a large amount of
discretion on the administrative authority to order preventive
detention and the control of judiciary is marginal. It can review an
order of detention like any other discretionary orders in practical
manner. However preventive detention law must fall within Article
22 and also completes requirement of Article 21, 19 and 14.
(iv) Unregulated Discretion
An American administrative law, the prevalent trend is towards
structuring discretion by formulating standards, policies and rules.
By contrast in English law the approach is for the administrative
bodies to judge each case on its merits. While it is permissible to
adopt a policy it is not permissible to act under a rule to dictate the
outcome of a discretion. As regards the Indian law a series of
proposition may be set out. First, generally speaking the Indian
courts will demand that in exercising discretion, particularly
subjective discretion the executive must address itself to the merits
of the case. Thus, in Barium Chemicals Ltd. v. Rana109 the Supreme
Court construed the words 'necessary or expedient’ appearing in
Section 19(2) of the Foreign Exchange Regulation Act, 1947 to
mean that ‘the authority concerned has thought over the matter
deliberately and with care and it has been necessary as a result of

Smt. Manjula v. Chief Secretary to Govt. ofA.P., 1998(1) ALT 170.

S. K. Abdul Karim v. State of W.B., AIR 1969 SC 1028, at 1032.
AIR 1972 SC 591.
 119

such thinking to issue the impugned order’. Similarly, in Shalini Soni

v. Union of India,110; the Supreme Court stated.
It is an unwritten rule of the law, constitutional
and administrative, that whenever a decision
making function is entrusted to the subjective
satisfaction of a statutory functionary there is an
implicit obligation to apply the mind to pertinent
and proximate matters only eschewing the
irrelevant and the remote.”
Consequently, in preventive detention cases the detaining
authority must exercise its judgement and decide whether detention
was necessary. He cannot mechanically sign the detention,
order.111 In Ajantha Transport v. T.V.K. Transport,112 the Supreme
Court stated in general terms the proposition that the authority
should not act mechanically in exercising their discretion. For the
same reason, they should not receive dictation from another body.
Thus a Public Prosecutor in deciding whether to commence
prosecution or to discontinue criminal proceedings cannot be
compelled to act by instructions from the governments.113 The same
goes for the detaining authority deciding on preventive detention.114
Secondly, an administrative authority is entitled to adopt a
policy providing that it is prepared to consider individual cases on
their merits. The leading case on this point is Shri Rama Sugar
Industries Ltd. v. State of A.P.115 In that case the appellant applied
for exemption from tax payable under section 21(3) of the A.P.
Sugarcane (Regulation of Supply and Purchase) Act, 1961. Section
21(3) empowered the government to exempt from paying tax “any
new factory” for a period of three years or “any factory Which in the

110
AIR 1981 SC 431.
111
Empror v. Sibanath Banerjee. AIR 1943 FC 73; Teka Bahadur v. State of W.B.
112
AIR 1975 SC-1000
113
Balwant Singh v. State of Bihar, AIR 1977 SC 2265.
114
Vijay Kumar v. State of J & K., (1982)2 SCC 43.
115
(1974)1 SCC 534.
opinion of the government” had “substantially expanded... for a
period not exceeding 2 years”. The government granted exemption
only to factories run by the co-operative societies. The appellant
argued that the government should have considered the application
of each factory on its merits and that the government had fettered its
discretion by adopting a policy of granting such exemption only to
factories run by co-operative societies. The court upheld the policy
of granting the exemption to co-operative sugar societies.
This ruling indicates that while it is lawful to adopt a policy it is
not permissible to adopt a rule that precludes consideration of each
individual application on its merits.
Thirdly, wide discretionary powers, unstructured and
unregulated by ‘principles’, 'standards’ or 'guidelines’, are likely to be
declared unconstitutional being inconsistent with a number of
constitutional provisions in particular Article 14 and 19. Legislatures
while enacting legislation are expected to structure discretion by
formulation of standards. Thus, in Bachan Singh v. State of
Punjab116, legislation providing for death penalty without any
guidelines as regards the sentencing policies was condemned as
unreasonable and arbitrary as being contrary to Article 14 and 21 of
the constitution. In this respect Indian law has moved closer to
American law rather than English law. This is due to the proximity of
the "equal protection clause” of the Indian constitution to the
Fourteenth Amendment of the U.S. Constitution. The position
reached in the Indian Law echoes the words of the American court in
Gulf Colorado Co. v. Ellis117 where it said :
“To carry the presumption to the extent of
holding that there must be some undisclosed
and unknown reason for subjecting certain
116
AIR 1982 SC 1325.
117
(1897)165 US 150.
 individuals or corporations to hostile
discrimination, legislation is to make the
protection a mere rope of sand.”
The Indian Supreme Court expressed a similar sentiment
when it rejected the claim of the ‘absolute’ right to nominate 5 per
cent of candidates for state financed medical college by a state
Government. The court observed that such a power must be
exercised in accordance with criteria laid down in advance.118
D. REVIEW
There is a tendency at present in all democratic countries to
leave a large amount of discretion in the hands of administrative
authorities. Thus, today the question of control of discretionary
powers is perhaps the most crucial and critical problem of the
modern administrative law. In India, courts have to play a major role
in controlling the discretionary powers. They control discretion at
two levels viz, at the level of delegation of discretionary power; and
at the level of actual exercise of discretionary powers.
At the stage of bestowal of discretionary powers by legislature
to the administrative authorities, the judiciary, is quite a large number
of situations, has rejected legislative attempts to confer unregulated
and unguided discretion in area covered by some of the
Fundamental Rights, such as Article 14 and 19 (and now Article 21)
and that it has insisted that the legislature should set up a standard
or lay down a policy or principle, subject to which administrative
discretion may be exercised. The efficacy of this approach, has,
however, been somewhat mitigated and diluted by the judiciary
accepting at times vague and general statements of policy in the
statute as adequate for holding the discretion conferred in
administrative authorities as not “unregulated". The Standard

Suman Gupta v. State of J & K., AIR 1983 SC 1235,

 122

accepted as sufficient for this purpose has been so general and

vague that it is doubtful whether it serves any useful purpose by way
of controlling administrative discretion. Further, quite often the so
called standard is stated not in the substantive clause which confers
discretion on the authority but in the preamble to the statute and so
a doubt remains whether the judiciary can ever enforce such a
?v
standard to control executive action. It is submitted that an
advantage of having a statement of a standard or policy in the
relevant statute is to enable the judiciary to ascertain whether the
administrative action is in conformity with the standard. This
purpose can be effectively achieved only if the courts insist that the
legislature expresses its policy or standard or principle clearly, and in
such a way as would help the judiciary to keep the exercise of
discretion within the four corners of the legislative policy.
Further there is no uniformity yet on what procedural
safeguards ought to be there in legislation under different
Fundamental Rights. In the case of some like freedom of “trade"
and “speech” and “association”, the judiciary has insisted on more
substantial safeguards than in the case of other fundamental rights,
like those of “movement” or “residence’, though even amongst the
former category there is a lack of consistency in the judicial attitude.
Thus, between “freedom of speech” and "freedom of association”,
the latter is a better protected right. In the case of “association," the
courts have shown a disinclination to leave matters finally in
executive hands without judicial control. The weakest link in the
chain is the right of movement where the judiciary has not found it
possible or necessary to insist on even such a. weak safeguard as
that of an advisory board for externment of a person from a local
area. If the judiciary has found it necessary to insist on more than
an advisory board in the case of the right of association, there does
not appear to be any convincing reason why at least an advisory
board be not required in cases of externment. Thus, it appears, is a
minimum safeguard which the judiciary should impose under the
term “reasonable” in the relevant Fundamental Right.
The minimum safeguards in cases of grant and cancellation of
licences have not yet been clearly established. What can be said
definitely in this connection is that absolute discretion cannot be
conferred on an administrative authority and that a safeguard that
the authority should record its reasons for taking action is not
sufficient by itself, and that something more than that is necessary.
As regards cancellation of a licence, the courts now invariably insist
on a fair hearing as a procedural safeguard.
From the foregoing discussion, it also reveals that except now
and than, the court has been easily satisfied by broad or even vague
statements of policy in upholding legislation under Article 14. It has
shown a great deal of deference to legislation conferring discretion
on the administration. Article 14 constitutes a great potential
reservoir of judicial power and can serve as a great bulwark against
excessive executive discretion. If courts handle Article 14 carefully
and insist on a more definite, and precise statement of policy, the
courts could effectively control the administration.
It may not be out of place to mention here that in the
Fundamental Rights there is a source of judicial power which, if fully
exploited, can go a long way in mitigating the dangers of too much
administrative discretion-a development which is causing a good
deai of anxiety to thinking people in other democratic countries.
These rights are real and not notional, they are substantial and not
fictional, and they should be treated as such. Fortunately, the Indian
Constitution has within itself several checks and balances and it
depends upon us how we use them. It will lead to better democratic
 124

ideals and traditions if we exploit fully the expedients which the

constitution has placed at our disposal for controlling administrative
action and keeping it within proper bounds. In a welfare state, a
balance has to be drawn between government control and individual
freedom, and it is for the courts to see that this balance is not titled
too much in favour of the government as against the individual.