Module 4: Administrative Discretionary Powers and its Controls

Administrative Discretion
Meaning
Discretion means choosing from amongst the various available alternatives in accordance with rule of reason
and justice and thus it should not be taken to mean choosing arbitrarily according personal whims. The
choosing of alternatives must be legal and regular and not arbitrary, fanciful and vague.
Administrative discretion refers to the power to choose between courses of conduct in the administration of
an office or a duty pertaining thereto. It is the exercise of professional expertise and judgment, as opposed to
strict adherence to regulations or statutes, in making a decision or performing official acts or duties.
The word "discretion" connotes necessarily an act of a judicial character, and, as used with reference to
discretion exercised judicially, it implies the absence of a hard and fast rule, and it requires an actual exercise
of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and
just determination, and a knowledge of the facts upon which the discretion may properly operate.
Definition
Salmond-
“Matters of right and judicial discretion are not the subject of evidence and demonstration, but of argument,
and are submitted to the reason and conscience of the Court in determining questions of judicial discretion it
seeks to discover the right or justice of the matter.”
Lord Diplock-
“The very concept of administrative discretion involves a right to choose between more than one possible
course of action upon which there is room for reasonable people to hold different opinions as to which is to
be preferred.”
Edward Coke-
“Discretion is a science or understanding to discern between falsity and truth, between right or wrong, between
shadows and substance, between equity and colourable glosses and pretences and not to do according to their
wills and private affections.”
Prof. Freund-
“When we speak of administrative discretion, we mean that a determination may be reached, in part at least,
upon the basis of consideration not entirely susceptible of proof or disproof.”
Oxford Dictionary of Law-
“The discretionary powers of an executive nature that are conferred by the legislature on Govt., ministers,
public and local authorities and other bodies and persons for the purpose of giving detailed effect to the policy
intended by the legislature itself.”
Black Law’s Dictionary-
“Administrative discretion would be a public official’s or agency’s power to exercise judgment in the
discharge of its duties.”
Doctrine of Discretion
It implies power to make a choice between an alternative course of action or inaction. A public officer has
discretion whenever the effective limits of his power leave him free to make a choice among possible courses
of action or inaction.
The term discretion itself implies vigilance, care, caution and circumspection. When the legislature confers
discretion on a court of law or on an administrative authority, it also imposes responsibility that such discretion
is exercised honestly, properly and reasonably.

Growth of Discretionary Powers

Reasons:
 The welfare notion of the government and adoption of other development policies.
 Environmental Control mechanisms.
 Lack for technical competence and requirement of expert advice on the part of the legislation.
 Discretion is used to deal with unforeseen situations.
 Complexity of subject matters and variety of problems to be encountered by the administrative
authorities.
In addition to the reasons stated above administrative discretion is inevitable because it is done to seek
fulfillment of certain purposes. Broadly the functions can be classified as follows: -
1. At the time of laying down a law the legislators leave certain gaps and ambiguities in the law. These
gaps and ambiguities are to be filled by the exercise of administrative authorities on case to case basis.
2. Determination of rights and interest of people that depends upon the exercise of discretion of the
authorities.
3. The policy objectives are sought to be widened by the use of administrative discretion.
4. It is used to handle matters which require technical expertise as the officers of a technical department
are more equipped to handle such matters as compared to the legislatures.
5. It provides flexibility to cater needs of different situations.
6. It provides a time saving mechanism.
7. Since it grants certain power to authorities it also fix up their responsibilities as they are accountable
for their action.
8. Davis: “All along the line an enormous discretionary power is the power to do nothing. The power to
do nothing, or almost nothing, or something less than might be done, seems to be the omnipresent
power."
The duty of Court is to confine itself to the question of legality. Its concern should be whether –
1. a decision-making authority exceeded its power;
2. committed an error of law;
3. committed a breach of the rules of natural justice;
4. reached a decision which no reasonable tribunal would have reached, and
5. abused its power

Grounds of Judicial control over administrative discretion

In India, the Courts will interfere with the discretionary powers exercised by the administration in the
following circumstances:
I. Failure to exercise discretion
II. Abuse of discretion
Failure to exercise discretion
1. Non - application of mind-
Where an authority is given discretionary powers, it is required to exercise it by applying mind to the facts
and circumstances of the case in hand. If it does not do so, its action or decision will be bad.
Case Law: Swaran Singh v. State of U.P. (AIR 1998 SC 2026)-
In this case, Doodh Nath was an M.L.A. of the U.P. Assembly when he was convicted of the offence of
murder. He was unseated as a sequel to the said conviction and his wife succeeded in becoming his successor
in the same constituency. He was convicted and sentenced to imprisonment for life along with some other
persons who too were involved in the same offence. His appeal to the High Court and Special Leave petition
to the SC did not give any help to extricate himself from the penal clutches of the offence.
Within less than two years, however, he was released as the Governor of the state granted the remission under
Article 161 of the Constitution. The son of the deceased alleged that when Governor passed the order granting
remission of sentence Doodh Nath was already accused in five other criminal cases involving serious offences.
That and many other relevant materials were not posted before the Governor when he considered the question
of granting reprieve to the convict.
The SC, therefore, quashed the impugned order to enable the Governor of U.P. to pass a fresh order in the
petition filed by the respondent for remission of the sentence in the light of the observations made.
2. Acting under dictation
Where the authority exercises its discretionary power under the instructions or dictation from superior
authority, it is taken as non-exercise of power by the authority and its decision or action is bad.
Case Law: Purtabpore Company Ltd. v. Cane Commissioner of Bihar (1969)-
In this case the Cane Commissioner under Cl.6 (1) of the Sugar Cane (Control) Order, 1955, had the power to
reserve sugarcane areas for the sugar factories, but at the dictation of the Chief Minister, excluded 99 villages
from the area reserved by him in favour of the appellant company.
The Court quashed the exercise of discretion by the Cane Commissioner on the ground that he abdicated his
power by exercising it at the dictation of some other authority; therefore, it was deemed that the authority had
not exercised its discretion at all.
3. Sub – delegation (‘Delegatus non potest delegare’ – a delegate cannot further delegate)
Proper test whether sub-delegation is legal or not is to decide whether the final decision rests with the authority
on whom power is conferred by the Act. If such decision is taken by the authority, the decision is valid. If the
decision is taken by any other authority, it would be invalid and unlawful.
Case Law: Pradyat Kumar Bose v. C.J. of Calcutta H.C. (AIR 1956 SC 285)-
The appellant was appointed in March 1948 by the Chief Justice of the Calcutta High Court as Registrar and
Accountant-General of the High Court on its original side and confirmed therein in November 1948. He was
dismissed from that post with effect from 1st September 1951 by the Chief Justice by his order dated 3rd
September 1951.
There were various charges against the appellant and Mr. Justice Das Gupta was deputed by the Chief Justice
to make an enquiry and submit a report. Mr. Justice Das Gupta made a full enquiry and submitted a report in
which he exonerated the appellant in respect of some of the charges but found him guilty in respect of other
charges.
The Chief Justice issued notice to the appellant intimating that he agreed with the report and asked him to
show cause why he should not be dismissed from his post. After he was given an opportunity to show cause,
the appellant was dismissed by an order of the Chief Justice.
The three main points for consideration by the Supreme Court were:
  Whether the Chief Justice of the High Court had no power to dismiss the appellant?
 Even if the Chief Justice had such power whether he could not delegate the enquiry into the charges
to another Judge but should have made the enquiry himself?
 Whether the order of dismissal by the Chief Justice could have been passed without previous
consultation with the Public Services Commission as provided by Art. 320 of the Constitution?
The SC held that it was not a case of delegation of power by the C.J. but merely of employing a competent
officer to assist the C.J.
4. Imposing fetters on discretion
An authority with discretionary power must exercise the same after considering individual cases. Instead of
doing that if the authority imposes fetters on its discretion by adopting fixed rules of policy to be applied in
all cases before it, there is failure to exercise discretion on the part of that authority.
Case Law: Sri Rama Sugar Industries Ltd. v. State of A.P. (AIR 1974 SC 1745)-
In this case tax was imposed on the purchase of sugarcane but the Govt. was granted power under Sec. 21(3)(b)
of the A.P. Sugarcane (Regulation of Supply and Purchase) Act, 1951 to exempt any new sugar factory from
payment of tax for a period of one year.
The Govt. however by way of policy decision decided to grant such exemption only in favour of the co-
operative sector. The appellant challenged the said policy. The Court upheld the action of the Govt.
5. Discretionary power coupled with duty
De Smith states, “discretionary powers are frequently coupled with duties.”
In the words of Lord Blackburn, “enabling words were always compulsory where the words were to effectuate
a legal right.”
Case Law: Municipal Council, Ratlam v. Vardichan (AIR 1980 SC 1622)-
The residents (respondents) of a prominent residential locality of the Municipality (petitioner) in their
complaint under s. 133 Criminal Procedure Code to the Sub-Divisional Magistrate averred that the
Municipality had failed despite several pleas, to meet its basic obligations, like provision of sanitary facilities
on the roads, public conveniences for slum dwellers who were using the road for that purpose, and prevention
of the discharge from the nearby Alcohol Plant of maladorous fluids into the public street, and that the
Municipality was oblivious to the statutory obligation envisaged in s. 123 M. P. Municipalities Act, 1961.
The Municipal Council contested the petition on the ground that the owners of houses had gone to that locality
on their own choice, fully aware of the insanitary conditions and therefore, they could not complain. It also
pleaded financial difficulties in the construction of drains and provision of amenities.
The Magistrate found the facts proved, and ordered the municipality to provide the amenities and to abate the
nuisance by constructing drain pipes with flow of water to wash the filth and stop the stench and that failure
would entail prosecution under s. 188 I.P.C.
The order of the Magistrate was found unjustified by the Sessions Court, but upheld by the High Court.
In the Special Leave Petition by the Municipality to the SC on the question whether a Court can by affirmative
action compel a statutory body to carry out its duty to the community by constructing sanitation facilities at
great cost and on a time-bound basis?
Krishna Iyer J. observed that, “this is a public duty implicit in the public power to be exercised on behalf of
the public and pursuant to a public proceeding.”
The state will realize that Art. 47 makes it a paramount principle of governance that steps are taken for the
improvement of public health as amongst its primary duties. The municipality also will slim its budget on low
priority items and elitist projects to use the savings on sanitation and public health.
Excess or Abuse of Discretion
1. Acting without jurisdiction
Case Law: Govt. of A.P. v. M.T. Khan (AIR 2004 SC 428)-
These two appeals raise an interesting question involving the scope and ambit of Article 161 of the
Constitution of India.
The question is whether the Governor of a particular State in exercise of clemency powers under Article 161
of the Constitution can grant remission to prisoners convicted by courts outside the concerned State, but
undergoing sentences in jails in the State? Present appeals relate to the State of Andhra Pradesh.
In this case two convicts by competent courts of M.P. and Maharashtra were transferred to A.P. jail. The
Governor of A.P. granted remission to–
 all convicted prisoners sentenced to imprisonment for life and governed by Section 433-A, Cr.P.C.,
who have completed 14 years of total sentence including 10 years of actual sentence as on 14.1.1995
shall be released.
 all convicted prisoners sentenced to imprisonment for life and governed by Section 433-A, Cr.P.C. aged
more than 65 years and have undergone more than 5 years of actual sentence and a total sentence of 7
years as on 14.01.1995 shall be released".
But these two convicts were not granted remission under this notification.
The SC held that the High Court was not justified in obliterating a part of the G.O. and extending the benefits
to the concerned prisoners. It amounts to the Court re-making the policy and redoing the G.O. itself. The High
Court's judgment to that extent is erroneous and needs to be set aside.
But after serving the requisite sentence, the appropriate Government which according to this Court in the
present case are States of Madhya Pradesh and Maharashtra respectively, their cases shall be considered by
those two State Governments who shall take necessary decision as to whether their release is permissible and
desirable.
2. Mala fide (dishonest intention and corrupt motive)
Mala fide exercise of discretionary power is always bad and taken as abuse of discretion. If the discretionary
power is exercised by the authority with bad faith or dishonest intention, the action is squashed by the court.
Case Law: Hem Lall Bhandari v. State of Sikkim (AIR 1987 SC 762)-
Hem Lall Bhandari, an advocate was detained under the National Security Act, 1980. He alleged that the C.M.
wanted him to join politics. But he was refused to do so, then he was detained. No material whatsoever placed
on record to substantiate the allegations.
The SC held that if reasons are not so recorded, the order of detention will automatically fail. Even if reasons
are recorded they have to inspire confidence in the Court and are subject to legal scrutiny. If the reasons are
unsatisfactory, Courts would still quash the order of detention. The Court held that the order of detention is
bad and quashed.
3. Leaving out relevant consideration
The administrative authority exercising the discretionary power is required to take into account all the relevant
facts. If it leaves out relevant consideration, its action would be bad.
Case Law: Rampur Distillery Co. Ltd. v. Company Law Board (AIR 1970 SC 1789)-
Govan Brothers were since 1943, the managing agents of the Rampur Company. In May 1964 criminal
proceedings which were pending were lodged against V.H. Dalmia, the managing director of Govan Brothers,
pursuant to the report of the Bose Inquiry Commission that V.H. Dalmia was in the year 1946-47 guilty of
grossly improper conduct in relation to several companies of which he was a director.
In September 1964 the company applied for approval under Sec 326 of the Companies Act, 1956 of the
reappointment of Govan Brothers as managing agents. The Company Law Board approved the extension of
the tenure for three years. When approval was sought for another extension till 1970 the Board rejected the
application.
The High Court set aside the Board's order and directed it to take into consideration the entirety of the “acts
and activities” of V.H. Dalmia in forming the requisite opinion under s. 326(2) (b). The Board and the
company preferred appeals to this Court.
The SC dismissing the appeal, held that the past conduct of the directors was a relevant consideration, but
before final decision, it should take into account their present activities also. Therefore, the action of the Board
was declared as invalid.
4. Irrelevant consideration
The consideration will be irrelevant if there is no reasonable connection between the facts and the grounds.
Case Law: Dr. Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740)-
Under Rule 30(1)(b) of Defence of India Rules 1962, the authority was empowered to detain a person to
prevent subversion of ‘public order.’ The petitioner was detained with a view to prevent him from acting in a
manner prejudicial to the maintenance of ‘law and order.’ The SC set aside the order of detention and held
that the term ‘law and order’ was wider than the term ‘public order’.
The expression “law and order” does not find any place in the rule and is not synonymous with "public order'.
The SC held that “law and order” is a comprehensive expression in which would be included not merely public
order, but matters such as public peace, tranquility, orderliness in a locality or a local area and perhaps some
other matters.
“Public order” is something distinct from order or orderliness in a local area. Under Rule 30(1)(b) of Defence
of India Rules 1962, no power is conferred upon that authority to detain a person on the ground that it is
necessary so to do in order to prevent that person from acting in a manner prejudicial to the maintenance of
order in a local area.
5. Mixed consideration
When the discretionary power exercised by the authority on both relevant and irrelevant grounds, the court
will examine whether or not the exclusion of irrelevant or non-existence considerations would have affected
the ultimate decision.
Case Law: Pyare Lal Sharma v. Managing Director, Jammu & Kashmir Industries Ltd. (AIR 1989 SC 1854)-
The Regulation 16.14 of the Jammu & Kashmir Industries Employees Service Rules & Regulations, was
amended on April 20, 1983 which stated that ‘if the employee remains on an unauthorized absence or if he
takes part in active politics, in such cases the services shall be terminated if he fails to explain his conduct
satisfactorily within 15 days from the date of issue of notice and the management shall be empowered to take
a decision without resorting to further enquiries.
Pyare Lal Sharma was employed as a Chemical Engineer by the Jammu & Kashmir Industries Ltd. The
Company issued a show cause notice on 21.4.83 in terms of the added clauses for his unauthorized absence
from duty. As no reply was submitted, the M.D. terminated his services by an order dated 14.6.1983. Sharma
challenged the order of termination by way of a writ petition before the J & K High Court on three grounds
namely:
  violation of Rules of Natural Justice
 that the Board of Directors having appointed Sharma, the M.D. who is subordinate authority
could not terminate his services
 that the regulation 16.14 was arbitrary and violative of Art. 14 of the Constitution of India.
Dismissing the appeal of the Company, the SC stated that it is a basic principle of natural justice that no one
can be penalized on the ground of a conduct which was not penal on the day it was committed. The date of
show cause notice being April 21, 1983 the unauthorized absence from duty which has been taken into
consideration is from December 20, 1982 to April 20, 1983. Whole of this period being prior to the date of
amendment of regulation 16.14, the same could not be made as a ground for proceeding underground (c) of
Regulation 16.14.
The notice served on the appellant was thus illegal and as a consequence the order of termination cannot be
sustained and has to be set aside.
6. Colorable exercise of power
Where a power is exercised by the authority ostensibly for the purpose for which it was conferred, but in
reality for some other purpose, it is called colourable exercise of power. This is also known as fraudulent
exercise of power. It is based on the principle that an AA cannot exercise power for a purpose not warranted
by law.
Case Law: Dr. D.C. Wadhwa & Ors v. State of Bihar & Ors. (AIR 1987 SC 579)-
The SC held that When the constitutional provision stipulates that an Ordinance promulgated by the Governor
to meet an emergent situation shall cease to be in operation at the expiration of six weeks from the reassembly
of the Legislature and the Government if it wishes the provisions of the Ordinance to be continued in force
beyond the period of six weeks has to go before the Legislature which is the constitutional authority entrusted
with the law making function, it would most certainly be a colourable exercise of power for the Government
to ignore the Legislature and to re promulgate the Ordinance and thus to continue to regulate the life and
liberty of the citizens through Ordinance made by the Executive.
Such a stratagem would be repugnant to the constitutional scheme, as it would enable the Executive to
transgress its constitutional limitation in the matter of law making in an emergent situation and to covertly and
indirectly arrogate to itself the law making function of the Legislation.
7. Unreasonableness
A discretionary power confined on an administrative authority must be exercised by that authority reasonably.
If the power is exercised unreasonably, here there is an abuse of power and the action of the authority will be
ultra vires.
Case Law: Ranjit Thakur v. UOI (AIR 1987 SC 2386)-
The appellant, in this case, a Signal Man in a Signal Regiment of the Armed Services, while serving out a
sentence of 28 days' rigorous imprisonment imposed on him by the Commanding officer of the Regiment
respondent No. 4, for violating norms for presenting representations to higher officers, was alleged to have
committed another offence by refusing to eat his food on March 29, 1985 when ordered to do so. He was
charged under section 41(2) of the Army Act, 1950 for disobeying a lawful command given by his superior
officer.
A sentence of rigorous imprisonment for one year was imposed by a Summary Court Martial. He was removed
to the civil prison and he served out the sentence.
The SC held that the punishment of dismissal and sentencing of one year rigorous imprisonment on an Army
Official for disobeying an order of superior officer to eat food was hold thoroughly unreasonable, grossly
disproportionate and excessively high.
The Court set aside dismissal order and held that appellant entitled to be reinstated with all monetary and
service benefits.
8. Exceeding Jurisdiction
A question whether the authority acted within the limits of its power or exceeded its jurisdiction depends upon
he facts and circumstances of each case and should be decided by keeping in view the provisions of the Act
and conferment of power on the authority.
Case Law: Indian Council of Legal Aid & Advice v. BCI (AIR 1995 SC 691)-
The Bar Council of India by Resolution No. 64 of 1993 dated 22-8-1993 added Rule 9 in Chapter III of Part
VI of the Bar Council of India Rules which resolution was gazetted on 25-9-1993. The said newly added rule
reads as under: “A person who has completed the age of 45 years on the date on which he submits his
application for his enrolment as an advocate to the State Bar Council shall not be enrolled as an advocate.”
All the State Bar Councils in the country were duly informed about the insertion of the said rule. The legality
and validity of the said rule is questioned as inconsistent with Articles 14, 19(1)(g) and 21 of the Constitution
and Section 24 of the Advocates Act, 1961.
The Parent Act (The Advocates Act, 1961) enabled the BCI to laydown conditions subject to which an
advocate “shall have right to practice.”
Declaring the rule ultra vires, the SC held that the BCI can make the rule only after a person is enrolled as an
advocate, i.e. at post - enrolment stage. It cannot frame a rule barring persons from enrollment. The rule was
thus inconsistent with the Parent Act and other Articles of the Constitution.
9. Non-compliance with procedural requirements and PNJ
Violation of PNJ makes the exercise of power ultra vires and void. If the exercise of power is purely
administrative in nature , if it adversely affects any person, the PNJ must be observed and the person concerned
must be heard.
Case Law: K.I. Shephard & Ors. v. Union of India (AIR 1987 SC 431)-
The Hindustan Commercial Bank, the Bank of Cochin Ltd. and Lakshmi Commercial Bank were amalgamated
with Punjab National Bank, Canara Bank, State Bank of India respectively in terms of separate schemes drawn
under Sec. 45 of the Banking Regulation Act,1949, and pursuant thereto 125 employees of these banks were
excluded from employment, and their services were not taken over by the respective transferee banks. Some
of these excluded employees filed writ petitions before the High Court which granted partial relief, but on
appeal by the transferee Bank the Writ Petitions were dismissed by the Division Bench.
The SC held that rules of natural justice apply to administrative action and the decision to exclude a section
of employees without complying with requirements of natural justice was bad.
10. Use for improper purpose
The discretionary power is required to be used for the purpose for which it has been given. If it is given for
one purpose and used for another purpose, it will amount to abuse of power. (2G Scam, OMC Scam etc.)
Case Law: Bangalore Medical Trust v. K.P. Muddappa (AIR 1991 SC 1902)-
A site in the city of Bangalore was reserved as an open space in an improvement scheme adopted under the
City of Bangalore Improvement Act. 1945. This Act was replaced by the Bangalore Development Authority
Act, 1976 and the scheme prepared under the repealed enactment was deemed to have been prepared and duly
sanctioned by the Government in terms of the new Act. In the scheme, the open space in question had been
reserved for a public park. However, pursuant to the orders of the State Government (CM), and by a
Resolution, the Bangalore Development Authority allotted the open space in favour of the appellant, a private
medical Trust, for the purpose of constructing a hospital.
This allotment and diversion of the user of the site was challenged before the High Court by the respondents,
as residents of the locality and as general public, contending that it was contrary to the provisions of the Act
and the scheme sanctioned thereunder, and the legislative intent to protect and preserve the environment by
reserving open space for ventilation, recreation and play grounds and parks for the general public. The HC
dismissed the petition.
The SC held that the entire proceedings before the State Government suffered from absence of jurisdiction.
Even the exercise of power was vitiated and ultra vires. Therefore, the orders of the Government to convert
the site reserved for publicpark to civic amenity and to allot it for private nursing home to the appellant Trust
and the resolution of the Development Authority in compliance of it were null, void and without jurisdiction.

Fundamental Rights and administrative discretion

Limitation on grant of discretionary power and Article- 14
Article 14 of the Indian Constitution provides certain limitation on the conferment of discretionary powers.
Article 14 provides a fundamental right of equality before law and equal protection of law to the citizens of
India. It lays down that laws should be applicable to every person in the same sense and should not discriminate
one person against another.
Any law which discriminates between persons or classes of persons would be invalid and void. A similar
criterion has been adopted while checking the validity of the discretionary power exercised by the
administrative authorities.
Case Law: West Bengal v. Anwar Ali Sarkar (AIR 1952 SC 75)-
The West Bengal Special Courts Act, 1950 was entitled “An Act to provide for the speedier trial of certain
offences,” and the object of the Act. as declared in the preamble, was “to provide for the speedier trial of
certain offences.”
Section 3 of the Act empowered the State Government by notification in the official gazette to constitute
Special Courts, and Sec. 5 provided that “A Special Court shall try such offences or classes of offences or
cases or classes of cases, as the State Government may by general or special order in writing, direct.”
Act laid down a procedure for trial before Special Courts which was different in several respects from that
laid down by the for trial of offences generally. The respondent, who was convicted by a Special Court which
tried his case under a notification issued by the Government under Sec. 5, contended that the said section was
unconstitutional and void in as much as it contravened Art. 14 of the Constitution, which provides that “the
State shall not deny to any person equality before the law or the equal protection of the laws within the territory
of India.”
The SC held that the executive authorities could arbitrarily select a case for trial by the special courts. It was
held that in so far as the Act empowered the government to have any case or class of cases or offence or class
of offences tried by the special courts, violated Article 14 of the Constitution.
Case Law: R. Ratnakar Rao v. State of Andhra Pradesh (10/05/1996)-
The petitioners are the owners of goods motor vehicles and were plying the same on the basis of national/State
permits issued by the appropriate transport authorities. When they challenged the validity of GO No.54 dated
March 31, 1995 issued by the Department of Transport [Roads and Buildings] enhancing the compounding
fee U/s 200, from Rs.10 per k.g. to Rs.100/- per k.g. as being violative of the Motor Vehicles Act, 1988 and
arbitrary being violating Article 14 of the Constitution, the Division Bench in the impugned judgment upheld
the said GO.
The SC held that normally the discretion is held not to be unguided, unanalyzed or arbitrary if there are built
in checks against its abuse.
The two built in checks are:
 If the power is given to a high official or authority;
 There are provisions requiring that the exercise of discretion should be preceded by an inquiry
conducted in accordance with a quasi-judicial procedure.
The SC held that the Government as a delegate, did not exceed its power under Section 200 of the Act in
prescribing the compounding fee for the offence punishable under Section 194 of the Act.
Limitation on grant of Discretionary Power and Article- 19
Article 19 of the Constitution provides the right to freedom of speech and expression along with several other
rights. It is basically a privilege given to the citizens of India that they have right to speech and expression and
other rights under this chapter.
When a person exercises these rights other persons are under a duty not to infringe or curtail such rights.
Therefore, grant of any discretionary power which acts as a hindrance to the fundamental right of the citizens
or curtails such fundamental rights is declared void. Therefore, Art. 19 acts as a regulator on the conferment
of discretionary powers.
Art. 19 says, Protection of certain rights regarding freedom of speech, etc.
(1) All citizens shall have the right
 to freedom of speech and expression;
 to assemble peaceably and without arms;
 to form associations or unions;
 to move freely throughout the territory of India;
 to reside and settle in any part of the territory of India;
 to practice any profession, or to carry on any occupation, trade or business.
If any discretionary power is granted which is violative of the above mentioned rights than such grant of
discretionary power would be void. But the State under Art 19 (2) to (6) can impose reasonable restrictions
on the above mentioned rights.
The Court determines the reasonableness of the restrictions. While deciding the reasonableness of a restriction,
the principle laid down is that the power conferred on the executive by the law should not be arbitrary and
unregulated and it should not be left entirely to the discretion of an authority to do as it likes without any check
and control by the above authority.
Art. 19(1)(a) &19(2)- Freedom of speech and expression
Case Law: Khwaja Ahmed Abbas v. Union of India (AIR 1971 SC 481)-
The petitioner made a documentary film called "A Tale of Four Cities" which attempted to portray the contrast
between the life of the rich and the poor in the four principal cities of the country. The film included certain
shots of the red light district in Bombay. Although the petitioner applied to the Board of Film Censors for a
`U' Certificate for unrestricted exhibition of the film, he was granted ‘A’ certificate only for exhibition
restricted to adults. On an appeal made to it by the petitioner, the Central Government issued a direction on
July 3, 1969 that a ‘U’ Certificate may be granted provided certain specified cuts were made in the film.
The petitioner thereafter field the present petition seeking a declaration that the provisions of Part 11 of the
Cinematograph Act, 1952, together with the rules prescribed by the Central Government on February 6, 1960
in the exercise of its powers under Sec. 5-B of the Act were un constitutional and void; he further prayed that
the direction dated July 3, 1969 should be quashed. The petitioner claimed that his fundamental tight of free
speech and expression was denied by the order of the Central Government and that he was entitled to a 'U'
Certificate for the film as of right.
The SC held that unguided or arbitrary discretion without any procedural safeguards or legislative policy
should not be given to an administrative officer to regulate freedom and speech and expression. Also,
discretion has to be exercised only for the purpose mentioned in Art 19 (2).
Art.19(1)(c) & 19(4)- Freedom to form Associations
Case Law: State of Madras v. V.G. Row (AIR 1952 SC 192)-
In this case, the Government Order No. 1517, Public (General) Department, runs as follows:- “Whereas in the
opinion of the State Government, the Association known as the People's Education Society, Madras, has for
its object interference with the administration of the law and the maintenance of law and order, and constitutes
a danger to the public peace.”
Now, therefore, His Excellency the Governor of Madras, in exercise of the powers conferred by Section. 16
of the Indian Criminal Law Amendment Act, 1908 hereby declares the said association to be an unlawful
association within the meaning of the said Act.
The SC held that Sec. 15 (2)(b) of the Criminal Law Amendment Act, 1908, as amended by the Criminal Law
Amendment (Madras) Act, 1950, falls outside the scope of authorized restrictions under clause (4) of article
19 and is, therefore, unconstitutional and void.
Art. 19(1)(e) & 19(5) – Freedom to Reside and Settle
Case Law: Ebrahim Vazir Mavat v. State of Bombay (AIR 1954 SC 229)-
In this case the SC rejected a statutory provision, Sec.7 of the Influx from Pakistan (Control) Act, 1949,
seeking to authorise the Govt. to impose penalty for the removal of a citizen from India on ‘reasonable
suspicion entertained’ by it that the person concerned had committed an offence against the permit law.
The SC held that Sec. 7 of the Influx from Pakistan (Control) Act, 1949 is void under Art. 13(1) in so far as it
conflicts with the fundamental Right of a citizen of India under Art.19(1)(e) of the Constitution and the order
of physical removal of the citizen from India, is therefore liable to be set aside.
Art. 19(1)(d), 19(1)(e) & 19(5) - Right to Movement and Residence
Case Law: Hari Khemu Gawali v. Dy. Commissioner of Police (AIR 1956 SC 559)-
In this case an order of externment was passed against the petitioner who challenged the order on the ground
that Sec. 57 of Bombay Police Act, 1951, contravened clauses(d) and (e) of Article 19(1) of the Constitution,
that the provisions of the said section imposed unreasonable restrictions on the petitioner's fundamental rights
of free movement and residence and that the order passed against him was illegal in as much as it was based
on vague allegations and inadmissible material.
The SC held that Section 57 of the Bombay Police Act, 1951 is not unconstitutional, because, it is an instance
of the State taking preventive measures in the interests of the public and for safeguarding individual rights, by
preventing a person, who has been proved to be a criminal from acting in a way which may be a repetition of
his criminal propensities and the restrictions that it imposes on the individual's right to reside in and move
freely in any part of India are reasonable within the meaning of clause (5) of Art. 19 of the Constitution.
Art.19(1)(g) & 19(6) – Freedom to carry on Trade and Commerce
Case Law: Chintaman Rao v. The State of Madhya Pradesh (AIR 1951 SC 118)-
In this case an order was issued by the Deputy Commissioner under the provisions of the Central Provinces
and Berar Regulation of Manufacture of Bidis (Agricultural Purposes) Act, 1948, forbidding all persons
residing in certain villages from engaging in the manufacture of bidis during the agricultural season. A
manufacturer of bidis and an employee in a bidi factory residing in one of the said villages applied under Art.
32 of the Constitution for a writ of mandamus alleging that since the Act prohibited the petitioners from
exercising their fundamental right to carry on their trade or business which was guaranteed to them by cl. (1)
(g) of Art. 19 of the Constitution, the Act was void.
The SC held that the object of the statute, namely, to provide measures for the supply of adequate labour for
agricultural purposes in bidi manufacturing areas of the Province could well have been achieved by legislation
restraining the employment of agricultural labour in the manufacture of bidis during the agricultural season
without prohibiting altogether the manufacture of bidis. As the provisions of the Act had no reasonable relation
to the object in view, the Act was not a law imposing “reasonable restrictions” within the meaning of cl. (6)
of Art-19 and was therefore void.
Arts. 21 & 22 – Personal Liberty and Preventive detention
Case Law: Dr. Ram Krishan Bhardwaj v. The State of Delhi (AIR 1953 SC 318)-
The petitioner was arrested on the 10th March, 1953, under an order of the District Magistrate of Delhi made
under section 3 of the Preventive Detention Act 1952. The grounds of detention were communicated to the
petitioner on the 15th March, 1953.
The constitutional requirement that the grounds must not be vague must be satisfied with respect to each of
the grounds communicated to the person detained subject to the claim of privilege under cl. (6) of Art.22 of
the Constitution. Where one of the grounds mentioned was “you have been organising the movement (Praja
Parishad Movement) by enrolling volunteers among the refugees in your capacity as President of the Refugee
Association of Bara Hindu Rao”:
The SC held, that this ground was vague and even though the other grounds were not vague the detention was
not in accordance with the procedure established by law and was therefore illegal.

Reasonable exercise of power and Wednesbury Principle (Irrationality)

Case Law: Associated Provincial Picture Houses v. Wednesbury Corporation (1948) KB 223)-
Irrationality as a ground of judicial review was developed by the Court in this case, later came to be known as
“Wednesbury Test” to determine irrationality of administrative action.
Facts: The plaintiff-company was granted licence under the Cinematograph Act, 1909 subject to the condition
that “no children under the age of 15 years shall be admitted to any entertainments whether accompanied by
an adult or not.” This condition was challenged as unreasonable and the provisions of Sunday Entertainments
Act, 1932 were also challenged.
Judgment: The court held that it could not intervene to overturn the decision of the defendant simply because
the court disagreed with it. To have the right to intervene, the court would have to conclude that:
 in making the decision, the defendant took into account factors that ought not to have been taken
into account, or
 the defendant failed to take into account factors that ought to have been taken into account, or
 the decision was so unreasonable that no reasonable authority would ever consider imposing it
A decision of the Administrative Authority shall be considered as irrational:
 If it is without the authority of law.
 If it is based on no evidence.
 If it is based on irrelevant and extraneous consideration.
 If it is so outrageous in its defiance to logic or accepted norms of moral standard that no sensible
person, on the given facts and circumstances, could arrive at such a decision.
If the decision of the Authority is so capricious, perverse, arbitrary, unreasonable and manifestly
unjust that no sensible person can come to that conclusion, court would quash it.
 In applying this test court would not apply strict scrutiny and would not judge adequacy or
sufficiency of the material unless fundamental rights are violated, and would not substitute its
judgment with the judgment of the administrator unless the decision is perverse.
 It is so unreasonable that it may be described as done in bad faith.
Irrationality in legal sense may also include-
1. Taking into consideration irrelevant material.
2. Ignoring relevant considerations.
3. Using power for improper purpose.
4. Exercising power in mala fide manner.
Principle of irrationality shares space of rule of law, reasonableness and non-arbitrariness. If the action of the
administrative authority violates any of these principles, court can quash such action as violative of Articles
14, 19 or 21 of the Constitution.
Where a statute provides, if authority has reason to believe, courts have held these words to limit the
administrative discretion to that extent the exercise of power must be objective not subjective.
Principle of irrationality shares space of rule of law, reasonableness and non-arbitrariness. If the action of the
administrative authority violates any of these principles, court can quash such action as violative of Articles
14, 19 or 21 of the Constitution.
Where a statute provides, if authority has reason to believe, courts have held these words to limit the
administrative discretion to that extent the exercise of power must be objective not subjective.