Himmat Lal K Shah v.

Commissioner of Police

While prior to the coming into force of the Constitution, the right to assemble could have
been abridged or taken away by law, after the coming into force of the Constitution, the
right cannot be abridged except by imposing reasonable restrictions. There is nothing wrong
in requiring prior permission to be obtained before holding a public meeting a public street,
for which flows from Art. 19(1)(b) is not a right to hold a meeting at any place and time. But,
the State can only make regulations in aid of the right of assembly of each citizen and can
only impose reasonable restrictions in the interest of public order in the present case, however,
r. 7 does not give any guidance to the officer authorised by the Commissioner of Police as to
the circumstances in which he can refuse permission to hold a public meeting. The officer
cannot be expected to read the marginal note to s. 33 or to look at the scheme of the Act to
spell out the limitations on his discretion. Therefore, the rule, which confers arbitrary
powers on the authorised officer must be struck down. The other rules which merely lay down
the procedure for obtaining permission cannot survive, but, it is not necessary to strike them
down, for, without r. 7, they cannot operate. Rules 14 and 15 deal both with processions and
public meetings and their validity, in so far as processions are concerned, is not affected.

Also, the right to hold public meeting in a public street is a fundamental right and r. 7, which
gives an unguided discretion dependent on the subjective whim of the authority to grant or
refuse permission to, hold such a meeting, cannot be held to be valid.

However, the power of the appropriate authority--to impose reasonable regulations, in order to
assure the safety and convenience of the people in the use of public highways has never been
regarded as inconsistent with the fundamental right of assembly. A system of licensing as
regards the time and the manner of holding public meetings on public streets will not be
regarded as an abridgement of the fundamental right of public assembly or of free speech if
definite standards are provided by the law for the guidance of the licensing authority. But 'in
r. 7, there is no mention of the reasons for which an application for a licence can be rejected.
The vesting of such unregulated discretionary power in a licensing authority has a ways been
considered is bad.
 Rama Sugar Industries Limited v. State of Andhra Pradesh

Administrative discretion-Whether Government had fettered its discretion by laying down a

policy of confining the benefit of exemption to Cooperative Sugar Factories.

…..observations in S.A. de Smith's Judicial Review of Administrative Action (2nd Edn.)

where at page 294 it is observed :

"A tribunal entrusted with a discretion must not, by the adoption of a general rule of policy,
disable itself from exercising its discretion in individual cases.

But the rule that it formulates must not be based on considerations extraneous to those
contemplated by the enabling Act; otherwise it has exercised its discretion invalidly by
taking irrelevant considerations into account. Again, a factor that may properly be taken
into account in exercising a discretion may become an unlawful fetter upon discretion if it
is elevated to the status of a general rule that results in the pursuit of consistency at the
expense of the merits of individual cases. A fortiori, the authority must not predetermine
the issue,' as by resolving to refuse all applications or all applications of a certain class or
all applications except those of a certain class and then proceeding to refuse an application
before it in pursuance of such a resolution..."

……..In R. v. Port of London Authority, already referred to, Lord Reid went on to state :

“But the circumstances in which discretions are exercised vary enormously and that
passage cannot be applied literally in every case. The general rule is that anyone who has
to exercise a statutory discretion must not 'shut (his) ears to the application (to quote from
Bankes LJ). I do not think that there is any great difference between a policy and a rule.
There may be cases where an officer or authority ought to listen to a substantial argument
reasonably presented urging a change of policy. What the authority must not do is to refuse
to listen at all. But a Ministry or large authority may have had to deal already with a
multitude of similar applications and then they will almost certainly have evolved a policy
so precise that it could well be called a rule. There can be no objection to that provided the
authority is always willing to listen to anyone with something new to say-of course I do not
mean to say that there need be an oral hearing. In the present case the Minister's officers
have carefully considered all that the appellants have had to say and I have no doubt that
they will continue to do so. The Minister might at any time change his mind and therefore
I think that the appellants are entitled to have a decision whether these cylinders are eligible
for grant.”

It is, therefore, clear that it is open to the Government to adopt a policy not to make a grant at
all or to make a grant only to a certain class and not to a certain other class, though such a
decision must be based on considerations relevant to the subject matter on hand. Such I
consideration is found in this case. Halsbury (Vol. I. 4th Edn., para 33 at page 35) puts the
matter succinctly thus "A public body endowed with a statutory discretion may legitimately
adopt general rules or principles of policy to guide itself as to the manner of exercising its own
discre- tion in individual cases, provided that such rules or principles are legally relevant to the
exercise of its powers, consistent with the purpose of the enabling legislation and not arbitrary
or capricious. Nevertheless, it must not disable itself from exercising a genuine discretion in a
particular case directly involving individual interests, hence it must be prepared to consider
making an exception to the general rule if the circumstances of the case warrant special
treatment. These propositions, evolved mainly in the context of licensing and other regulatory
powers, have been applied to other situations, for example, the award of
discretionary investment grants and the allocation of pupils to different classes of schools. The
amplitude of a discretionary power may, however, be so wide that the competent authority may
be impliedly entitled to adopt a fixed rule never to exercise its discretion in favour of a
particular class of person; and such a power may be expressly conferred by statute." We are
satisfied that in this case the State of Andhra Pradesh has properly exercised the discretion
conferred on it by the statute. The appeal and the writ petitions are dismissed-with costs, one
set.
 Indian Railway Construction Co. ... v. Ajay Kumar

One of the points that falls for determination is the scope for judicial interference in matters of
administrative decisions. Administrative action is stated to be referable to broad area of
Government activities in which the repositories of power may exercise every class of statutory
function of executive, qusai-legislative and quasi-judicial nature. It is trite law that exercise of
power, whether legislative or administrative, will be set aside if there is manifest error in the
exercise of such power or the exercise of the power is manifestly arbitrary (See State of U.P.
and Ors. v. Renusagar Power Co. and Ors., AIR [1988] SC 1737). At one time, the traditional
view in England was that the executive was not answerable where its action was attributable to
the exercise of prerogative power. Professor De Smith in his classical work "Judicial Review
of Administrative Action" 4th Edition at pages 285-287 states the legal position in his own
terse language that the relevant principles formulated by the Courts may be broadly
summarized as follows. The authority in which a discretion is vested can be compelled to
exercise that discretion, but not to exercise it in any particular manner. In general, a discretion
must be exercised only by the authority to which it is committed. That authority must genuinely
address itself to the matter before it; it must not act under the dictates of another body or disable
itself from exercising a discretion in each individual case. In the purported exercise of its
discretion, it must not do what it has been forbidden to do, nor must it do what it has not been
authorized to do. It must act in good faith, must have regard to all relevant considerations and
must not be influenced by irrelevant considerations, must not seek to promote purposes alien
to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily
or capriciously. These several principles can conveniently be grouped in two main categories:
(i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two
classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered
because irrelevant considerations have been taken into account, and where an authority hands
over its discretion to another body it acts ultra vires.

Lord Greene in Associated Provincial Picture Houses v. Wednesbury Corpn., [1948] I KB 223
at p. 229 stated as follows:

"..........It is true that discretion must be exercised reasonably. Now what does that mean?
Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often
use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is
frequently used as a general description of the things that must not be done. For instance, person
entrusted with a discretion must, so to speak, direct himself properly in law. He must call his
own attention to the matters which he is bound to consider. He must exclude from his
consideration matters which are irrelevant to what he has to consider. If he does not obey those
rules, he may truly be said, and often is said, to be acting 'unreasonably, Similarly, there may
be something so absurd that no sensible person could even dream that it lay within the powers
the authority...........In another, it is taking into consideration extraneous matters. It is
unreasonable that it might almost be described as being done in bad faith; and in fact, all these
things run into one another."

Lord Greene also observed (KB p. 230 All ER p. 683) ".....it must be proved to be unreasonable
in the sense that the court considers it to be a decision that no reasonable body can come to. It
is not what the court considers unreasonable...........The effect of the legislation is not to set up
the court as an arbiter of the correctness of one view over another." (emphasis supplied).

Therefore, to arrive at a decision on "reasonableness" the Court has to find out if the
administrator has left out relevant factors or taken into account irrelevant factors. The decision
of the administrator must have been within the four corners of the law, and not one which no
sensible person could have reasonably arrived at, having regard to the above principles, and
must have been a bonafide one. The decision could be one of many choices open to the
authority but it was for that authority to decide upon the choice and not for the Court to
substitute its view.

The principles of judicial review of administrative action were further summarized in 1985 by
Lord Diplock in CCSU case as illegality, procedural impropriety and irrationality. He said more
grounds could in future become available, including the doctrine of proportionality which was
a principle followed by certain other members of the European Economic Community. Lord
Diplock observed in that a case as follows:

"..........Judicial review has I think, developed to a stage today when, without reiterating any
analysis of the steps by which the development has come about, one can conveniently classify
under three heads the grounds on which administrative action is subject to control by judicial
review. The first ground I would call 'illegality', the second 'irrationality' and the third
'procedural impropriety'. That is not to say that further development on a case-by-case basis
may not in course of theme add further grounds. I have in mind particularly the possible
adoption in the future of the principle of 'proportionality' which is recognized in the
administrative law of several of our fellow members of the European Economic Community."

Lord Diplock explained "irrationality" as follows:

"By 'irrationality' I mean what can by now be succinctly referred to as Wednesbury

unreasonableness." It applies to a decision which is to outrageous in its definance of logic or
of accepted moral standards that no sensible person who had applied his mind to the question
to be decided could have arrived at it."

In other words, to characterize a decision of the administrator as "irrational" the Court has to
hold, on material, that it is a decision "so outrageous" as to be in total defiance of logic or moral
standards. Adoption of "proportionality" into administrative law was left for the future.

But the discretion must be exercised in a judicial and judicious manner. The reason for
exercising discretion must be cogent and convincing and must appear on the face of the record.
When it is said that something is to be done within the discretion of the authority, that
something is to be done according to the rules of reason and justice, according to law and not
humour. It is not to be arbitrary, vague and fanciful but legal and regular (see Susannah Sharp
v. Wakefleld, (1891) AC 173, 179).