223

ADMINISTRATIVE DISCRETION AND

FUNDAMENTAL RIGHTS IN INDIA
M.P. JAIN*

A phenomenon generally discernible to-day in practically

every democratic country is the vast growth in the functions, powers
and activities of the administration. Under the impact of the modern
philosophy of 'welfare state' and 'socialistic pattern of society', the
administrative organ is acquiring more and more powers of adminis-
tration, legislation and adjudication.
The purpose of this article is to study a facet of the powers of
the administration in India.
A general modern tendency in democratic countries is to leave
a large amount of discretion in the hands of the administrative
authorities. Most of the powers conferred now-a-days are exercisable
at the discretion of the authority concerned. Legislation conferring
powers on the Executive, in most cases, is very broadly worded and
does not specify clearly and definitely the conditions and the circum-
stances subject to which, and the norms with reference to which, the
Executive is to use the powers being conferred on it.
Such a development is rather disquieting because, when
absolute discretion is conferred on the Executive, judicial control
weakens. The other safeguards available to the individual are the
'good sense' of the administration itself, and the control of Parliament
over the administration. These safeguards are hardly tangible or
substantial, for 'absolute power corrupts absolutely', and in the
modern democracies, parliamentary control of the Executive is more
of a myth than a reality. With the development of the party system,
and the Cabinet's power to dissolve the Legislature, the Cabinet
controls the legislative process to a large extent. An important
problem for a student of administrative law therefore is to seek to
strengthen techniques, outside adminstrative and legislative processes,
of controlling the administration, and this thus brings us back to
judicial control.
In England due to prevalence of the doctrine of Sovereignty
of Parliament and absence of judicial review of legislation, the courts
have absolutely no means of controlling the quantum of discretion
which Parliament may confer on the Executive. As a law passed
by it is valid in all circumstances, the Parliament may, and frequently
* Reader, Faculty of Law, Delhi University

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224 ADMINISTRATIVE DISCRETION AND FUNDAMENTAL RIGHTS IN INDIA

does, confer absolute discretion on the administration without pres-

cribing any condition to regulate its exercise. The administration
may be constituted into a final judge to decide when and how to
exercise its power and take action. Parliament may clothe adminis-
trative action with finality and completely immunize it from judicial
review.
Further, the courts in England have refused to read any
procedural safeguard into the language of laws conferring discretion
on the administration to take action of an administrative nature. 1
What can, however, be controlled in England, but this too
within narrow limits, is the exercise of the discretion by the adminis-
tration 2 by applying the common law principles of torts, breach of
contracts etc. or by questioning it in a court on the ground that the
power has been exceeded, or abused, or used for an improper
purpose, or that its exercise is malafide? In matters of discretion, the
court will not substitute its own discretion for that of the authority,
for this would defeat the intention of the statute which has entrusted
the discretion to a particular authority. But the courts can hold in
an appropriate case either that the discretion has not been exercised
at all, or that a proposed exercise is not a lawful exercise of the
discretion because the authority has taken a wrong view in law of the
nature of the discretion, as for example, if it seeks to act on irrelevant
considerations4, or if the exercise has been the result of an error in
law5. The purely administrative decision is thus vulnerable to attack
on grounds ofprocedural defects or ultra vires.6 Possibly it can be attacked
for bias, or manifest bad faith7.
The very limited amount of judicial control in matters of
1. In Nakkuda Ali v. Jayarathne (1951 A.C. 66) an administrative authority
had been authorised to cancel the licence and thus take executive action on
his having 'reasonable grounds to believe* that the licence-holder was
unfit to retain it. The rule in question laid down no procedure for
securing that the licence-holder had notice of the authority's intention to
revoke his licence, or that there must be an enquiry, public or private,
before the authority took action. The Privy Council refused to read
into the language of this rule that ' he must have reasonable grounds
to believe * anything as affording any of the procedural safeguards against
administrative action.
For a note on this case see 24 Australian L. J . , p. 325 and also Liversidge v
Anderson, 1942 A.C. 206, where a similar formula was involved,
2. G.E. Treves, Administrative Discretion and Judicial Control, 10 Mod. L.R.
276.
3. Westminster Corporation v L. & N.W. Rly, 1905 A.C. 426
4. Wade & Phillips, Constitutional Law (IX Ed) 289; R. v Vestry of St. Pancaras
24 Q.B.D. 371 ; R.r. Brighton Corp. ex p. Thomas Tilling Ltd., 85 L.J.K.B.
1552.
5. R. v. Board of Education, (1910) 2 K.B. 165
6. Keeton, The Britioh Commonwealth Series, Vol. I., p. 84
1. S.A. de Smith, The Abuse of Statutory Powers,, 1956 Public Law, 233.

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 M.P. JAIN 225

administrative discretion available in England has been commented

upon somewhat adversely by several scholars. It has been observed
that it cannot be right or just that Ministers should have unfettered
discretion and that, as administrative action now-a-days touches and
directly controls, the every day life of every person, it is more important
than ever before that there should be adequate safeguards8. At
another place, it has been observed that under contemporary
conditions, administrative officers and agencies have to be vested
with tremendous powers and the principal problem is one of control.
Another scholar has observed: "Wide discretion there must be in
all administrative activity, but it should be discretion defined in
terms which can be measured by legal standards lest cases of manifest
injustice go unheeded and unpunished." 9
Taking all these circumstances into consideration, we may
say that in India the position in this respect is somewhat more
fortunate. The Indian Constitution guarantees to the people certain
Fundamental Rights10 which provide an additional dimension of judicial
control over administrative discretion. In addition to what the
British courts can do, the Indian courts can also make use of certain
Fundamental Rights to control the bestowal of discretion on the
administration, and a statute which seeks to confer more than
permissible discretion on the administration will be unconstitutional.
No law can clothe administrative discretion with a complete finality,
for the court can always examine the ambit, and even its exercise,
from the point of view of its conformity with the Fundamental Rights.
Further, it is possible for the courts to make use of certain Fundamental
Rights to insist on certain procedural safeguards before the discretion
conferred on the administration could be held to be constitutional.11
The Fundamental Rights in India, therefore, afford a basis to
the Judiciary to control administrative discretion to some extent.
Following is a review of the trends regarding the extent to which,
and the manner in which the Judiciary has sought to apply Funda-
mental Rights to control administrative discretion. The important
articles for this purpose are: 31(2) ; 22(4) and (5) ; 19 and 14.
Problems have arisen mainly with respect to the validity of the law
conferring discretion on the administration. For this purpose, both
substantive as well as procedural parts of the law are taken into
8. Richard C. Fitzgerald, Safeguards in the Exercise of Functions by Administra-
tive Bodies, 28 Can. B.R. 538 at p. 551.
9. Wade, Courts And Administrative Process, 63 L.Q..R. 173 (1949).
10. Articles 13 to 35 i a Part III of the Constitution.
H. see infra under." Art. 19 (1) (g), Art. 14 etc.

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226 ADMmSTBATlVSi DISCRETION ANDtfTODASOENTALBIGHTS IN INDIA

consideration. The substantive part is examined to see whether the

'discretion' conferred is within permissible limits ; the procedural
part is examined to see whether there are necessary safeguards subject
to which the discretion is to be exercised.3*
Article 31 (2)
This Article provides for governmental acquisition of private
property under a law subject to two conditions (1) that the law pro-
vides for compensation the quantum of which is non-justiciable; and
(2) that property is acquired for public purpose.
About compensation, the Constitution requires that the Legis-
lature should either fix the amount of compensation or specify the basis
for determining it. It has therefore been held judicially that the
Legislature cannot leave the determination of compensation entirely
to the administrative authority 13 . Thus in Rajasthan v Nathmalu the
law in question vested in the administrative authority power to acquire
stocks of foodgrains at any price. The Supreme Court held the pro*
vision void because, inter alia, it failed to fix the amount of compensa-
tion or specify the principles on which it could be determined ; the
matter was left entirely to the discretion of the authority to fix any
compensation it liked and this offended against Art. 31 (2).
Further, Article 31(2) authorises acquisition of property only
for a public purpose, and, therefore, in each case the court is entitled
to scrutinise whether acquisition of property was for a public purpose
or riot.16 The purpose for which property may be acquired need not
be mentioned specifically either in the statute 16 or in the requisitioning
order made under it. 17 The important point to note, however, is
that the Legislature cannot constitute the administration as the final
judge of whether a particular purpose for which the property is
12. Dr. Khare v. State of Delhi, A.I.R. 1950 S.C. 211 ; (1950) S.C.R. 519.
13. Rajasthan v Nathmal, A.I.R. 1954 S.C. 307 ; (1954) S.C.R. 982.
14. ibid.
15. State of Bihar v Kameshwar, A.I.R. 1952 S.C. 252 ; (1952) S.C.R. 889.
16. The statute authorising the Executive to requisition property need not
state explicitly the precise purpose for which property may be acquired
if from its whole tenor and intendment it is clear that the property is to be
acquired for purposes of State or for purposes of the public so as to benefit
the community at large. State of Bihar v. Kameshwar, A.I.R. 1952 S.C. at
274; Also see State of Bombay v. Bhanji. (1954) S.C.A. 1286; (1955)
S.C.R. 777.
17; It is not necessary, though desirable, for the requisitioning order to state
the purpose for which the property is being acquired—State of Bihar v.
Kameshwati A.I.R. 1952 S.C. 252*. When the order does not mention the
purpose, its proofwill have to be given by the administration in other
ways, and the facts will have to be established to the satisfaction of the
court^tate of Bombay v Bhanji, A.I.R. 1955 S,€. 41 ; (1955) S.C.R, 777.

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 U.T. JAIK 227

being acquired is a 'public purpose' or not. That is a justiciable

matter and the final say in this respect rests with the courts.18
In the Bella Bannerjee19 case, the provision that a Government's decla-
ration under the Act 'shall be conclusive evidence that the land in
respect of which the declaration is made is needed for a 'public purpose*
was held to be void20. The decision of the Executive as to the exis-
tence of 'public purpose* cannot be made binding and conclusive
on a court.*1
The question of adequacy of compensation being out of their
purview, the courts can control the administration in matters of
acquiring property only by examining rather carefully the 'purpose*
for which the property may be acquired. Hitherto, however, the
courts have sought to put a very broad interpretation, on the term
'public purpose' ; the judicial test of it is that whatever furthers the
general interests of the community as opposed to the particular
interests of the individual is a 'public purpose5 .t% The test is very
vague and indefinite and much depends on how the courts apply it in
specific factual situations. In the Nanji case,23 requisition of a building
for residence of an employee of the State Road Transport Corporation,
a public utility service, has been held to be a 'public purpose*.
A very broad interpretation of the term 'public purpose* will
place a large amount of discretion in the hands of the Executive to
acquire property. The general tendency of the Legislature is to leave

18. " Primafacie, the Government is the best judge as to whether * public
purpose * is served by issuing a requisition order, but it is not the sole
judge. The courts have the jurisdiction and it is their duty to determine
the matter whenever a question is raised whether a requisition order is or
is not for a * public purpose \ State of Bombay v. Nanji, A.I.R. 1956 S.C.
294, 297 ; (1956) S.C.R. 18, 25.
19. West Bengal Settlement Kanungo Co-op. Credit Society Ltd. v Bella Bannerjee,
A.I.R. 1952 Cal. 554 ; on appeal, A.I.R. 1954 S.C. 170 ; (1954) S.C.R.
558.
20. The Act involved in the case was the West Bengal Land Development and
Planning Act, 1948. In the words of the Supreme Cdurt ' as art. 31
(2) made the existence of a public purpose a necessary condition of
acquisition, the existence of such a purpose as a fact must be established
objectively* and the provision 'relating to the conclusiveness of the
declaration of the Government as to the nature of the purpose of the
acquisition must be held unconstitutional *. Ibid.
21. The one notable exception to this rule is furnished by the Land Acquisi-
tion Act, 1894. Sec. 6(3) provides that the declaration by a State Govern-
ment of the existence of the public purpose for land acquisition ' shall be
conclusive evidence that the land is needed for a public purpose'. The
provision is saved by cl. 5(a) of Art. 31. See Baijnath v U.P. Govt., A.I.R.
1953 All. 182
22. Das J. in State of Bihar v. Kameshwar, A.I.R. 1952 S.C. 252 ; (1952) S.C.R.
889
23. A.I.R. 1956 S.C. 2 9 4 ; (1956) S.C.R. 18

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228 ADMINISTRATIVE DISCRETION AND FUNDAMENTAL RIGHTS IN INDIA

the powers of acquisition undefined by using such vague expressions

as 'purposes of the state' or 'purposes of the Union'. 24 Such expres-
sions leave a large amount of discretion to requisition private property
for any purpose deemed necessary by the administrative authority
concerned. It is therefore necessary for the courts to scrutinise care-
fully the purpose for which property is being acquired in a particular
case with a view to keeping within proper limits the exercise of
discretion vested in the Executive by the Legislature.
ARTICLE 22
This Article lays down the safeguards subject to which preventive
detention can be resorted to in India. It permits the bestowal of
a large amount of discretion on the administration to order preventive
detention, for it is not established that the issuing of an order of
preventive detention can be left entirely to the subjective satisfaction
of the Executive without the Legislature setting up any objective
standard or test for this purpose. 25 The courts cannot scrutinise
the sufficiency of the grounds on which executive satisfaction is
based, 26 nor whether the grounds are correct or false.27 What the
courts can inquire is whether the grounds of detention communicated
to the detenu are relevant to the objects for which a person can be
detained under the relevant law and the Constitution ;28 or whether
the grounds are vague or indefinite so as to make it difficult for the
detenu to make an adequate representation29 ; or whether particulars
furnished to him are sufficient to enable him to make an adequate
representation 30 ; or whether more than reasonable time has been

24. See, for example, the Requisitioning & Acquisition of Immovable Proper-
ty Act, 1952, which authorises the central Government to requisition im-
movable property for the * purposes of the Union '.
25. A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27 ; (1950) S.C.R. 88.
26. ibid.; Bombay v. Vaidya, A.I.R. 1951 S.C. 157 ; (1951) S.C.R. 167.
27. Ujagar Singh v. Punjab, A.I.R. 1952 S.C. 350 ; Shibban Lai v U.P., A.I.R.
1954 S.C. 179.
28. Bombay v. Vaidya, Supra. If however one ground is irrelevant the detention
order will be vitiated. Shibban Lai v. U.P., ibid.
29. Ramkrishna v. State of Delhi, 1953 S.C.J. 444 ; (1953) S.C.R. 708. In this
case the Supreme Court has said that if a ground can be interpreted only
by a lawyer and not by a layman, it will be deemed to be a vague ground
and that one vague ground communicated to the detenu will vitiate the
order of detention.
30. The detenu is entitled to have particulars * as full and adequate as the
circumstances permit', so as to enable him to make a representation
against his detention. Sufficiency of the particulars furnished is a justi-
ciable matter, the test being whether the detenu can make an adequate
representation. Ramkrishna v. Delhi, ibid.
The efficiency of this Article is very much whittled down by Art. 22 (6)
according to which the detaining authority is authorised to refuse to

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 M.P. J A I S 229

taken in furnishing the grounds to the detenu. 31 The courts may

quash a detention order if it is malafide32, or if the detaining
authority failed to observe any provision of the relevant law or the
Constitution.
It will therefore be noted that the control of the Judiciary in
matters of preventive detention is superficial. It is confined mostly
to procedural matters and to making the detaining authority take
care in serving the grounds on the detenu. The courts can scrutinise
the grounds from the point of view of their 'relevancy' or 'adequacy
to make a representation5 and this may indirectly require the adminis-
tration to remain within proper limits while ordering preventive
detention. Subject to this, the Constitutional provision in question
makes it possible for the Legislature to confer a very broad discretion
on the administration in this area.

Art. 19(1) (a) & Art. 19(2): Freedom of Speech

In Virendra v. The Sta'e of Punjab™ the Supreme Court
has recently made a pronouncement of great moment on the question
of permissible limits of administrative discretion to restrict the
Fundamental Right of speech guaranteed by Art. 19(1) (a) read with
Art. 19(2). The Punjab Special Powers (Press) Act, 1956, was in
question. It authorised the Provincial Government or its delegate,
*if satisfied that such action is necessary for the purpose of preventing
or combating any activity prejudicial to the maintenance of communal
harmony affecting or likely to affect public order', to prohibit, inter
alia—
(i) the printing in a document of any matter relating to a
particular subject for a maximum period of two months ; and
(ii) the bringing into Punjab of a newspaper, periodical etc.
The Act conferred a right on the aggrieved party to make a represen-
tation to the Government for its consideration in case (i) but no such
right was granted in case (ii). The objection to these provisions was
that they gave wide powers to the Government to curtail the freedom
of speech on its 'subjective satisfaction', and that the discretion
conferred on the Government was arbitrary and uncontrolled and so
unreasonable. The Court, however, held that there was nothing
wrong in leaving the imposing of restrictions to the Executive in its

disclose to the detenu as facts which it regards as against public interest to

disclose.
31. Ujagar Singh v. State of Punjab, A.I.R, 1952 S.C. 350 ; (1952) S.C.R. 756.
32. Ibid.
33. A.I.R. 1957 S.C. 896.

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230 At)MlKlSTttATivB DISCfcEttON Atft>tftfttDAMEtfTALRIGHTS ttt Itft>tA

subjective satisfaction for at the time of the passage of the impugned

Act, there was a great communal tension in Punjab and the State
Government, alone, charged as it was with the duty to preserve law
and order in the State, possessed all the material facts and was thus
the best authority to take necessary action for maintaining law and
order. The Court was unsuited to gauge the seriousness of the
situation. The power conferred on the Government was not
arbitrary as the principle on which it could be exercised had been
laid down in the impugned provisions. The Government could
exercise its powers only if it was satisfied that it was necessary for the
purpose mentioned in the provisions in question. In case (i), the
power to prohibit printing of material with respect to a particular
topic was not unreasonable, because it was conditioned by two positive
requirements, namely, that the order could be made for a maximum
period of two months only ; and, that the aggrieved party had a
right to make a representation. With respect to the power to ban
the entry of a newspaper in case (ii), there was no time limit for which
such an order could remain operative, nor had the aggrieved party
a right to make a representation, and the absence of these safeguards
made the provision unreasonable.
This decision thus appears to establish that under Articles
19(1) (a) and 19(2), the Executive may be given a discretion to curtail
the freedom of speech subject to three limitations : firstly, the principle
on which this power can be exercised should be laid down by the
Legislature ; secondly, the power should be limited in point of time,
that is, the power should be to take action for a limited and short
duration ; and, thirdly, the person aggrieved should have a right of
making a representation for the consideration of the Executive.
Besides, some Cases have arisen in the High Courts regarding
the validity of the Dramatic Performances Act, 1876, which authorises
the District Magistrate to prohibit public dramatic performances of
a scandalous or defamatory nature, corrupting persons or arousing or
likely to excite feelings of disaffection towards the Government.
The Allahabad High Court in the State v. Baboolal34 has found that
under the Act the District Magistrate has been made the final
authority to determine the question whether a particular play is
offensive under the Act. There is no provision for appointing any
higher authority (judicial or otherwise) to review or reconsider the
order passed by the District Magistrate, or for affording an opportunity

34. A.I R. 1956 All. 571; see also, Harnam Singh v. Punjab, A.I.R. 1958 Punjab
243.

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 M.P. urn 231
to the aggrieved party to make a representation against the prohibitory
order, nor is the Executive under an obligation to record reasons for
taking action. The Act has been held to be bad because its
procedural part imposes such restrictions on the Fundamental Right
as are not covered by the saving clause in Art. 19(2). In the
opinion of the Court, absolute discretion cannot be left in such matters
to an executive officer to refuse permission to stage a play.

Articles 19(1) (c) & 19(4): Freedom to form Association

In State of Madras v. V.G. Row,35 the Supreme Court has refused
to sanction a provision of law authorising an administrative authority
to declare an association unlawful on its subjective satisfaction and with-
out permitting the grounds for imposing the restriction, both in their
factual and legal aspects, to be duly tested in a judicial inquiry. 35
In this case, the law in question made a provision putting the Govern-
ment under an obligation to place the materials on which it acted
before an Advisory Board and to be bound by its decision. But the
Supreme Court held that this 'summary' and largely 'one sided' review
by an Advisory Board could not be a substitute for a judicial inquiry.
The Court held that in such a matter as freedom of association, except
in very exceptional circumstances, and then too within very narrow
limits, the formula of subjective satisfaction with an 'Advisory Board

35. A.I.R. 1952 S.C. 196; (1952) S.C.R. 597.

35 A. It may be noted that in Dr. Kkare v. Delhi, (1950) S.C.R. 519, infra,
which involved clauses (d) and (e) of Art. 19(1) (right of movement and
residence), the holding of the Supreme Court was to the contrary. In
that case the Court held that the Legislature eould confer power on an
executive officer to make an order externing a person from a particular
area on his subjective satisfaction without prescribing judicial scrutiny
into his action. However, the Court distinguished the Khare case from
the Row case which, as already stated, involved cl. (c) of Art. 19, on the
following grounds: (I) Externment of individuals, like preventive
detention, was largely precautionary and based on suspicion. It involved
an element of emergency requiring prompt steps to be taken to prevent
apprehended danger to public tranquility. On the other hand, the
grounds in the Row case were factual and not anticipatory or based on
suspicion. (2) In the Khare case, the Act was a temporary enactment.
(3) No doubt the Advisory Board procedure in the Madras case provided
a better safeguard than the one in the Delhi case, but the Court found a
more serious defect in the Madras case, namely, absence of personal service
on the Association. (4) Lastly, the Court in the Row case observed:
" a decision dealing with the validity of restrictions imposed on
one of the rights conferred by article 19(1) cannot have much value as a
precedent for adjudging the validity of the restrictions imposed on another
right, even when the constitutional criterion is the same, namely,
reasonableness, as the conclusion must- depend on the cumulative
effect of the varying facts and circumstances of each case."
(1952) S.C.R, 611.

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232 ADMINISTRATIVE DISCRETION AND FUNDAMENTAL RIGHTS IN INDIA

thrown in to review the materials* was not going to receive judicial

sanction.
The right to form associations is the very life blood of democracy.
Without such a right, political parties might become impossible of
formation in the country. It is therefore fortunate that the Supreme
Court has not permitted the Legislature to leave the matter of declaring
an association unlawful merely to the 'subjective satisfaction* of the
Executive. There must be an objective determination by a court
of the facts on which the restriction is sought to be imposed by the
Executive.
Articles 19(1) (e) & 19(5): Freedom to Reside and Settle
In the area of the freedom 'to reside and settle in any part of
the territory of India', the Supreme Court in Ebrahim Vazir v. Bombay36
rejected a statutory provision seeking to authorise the Government to
impose the penalty of removal of a citizen from India on 'reasonable
suspicion entertained 5 by it that the person concerned had committed
an offence against the permit law. Sec. 3 of the Influx from
Pakistan (Control) Act, 1949, prohibited entry of any person into
India from Pakistan without a valid permit. Sec. 7 of the Act em-
powered the central Government to direct removal from India of any
person committing an offence under the Act. The Court took the
view that this provision applied to citizens and non-citizens alike
and held it void as ^ contravening Art. 19(1) (e) in so far as
it referred to an Indian citizen. For under the section the
question whether an offence had been committed or not was
left entirely to the subjective determination of the Government;
the inference of a reasonable suspicion rested upon the arbitrary
and unrestrained discretion of the Government and before a
citizen was condemned all that the Government had to do was to issue
an order that a reasonable suspicion existed in their mind that an offence
had been committed. The Court further pointed out that the "section
does not provide for the issue of a notice to the person concerned
to show cause against the order, nor is he afforded any opportunity
to clear his conduct of the suspicion entertained against him. This
is nothing short of a travesty of the right of citizenship."
Articles 19(1) (d), 19(1) (e) & 19(5): The Right of Movement
and Residence
In Dr. Khare v. Delhi,37 the Supreme Court has held that the
Legislature can confer on an executive officer the authority to make an
^6. A.I.R. 1954: S C . 229; (1954) S.C.R. 933. " ~~
37. A.I.R. 1950 S.C. 211.; (1950) S.C.R. 519.

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 M.P. JAIN 233

order externing a person from a particular area on his subjective

satisfaction without prescribing a judicial scrutiny into his satisfaction.
A law providing for externment is not bad merely because it leaves the
desirability of making an order of externment to the subjective satis-
faction of a particular officer, for, as Mukherjea J. pointed out, an
element of emergency requires taking of prompt steps to prevent
apprehended danger to public tranquility and so the authority has
to be vested in executive officers to take appropriate action on their
own responsibility.38 The law in the instant case39 was of a tempo-
rary nature only ; its life was limited to two years so that no extern-
ment order could remain in force for longer than that period; it gave
a right to the externee to receive the grounds of his externment from
the Executive and to make a representation if the externment was for
more than three months ; an Advisory Board was also instituted to
consider the externee's representation. All these features of the law
in question were cited by the Court to hold it valid.
The tenor of the opinions in the Khare case leaves behind the
impression that the law authorising externment in the 'subjective
satisfaction' of the Executive need contain no safeguard of a procedural
nature if the externment order is to be for a short duration, say, three
months ; if, however, it is to be of a long duration, then some safe-
guards are necessary, such as service of the grounds of externment on
the externee, giving him an opportunity to make representation and
consideration of this material by an Advisory Board.
In Gurbachan v. Bombay*® the Supreme Court held as valid a
provision41 bestowing power on the Commissioner of Police to serve
externment order for up to two years, if, in his opinion, the movements
or acts of the person were causing danger or harm to person or property.
As regards the procedure, the law in question contained a provision
that before an order of externment was made against a person, the
Commissioner should inform such person in writing, of the general
nature of the material allegation against him and give him a reasonable
opportunity of explaining these allegations. He could appear through
an advocate, file a written statement and examine witnesses for the
purpose of clearing his character. The procedure was held to be

38. A.I.R. 1950 S.C. 217.

39. The law involved in the case was the East Punjab Public Safety Act. Sec.
4(b) of the Act authorised the Executive to extern a person ' if satisfied '
that it was necessary to do so to prevent him from acting in a manner pre-
judicial to the public safety or maintenance of public order.
40. A.I.R. 1952 S.C. 221 ; (1952) S.C.R. 737.
41. S.27 (1) of the City of Bombay Police Act, 1902

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234 ADMINISTRATIVE DISCRETION AND FUNDAMENTAL KIGHTS IN INDIA

reasonable even though the person suspected had no right to cross-

examine witnesses who had deposed against him and on whose evidence
the proceedings were started. This ruling was reiterated in Bhagubhai
v. District Magistrate** where the operative words of the legal provision
(Bombay Police Act, 22 of 1951) were exactly the same as those in the
Gurbachan case. In BhagubhaVs case, however, Jagannathadas J.
expressed the view that the vesting of a power to extern a person out
of his home for so long a period (two years) without the obligation to
review the order at some stated periodical intervals, say, once in three
months or six months, was prima facie unreasonable, because, though
on the face externment might not appear to be as serious an inter-
ference with the personal liberty of an individual as detention, yet, in
actual practice it might produce more serious injury to the person
concerned. Nonetheless he felt bound to follow the previous deci-
sions of the Court. Again, in Hari v. Deputy Comm. of Police,*3 the
Supreme Court upheld the validity of a provision authorising executive
authorities to extern a person on their subjective satisfaction from any
particular area. In this case an argument was taken that there was
no advisory board to scrutinise the material on which the authorities
had taken action against a person and that this lacuna vitiated the pro-
vision in question. The Supreme Court rejected the argument with
the remark that there was no universal rule that the absence of an
advisory board would necessarily make such legislation unconstitu-
tional. The externee in this case had a similar right of hearing as in
Gurbachan case. It was argued that the law was unreasonable because
the case was initiated by the police and it was the police who were to
judge the case. The Court rejected this argument because whereas
the case could be initiated by an Inspector of Police, the order of
externment could be made only by the Commissioner of Police. Other
safeguards available in the law were: an appeal to the State Govern-
ment against the order and a reference to the courts on some points.
In the area of externment, the decisions mentioned above make
it clear that a law authorising the Executive to extern a person in its
subjective satisfaction should contain some procedural safeguards.
They do not however give a clear guidance as to what minimum pro-
cedural norms there should be in the law subject to which the adminis-
trative discretion is to be exercised. In the Khare case, there was an
Advisory Board, although it was nominal, for its opinion was not
binding on the Government, to which cases of externment for more

42. A.I.R. 1956 S.C. 585; (1956) S.C.R. 533.

43. A.I.R. 1956 S.C. 559 ; (1956) S.C.R. 5*)6.

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 M.P* JAIK 235

than three months had to be referred. In the Bombay cases there

was no such body though an externment order could be made up to
two years, and in one case, a demand for such a board was specifi-
cally rejected by the Supreme Court. The only safeguard present
in the Bombay cases was the right of hearing given to the externee
but it was a weak safeguard in so far as the officer initiating the pro-
cess against him and the officer holding the hearing, though theoreti-
cally separate, yet, from a practical view were not so, as they both
belonged to the same organisation, the Police, and there was no
independent appraisal of the materials against the externee. In the
Khare case, however, there was no oral hearing of the externee, but only
the making of a representation, by him. Taking all these cases
cumulatively, it appears that in a case of externment of a person from
a local area by the Executive, a procedural safeguard available to the
person is that he has a right to know the grounds of externment and
either to make a representation or to be afforded a hearing even if it
be before an executive officer. On the whole, therefore, it will not be
incorrect to say that the Supreme Court has permitted the Legislature
to concede a very large amount of discretion to the Executive to extern
a person from a local area, and thus tamper with the individual liberty
of movement and residence in India.

It is interesting to note the dichotomy in judicial attitudes

regarding the permissible limits of discretion altowable to an adminis-
trative authority under two different Fundamental Rights-those
relating to 'association' and 'movement.' In case of the right of
'association,' existence of an Advisory Board is not sufficient and there
must be a reference to a judicial tribunal to establish, legally and
factually, the facts on which administrative action is taken to declare
an association unlawful. Where the right of 'movement' is con-
cerned, the courts do not even regard the presence of an advisory
board as necessary. It is sufficient, it appears, if the externee is
heard by an executive officer. It is interesting to note the different
ways in which the courts have treated the analogy of 'preventive
detention' in the two cases. In case of 'association,' the courts have
held that the fact that there is an Advisory Board in cases of preventive
detention, does not mean that an Advisory Board will be sufficient
also in cases of restraint of the right of 'association' by the Executive.
On the other hand, in case of right of 'movement,' the Supreme
Court has held that the fact that there is an Advisory Board in preven-
tive detention does not mean that there should also be such a Board
where a restraint is imposed by the Executive on this right. To

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236 ADMINISTRATIVE t>ISCRETI0N AND FUNDAMENTAL RIGHTS IN INDIA

some extent, it may be that the right of 'association' needs a much

greater protection than the right of'movement,' for whereas the former
is at the base of a democratic society the latter affects only an
individual. But even then, the right of 'movement* needs a better
protection than it receives at present and the forceful dissent by
Mukherjea J. in the Khare case is an index of the unsatisfactory features
present in the laws in this area.
Articles 19(1) (f) & 19(5): Right of Property
Judicial decisions under these constitutional provisions have
very much restricted the scope of the discretion which the Legislature
can confer on the Executive to interfere with the rights of property of
a citizen. In Raghubir v. Court of Wards** the Supreme Court held
invalid a law which sought to deprive a person of possession of
his property for an indefinite period merely on the subjective satis-
faction or determination of an executive officer . Such a law made
the enjoyment of property depend on the mere pleasure and discretion
of the Executive, the citizen affected having no recourse to a civil
court against the executive action. In Jagannath v. State of Orissa*'*
a State law authorising the Executive to frame a scheme of manage-
ment and administration of endowed property without the interven-
tion of a judicial tribunal at any stage was, inter alia, held to be bad
as constituting an unreasonable restriction on the right of property.
On the other hand, in Commissioner, Hindu Religious Endowments v.
Lakshmindra** a parallel case from Madras, where the scheme was
framed by an executive officer but where the aggrieved party had a
right to bring a suit in the ordinary civil court with a further right of
appeal to the High Court, the provision was held valid. In the same
case, however, a provision which authorised the Executive to take over
the administration of the property in its discretion without any pro-
vision enabling the aggrieved party to take recourse to the courts
against the executive action was held to be unconstitutional.47 The
effect of these cases, speaking generally, appears to be that the Exe-
cutive cannot be authorised to interfere with rights of property of
44. A.I.R. 1953 S.C. 3 7 2 ; (1953) S.C.R. 1049.
S. 112 of the Ajmer Tenancy and Land Records Act. 1950, provided that
if a landlord habitually infringed the rights of a tenant under the Act he
would be deemed to be a landlord disqualified to manage his own property
and the property would be taken under Court of Wards. The question
whether the landlord habitually infringed the rights of tenants was left to
the Court of Wards for decision.
45. A.I.R. 1954 S.C. 4 0 0 ; (1954) S.C.R. 1046.
46. A.I.R. 1954 S.C. 282 ; (1954) S.C.R. 1005.
47. A.I.R. 1954 S.C. 294.

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 M.P. JAIN 237

a citizen in its own discretion without conferring on the party aggriev-

ed a right to take recourse to the courts at some stage and in some
form.
A series of cases exist involving the Government Premises
(Eviction) Act, 1950, which has been recently re-enacted as the Public
Premises (Eviction of Unauthorised Occupants) Act, 1958. The former
statute was of a drastic character and so faced stiff judicial opposition.
Under it, an executive officer could be empowered to evict a person
in occupation of any government premises if the authority was satis-
fied that a person—(i) authorised to occupy the premises had sublet
the premises without government permission, or had otherwise con-
travened any term of occupation; or (ii) was in unauthorised
occupation of the premises. The authority was also empowered to
assess damages for unauthorised occupation of any government pre-
mises. The Act barred the jurisdiction of the courts and the only
right allowed to the person aggrieved by the authority's order was to
prefer an appeal to the central Government. These provisions were
declared invalid by several High Courts. 48 In Satish Chand v. Delhi
Improvement Trust,*9 the Punjab High Court pointed out that 'it is
the satisfaction' of the authority 'which forms the sole basis both of
orders of eviction and of fixing and levying damages*; that the powers
given to the authority under the Act'are so wide and capable of abuse,
and that the protections provided by the Act to the rights of any person
affected by orders passed by the authority' are so inadequate, 'that
the provisions of the Act as a whole amount to interference with the Fun-
damental Rights of a citizen'. The Court held the protection afforded
by way of appeal to the central Government as 'almost illusory' 50 ;
at no stage had the party aggrieved been conceded a right of hearing;
the Legislature had expressly taken away the powers of the civil courts
and, further, the Act was capable of being misused to cover matters of
a wholly different nature. 51 Because of these factors, the Act was
declared invalid. As a result, the Parliament had to frame new legis-
48. Jagu v. Shaukat, 58 C.W.N. 1066; Brig. Commr., Meerut v. Ganga Pd.,
A.LR. 1956 ALL. 507 ; Satisk Chand v. Delhi Improvement Trust, A.I.R.
1958 Punj. 1.
49. ibid.
50. The Court gave these reasons for this view; " The section gives no right
to the person affected to be heard by the appellate authority all
that the appellate authority has to do is to call for a report from the
competent authority, who may naturally be expected to state the case as he
himself sees it, and to justify his order, and who is not likely to mention any
fact which the person affected by the order may have to set up in defence,
and then the appellate authority, if it thinks necessary, may hold some fur-
ther enquiry, but it may not do so." ibid, at p.4.
51 The Punjab High Court cited examples of misuse of the Act/Referring to

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238 ADMINISTRATIVE DISCRETION AND FUNDAMENTAL RIGHTS IN INDIA

lation. From these cases, it appears that the courts have endeavour-
ed to extend effective protection to private property from executive
interference, and there are thus definite limits beyond which the Legis-
lature cannot confer discretion on the Executive in the important
area of private property.

Art* 19(l)(g) & 19(6): Freedom to carry on Trade & Commerce

According to the Supreme Court, restriction which can be
imposed on a person in the enjoyment of his right to carry on trade
and commerce should not be arbitrary or of an excessive character
beyond what is required in the interests of the public; there should
be a reasonable relation between the provisions of law in question
and the purpose in view and that the law should strike a proper balance
between freedom guaranteed to the individual and the social control
envisaged in Article 19(6).52 This is the controlling principle
which is applied to determine whether administrative discretion left
by the Legislature in the hands of an authority to impose restrictions
on the freedom of trade is justified or not in a particular case. For
this purpose, trades are characterised as 'normal 5 or 'exceptional.5
For normal trades, the principle laid down judicially is that the power
conferred on the Executive should not be arbitrary, 'unregulated by
any rule or principle5, and that 'it should not be left entirely to the
discretion of any authority to do anything it likes without any check
or control by any higher authority.*53 To ascertain whether the
discretion is regulated or unregulated, the court looks at both the
substantive and procedural parts of a particular Act. Generally
speaking, discretion is not unregulated or arbitrary if the 'circum-
stances5 in or the 'grounds' on which it can be exercised are stated,
or if the law lays down the policy to achieve which the discretion is to
be exercised54, or if there are enough procedural safeguards in the
law to provide security against the misuse of the discretion.55 Thus in

the Calcutta case (f.n. 44), it was pointed out that there the Act was
invoked to get rid of certain hawkers who had occupied the pavements of
a government building even though they were paying rent for a long time.
In the Satish Chand case the Act was invoked to terminate an agreement
conferring leasehold rights for 90 years granted by the Delhi Improve-
ment Trust for the purpose of building shops.
52. Chantaman Rao v. Madhya Pradesh, A.I.R. 1951 S.C. 118; 1950 S.C.R.
759.
53. Dwarka Prasad v. State of Uttar Pradesh, A.I.R. 1954 S.C. 2 2 4 ; (1954)
S.C.R. 803.
54. Rajasthan v. Nathmal, A.I.R. 1954 S.C. 307 ; (1954) S.C,R. 982; also,
Virendra v. Punjab, A.I.R. 1957 S.C. 896.
55. Bijay Cotton Mills v. Ajmer, A.I.R. 1955 S.C. 99 ; (1955) S.C.R. 752.

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 M.P. JAIN 239

Rajasthan v* Nathmal?*, a rule authorising administrative authority

to freeze 'any stocks of foodgrains held by any person' was held
valid. T h e Court refused to accept the argument that 'power to
freeze stocks of foodgrains is arbitrary or based on no reasonable
basis.' T h o u g h the rule in question did not state the circumstances
in or the grounds on which the stocks could be frozen, yet the p a r e n t
Act (the Essential Supplies Act, Sec. 3) h a d laid down the policy, a n d
on the basis of this fact, the Supreme Court observed t h a t the
'freezing of stocks of foodgrains is reasonably related to the object
which the Act was intended to achieve, namely, to secure the equit-
able distribution a n d availability at fair prices and to regulate trans-
port, distribution, disposal a n d acquisition of a n essential commodity
such as foodgrains.' I n the same case, however, the Supreme C o u r t
held that an absolute discretion conferred o n a n administrative autho-
rity to requisition the foodgrains a t any price or at a n arbitrary price,
a n d sell it a t any price, is unreasonable a n d such a power cannot b e
conferred even in case of a n essential commodity. 5 7 I n Dwarka
Prasad v. The State of Uttar Pradesh?9 the Supreme Court consi-
dered a rule authorising the administrative authority to fix the selling
price of coal in accordance with a formula consisting of eight items.
I n two of these items, discretion was left with the officers, viz. (i)
incidental charges which were to be determined according to local
conditions, a n d (ii) shortage allowance about which a m a x i m u m
was fixed and subject to it the authority could fix the allowance in
particular cases. T h e Court held the formula valid. T h e local
charges might vary from place to place a n d some discretion should
therefore be left with the authority a n d since the discretion was
to be exercised with reference to local conditions, it was not
unlimited. Regarding the shortage allowance, as the m a x i m u m
was fixed, the powrer left was not unfair or discriminatory. The
Supreme Court further stated that it could not substitute its own
discretion for that of the administrative authority; the Court could
interfere if there was unfair discrimination in the exercise of
discretion.
In Bijay Cotton Mills v. Ajrner^, the Supreme Court has held
the M i n i m u m Wages Act valid. T h e Act confers broad discretion
56. Supra.
57. The case has been cited earlier also under Art. 31(2) i n / , n. 13. The
case has two aspects pertaining to 'right to property' as well as 'freedom
of trade'.
58. A.I.R. 1954 S.C. 2 2 4 ; (1954) S.C.R. 803. T h e rule involved here
was CI. 8(1) of the U.P. Coal Control Order, 1953.
59. A.I.R. 1955 S.C. 33 : (1955) S.C.R. 752.

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240 ADMINISTRATIVE DISCRETION AND FUNDAMENTAL RIGHTS IN INDIA

on the Executive to fix m i n i m u m wages in any trade or industry.

T h e Act contains no policy on which minimum wages have to be fixed
but this has been held to be reasonable because 'securing of living
wages to labourers which ensure not only bare physical subsistence
b u t also the maintenance of health and decency, is conducive to the
general interest of the public'. 'This is one of the Directive Principles
of State Policy embodied in Art. 43 of our Constitution' and, further,
the M i n i m u m Wages Act was passed to give effect to the resolutions
embodied in the International L a b o u r Code as a result of the
M i n i m u m Wages Fixing Machinery Convention held in Geneva in
1928. Also, the Act contains certain procedural safeguards, such as,
the Government's obligation to consider the advice of advisory com-
mittees or boards consisting of the representatives of the employers
a n d employees with some independent persons, and representatives
of persons likely to be affected. Then, there is the Central Advisory
Board to advise the Centre and the States in the matter of fixing and
revision of the m i n i m u m wages. In the opinion of the Court, these
provisions constitute sufficient safeguards against any hasty or cap-
ricious decision by the Government.
I n contrast to a normal trade, in the case of an exceptional
trade, such as a business dangerous to the community 6 0 or one relat-
ing to a 'commodity essential to the life of the community,' 6 1 the
State m a y impose a total prohibition at least for a time and, therefore,
in these areas the same standards as are applicable to normal trades
need not be applied. T h u s in M.B. Cotton Association v. Union of
India™, a rule b a n n i n g all hedging contracts in cotton except those
permitted by the Textile Commissioner by a general order, and also
authorising the Commissioner to place such restrictions and
conditions as he thought fit on these contracts, was held valid be-
cause cotton 'being a commodity essential to the life of the com-
munity, it is reasonable to have restriction which may, in certain
circumstances, extend to total prohibition for a time of all normal
trading in the commodity.'
Licensing is one of the modern major administrative techniques
to regulate the carrying on of trade a n d the above mentioned princi-
ples regarding the permissible limits within which discretion may
b e conferred on the Executive in the area of trade apply to the
area of licensing also. T h a t a trade can be licensed has been esta-
60. Cooverjee v. Excise Commissioner, A.I.R. 1954 S.C. 220 ; (1954) S.C.R. 873.
See infra for a further discussion of this case.
61. M.B. Cotton Association v. Union of India, A.I,R, 1954 S.C. 634.
62. ibid.

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 M.F. JAIN 241

blished as a general proposition.63 That the function of issuing of

licences, cancellation, renewal and revocation of them, is eminently
an administrative function is supported by several judicial decisions.64
In the Dwarka Pd65 case the Supreme Court held that the power
to grant or withhold licences is necessarily vested in "certain public
officers or bodies" and they may be left with a certain amount of dis-
cretion for this purpose. In normal trades, the prevailing judicial
philosophy appears to be, however, that an unguided and unregulated
discretion cannot be left with administrative officers in licensing
matters, such as granting or revoking a licence to carry on a trade or
to impose any or an unreasonable condition on the licensee.66
Thus the Supreme Court held in Dwarka Prasad v. The State of Uttar
Pradesh*1 that a rule requiring a person to take a licence to stock, sell
or store for sale an essential commodity like coal is 'unexceptional
as a general rule,' but an absolute power conferred on a licensing
authority to except 'any person' or a 'class of persons* from taking
out a licence is unreasonable for if he 'acts arbitrarily or from
improper motives, there is no check over it and no way of obtaining
redress.' In the same case, the Court has further held that an
absolute power given to an administrative authority to grant or
refuse to grant, renew or refuse to renew, suspend, revoke, cancel
or modify any licence without there being any rules, principles
or directions given on these matters to guide %he discretion of the
authority is unreasonable. It is not reasonable to commit such a
matter to the unrestrained will of a single individual who can use
his discretion in any way he chooses without there being anything
in the rules to ensure a proper execution of the power or operate as
a check upon injustice that might result from the improper execution
of the same. A provision requiring the authority to record reasons
for what is done, does not constitute 'an effective safeguard' without
there being a higher authority to examine the propriety of the reasons
and revise or review the decision of the subordinate officer. In such
a situation, the recording of the reasons are only for the subjective
satisfaction of the licensing authority and not "for furnishing any
remedy to the aggrieved person." The case depicts clearly that the
Court is thinking here both of procedural and substantive safe-

63. Dwarka Pd. V. U.P., A.I.R. 1954 S.C. 224 ; (1954) S.C.R. 803.
64. e.g. JVakkuda Ali v. Jayaratne. 1951 A.C. 66.
65. Supra.
66. Ibid ; See also Sheshadari v. Dist. Magistrate, A.I.R. 1954 S.C. 747 ; (1955)
S.C.R. 686.
67. Dwarka Pd.

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242 ADMINISTBATIVE DISCRETION AND FUNDAMENTAL BIGHTS IN INDIA

guards. 68
Similarly, it has been held that the Executive cannot impose
an unreasonable condition in a licence to carry on a normal trade.
Thus in Sheshadri v. Dist. Magistrate,^ a rule requiring an exhibitor
to show at each performance approved film of such length and for
such length of time as the Government might direct was held to be
unreasonable as the length of period or length of time had not been
specified; the Government was vested with an unregulated discretion
to compel an exhibitor to show a film of any length; there was no
principle to guide the licensing authority and such a condition 'may
lead to the loss or total extinction of the business itself.' In the same
case, another rule which prescribed a 'minimum length of film' to be
shown at 2000 ft. but left the 'maximum' unspecified was held to be
bad because the discretion of the authority is unrestrained and un-
fettered and must lead to an unjustifiable interference with the right
of the licensee to carry on his business.
In this case the Supreme Court laid down the principle that the
law cannot vest an absolute or unguided discretion in a licensing
authority to impose any condition on the licence as this might lead
to a total destruction of the business itself. Similarly, the Supreme
Court has held that an absolute discretion to revoke a licence cannot
be conferred on an administrative authority. In Ganpati v. Ajmer10,
a rule requiring that a person desiring to hold fairs should obtain a
permit from the District Magistrate and empowering the District
Magistrate to 'revoke any such permit without assigning any reasons
or giving any previous notice' was held to be unreasonable because

68. The principle laid down by the Supreme Court in the above case has
been followed by the High Courts in several cases. In Khassim v. Municipal
Council (A.I.R. 1956 Mad. 181), a provision conferring on the executive
authority an 'absolute power of refusing to grant the licence as also the
power of imposing such restrictions and conditions as he might think fit',
was in question. It was held that the vesting of such an absolute power
in an executive authority without any guidance by the Legislature as to the
'relevant conditions and restrictions' would not be a reasonable restriction
within the meaning of Article 19(6). Similarly, in Amir Chand vf State
(A.I.R. 1956 All. 562), a provision of Cotton Textile (Control) Order,
1948, providing that 'the Textile Commissioner may without assigning
any reason, refuse to grant a licence to any person and his decision shall be
final' was struck down by the Allahabad High Court, because there was
vested in the licensing authority an unrestricted power to grant or to refuse
a licence and 'there is no higher authority prescribed in the order who
could examine the propriety of the reasons and revise or review the
decision of the subordinate officer', and thus the provision constituted
an unreasonable restriction upon the freedom of trade and business,
69. A.I.R. 1954 S.C. 747 ; (1955) S.C.R. 686.
70. A.I.R. 1955 S.C. 188; (1955) S.C.R. 1065.

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 M.P. JAIN 243

it conferred an absolute and arbitrary discretion on the authority

concerned.
Besides the general proposition that administrative discretion
should not be unregulated, and that there should be something in
the relevant legal provisions to regulate and guide the executive dis-
cretion to grant or revoke licences so as to ensure a proper execution of
the power, and to act as a check on injustice arising from an improper
execution of the same, it has not yet been found possible by the
courts to formulate the norms for minimum safeguards. The courts
hitherto have dealt with each case on its merits and have scrutinised
the relevant legal provisions in order to find out whether the adminis-
trative discretion left with an authority is unregulated or unguided.
In the Dwarka Prasad case the Supreme Court has held inadequate
a provision requiring an authority to state reasons for its actions with-
out there being a higher authority to examine the reasons and revise
the decision of the subordinate, if necessary. The High Courts have
also expressed some ideas in this regard, but the last word may yet
have to be said by the Supreme Court. The Calcutta High Court
has suggested71 two safeguards : providing an opportunity to the person
concerned to make a representation against the action of the adminis-
tration and recording of reasons for decision by the authority so that
it might be possible to judge whether the order is valid, malafide or
arbitrary. In Kameshwar v. District Magistrate,7? the Allahabad High
Court quashed an order cancelling a licence which had been made
without giving to the party concerned an opportunity to present his
case.
What norms will ultimately be developed by the courts to con-
trol administrative discretion in the matter of trade licences, is difficult
to foresee at this stage. However, it is suggested that the following
safeguards are necessary : right of hearing should be afforded to the
party concerned;72* recording of reasons by the administrative authority
for taking action ; and the consltution of some kind of body—preferably
71. Anulathi v. Chatterji, A.I.R. 1951 Cal. 90.
72. A.I.R. 1954 All. 144.
72a. In jVakkudda Ali case, the Privy Council held a hearing not essential as
revocation of a licence is only withdrawing a privilege. In England
several decisions like Nakkudda Alt V. Jayaratne (1951 A.C. 66) and Regina
v. Metropolitan Police Commr. ex parte Parker (1953 1 Weekly L.R. 1150
Q,.B.) proceed on the basis that a licence is a privilege and so it can be
withdrawn merely by executive action without a fair hearing. This
view has been criticised in England and it has been suggested that there
should be a hearing in such a case. Schwartz, Forms of Review Action
in English Adm. Law, 56 Col. L.R,. 20£ (1956) ; De Smith, The Right to a
Hearing in English Administrative Law, 68 Harv. L. Rev., 569 /1955) ;
Wade, The Twilight ofNatural Justice, J67 L.Q,.R 103.

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244 ADMINISTRATIVE DISCRETION AND FUNDAMENTAL RIGHTS IN INDIA

judicial or quasi-judicial in nature—to review or re-examine the

reasons stated. This function should be allotted to a tribunal indepen-
dent of the administration.
Cooverjee v. Excise Commissioner™ constitutes an important judicial
pronouncement regarding the discretion which can be left to a licensing
authority in case of an abnormal or exceptional kind of trade, like
that of selling liquor. The Excise Commissioner was left with a very
broad discretion in the matter of issuing licences for liquor trade. A
licence could be granted on payment of such fees, for such period,
subject to such restrictions, on such conditions, in such form, and
containing such particulars as the Commissioner might direct either
generally or in particular cases. Power was also given to the Commi-
ssioner for cancellation or suspension of the licence and also for its
withdrawal. Here, therefore, was a very broad bestowal of discre-
tion on the Executive but the Supreme Court held the legislation valid
primarily on the ground that it sought to regulate the liquor trade to
which the same standards as are applicable to normal trades could
not be applied. As it was a business dangerous to the community,
it could be entirely prohibited by the State. This appears to be a
case where the Court refused to read any limit on executive discretion
to control a trade on the ground of its nature. It is submitted that
even though in such a case the Executive might be conceded some-
what more discretion than it can be left with in a normal trade, yet
some procedural safeguards should have been insisted on even in such
a case against the misuse of powers by the executive officers. The
Legislature may impose restrictions as it likes, but it is certainly a very
different matter to leave it to the executive officer to control a trade
in any way he likes.
Article 14
Article 14 constitutes a very potential source of judicial power
to regulate administrative discretion. This Article condemns discrimi-
nation ; it forbids class legislation but permits classification founded
on intelligible differentia and having a rational relationship to the object
sought to be achieved by the Act. Speaking generally, the judicial
view is that conferment by the Legislature of an arbitrary power on
an administrative authority, unregulated by any rule or principle,
offends against Article 14.
The Article has been frequently invoked in case of legislation
setting up special courts. The Legislatures, instead of themselves
specifying the classes of cases which can be tried by the special courts
73. A.I.R. 1954 S.C. 220 ; (1954) S.C.R. 873.

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 M.P. JAIN 245

set u p , usually leave this m a t t e r to the Executive. I n State of West Bengal

v. Anwar Ali Sarkar?* such a technique adopted by the Legislature was
held to be void under Art. 14 because it gave 'uncontrolled authority 5
to the Executive 'to discriminate'. T h e term 'speedier trial' as a
possible basis of classification by the Executive was rejected as being
too ambiguous and vague. I n later cases in this area the principle
that the Executive cannot be left with an unguided a n d uncontrolled
discretion to make classifications for the purposes of a law discriminatory
in nature has been sustained, but in its actual application to
concrete factual situations its efficacy has been very m u c h diluted ;
the Judiciary has shown too much deference to the Legislature a n d
the Executive, and has not always insisted on a clear a n d definite
statement of policy within the law to guide administrative discretion.
T h e courts have felt satisfied with very vague a n d inarticulate policy
statements which can in no way be effective to control a n d regulate
executive discretion to discriminate. For example, in Kathi Raning
v. State of Saurashtra,'15 a provision almost identical in terms to the one
occurring in the Anwar Ali casen was treated as valid. Although the
same principle viz., that " I f the statute itself does not disclose a
definite policy or objective and it confers authority on another
to make selection at its pleasure, the statute would b e held
on the face of it to be discriminatory" a n d 'if the legislative
policy is clear a n d definite' then the discretion left with the
Executive to classify the objects to which the law will be
applied is not a n unguided discretion, since 'it has to b e
exercised in conformity with the policy laid down' was
reiterated, yet in the Saurashtra law such a policy was found laid
down in the preamble in the words 'to provide for the security of the
State, maintenance of public order e t c ' I t is rather difficult to
understand how these words are more definite t h a n the words
'speedier trial' which occurred in the Bengal law a n d were held to b e
74. A.I.R. 1952 S.C. 7 5 ; (1952) S.C.R. 284. The Bengal Act authorised
the Government to constitute special courts of criminal jurisdiction to 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. Trial
in such court was to be without a jury or assessors. The procedure
for committal in the sessions cases was omitted altogether. Court's
power to grant adjournment was restricted. The court was expressly
empowered to convict a person of an offence with which he was not
charged if it transpired from the evidence adduced at the time of trial
that such offence was committed by him. The right of revision to the
High Court was taken away entirely though appeals were allowed.
75. A.I.R. 1952 S.C. 123 ; (1952) S.C.R. 435. Other cases in this area a r e :
Lachman Das v. State of Bombay, A.I.R. 1952 S.C. 235 ; (1952) S.C.R. 710 ;
Kedar Nath v. West Bengal, A.I.R. 1953 S.C. 4 0 4 ; (1954) S.C.R. 30.
76. Supra.

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246 ADMINISTRATIVE DISCRETION AND FUNDAMENTAL RIGHTS IN INDIA

too vague in the Anwar Ali case11. It is doubtful whether the general
statement of policy in the Saurashtra law, and that too in the
preamble, could in any way be effective to control executive action.
There have been a number of cases under Art. 14 having a
bearing on the permissible limits of executive discretion to make
classification in which the same principle, as stated above, has been
applied 78 . The most important case up to date is Pannalal Binjraj v.
Union of India19 decided by the Supreme Court in 1957. Here
was questioned the validity of S. 5(7A) of the Income-tax
Act, which authorises—(z) the Commissioner of Income-tax to
transfer any case from one Income-tax Officer to another under
h i m ; and (ii) the Central Board of Revenue to transfer a
case from one place to another anywhere in India. According
to S. 64 (1), an assessee is to be taxed at the place of his
business. Pannalal Binjraj's assessment case had been transferred
from Calcutta to Delhi and so they challenged the validity of
S. 5(7A) on the ground that it vested the Executive with naked and
arbitrary power which was unguided and uncontrolled ; that under
it the case of one assessee could be transferred, whereas others similarly
situated could continue to be assessed at the place of their business ;
that it did not prescribe any hearing, or recording of reasons by the
authority transferring the case ; that circumstances when a case could
be transferred had nowhere been specified. To appreciate the effect
of the provision in question let us suppose a case like this : X, Y and
Z are assessable under the Income-tax Act at Calcutta, the place of
their business. X's case is transferred from Calcutta to Delhi.
Undoubtedly, X has been given a discriminatory treatment as
compared to Y and Z who continue to be assessed at Calcutta. The
law has vested the power to so treat X differentially. Ordinarily,
according to previous case law on the point, such a law could be held
valid if it contained an enunciation of policy to control and regulate
administrative discretion. But in the instant case, the Supreme
Court held it valid on other grounds. In the first place, holding that
the purpose of the Income-tax Act is to levy income-tax, assess and
collect it, the Court held that the provision in question had been

77. Supra.
78. See, for example, Bishambhar v. State of Orissa, A.I.R. 1954 S.C. 139,
(1954) S.C.R. 842, where an Orissa Jaw having a long preamble authorising
the State government to take over any estate free of all encumbrances
was held valid as there was a clear enunciation of policy and the executive
discretion was to be exercised in the light of this policy and, therefore,
it was not absolute or unfettered.
79. A.I.R. 1957 S.C. 397; (1957) S.C.R. 233.

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 M.P. JAIN 247

enacted for 'administrative convenience' and * convenient and efficient

assessment' of income-tax. Secondly, the Court stated that merely
because the case of an assessee could be transferred from one Income-
tax Officer to another, it would not by itself be sufficient to charac-
terise the exercise of discretion as discriminatory. This observation,
it is submitted, suffers from one weakness. No discrimination may
be involved when a case is transferred from one Income-tax Officer to
another in the same place but it is difficult to accept the argument
that there is no discrimination when the transfer is from one place to
another. In making this observation, the Supreme Court appears
to have ignored its own earlier view expressed in the Bidi Supply
Company®* case that such a transfer caused expenses and harassment
to the assessee and so 'the reality of the discrimination cannot be
gainsaid.5 Thirdly, the Court sought to justify the provision in
question by stating that the power of the Board of Revenue was 'not
a naked and arbitrary power, unfettered, unguided or uncontrolled
so as to enable the authority to pick and choose one assessee out of
those similarly circumstanced thus subjecting him to discriminatory
treatment as compared with others who fall wijthin the same category.'
But, how was the power controlled? According to the Court, 'the
power is guided and controlled by the purpose which is to be achieved
by the Act itself,5 and the purpose of the. Act is a 'more convenient
and efficient collection of the tax.5 Now, it looks rather unconvinc-
ing that 'administrative convenience' can in any wTay control 'adminis-
trative discretion.' In effect, all the power is left in the hands of the
administrator without any control. Fourthly, the Court observed that
after all no one has a Fundamental Right to be assessed at his place
of residence or business. True, but it is submitted that this argument
really begs the whole question, for, the assessee, in the instant case,
claimed a Fundamental Right not to be assessed at the place of his
business, but to be treated alike and equally with others, and to be
treated differentially only when the Legislature laid down the cir-
cumstances for that. This is a Fundamental Right solemnly declared
in the Constitution, and enforced in so many cases by the Supreme
Court itself.
It is, however, interesting to note that in the instant case the
Supreme Court took an opportunity to impress on the Income-tax
authorities the importance of giving notice to the party to be affected,
of affording him a reasonable opportunity to represent his views and
of reducing into writing the reasons for orderinar the transfer. "If

80. 1956 S.C.J. 492 ; (1956) SVC.R. 267.

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248 ADMINISTRATIVE DISCRETION AND FUNDAMENTAL RIGHTS IN INDIA

the reasons for the transfer are recorded, it will help the court in deter-
mining the boncfides of the order when it is challenged as malofide
a n d discriminatory." But from the way in which, the Supreme
Court has supported the validity of the provision in question, it is
by no means certain t h a t the officers will heed this advice of the
supreme judicial tribunal in the land for there does not appear to be
any method by which this precept m a y be enforced.
T h e case, in effect, has whittled down the efficacy of Article 14.
I t m a y be a consolation to note that the principle developed in the
earlier cases that the Legislature should state the policy to regulate
administrative discretion to effect classification for discriminatory
legislation has not been repudiated, but its utility becomes very doubt-
ful when such a vague policy as 'administrative convenience' is
deemed a d e q u a t e to satisfy the test.
T h e result appears to be the following. The executive
discretion to effect classification to be valid under Art. 14 should
not be uncontrolled or unguided; there should be a definite state-
m e n t of policy which the Executive is required to effectuate while
exercising its discretion. I n practice, however, the way in which
the principle has been applied to concrete factual situations cannot
be said to be very satisfactory. T h e Judiciary has sanctioned many
situations where guidance afforded to the Executive by the Legislature
has been extremely vague indeed. This development has weakened
judicial control over the Executive, for the more indefinite the policy
is, the more difficult it is to control the Executive.
CONCLUSION
I t is gratifying to note that in quite a large n u m b e r of sit-
uations, the Judiciary has rejected legislative attempts to confer
unregulated and unguided discretion on the administrative authori-
ties in areas covered by some F u n d a m e n t a l Rights, such as, under
Articles 19, 14 and 31(2), a n d that it has insisted t h a t the Legislature
should set u p a standard, lay down a policy or principle subject to
which administrative discretion may be exercised.
However, the efficacy of this wholesome approach has been
somewhat mitigated and diluted by the Judiciary accepting at times
vague a n d general statements of policy in the statutes as adequate
for holding the discretion conferred on the administrative authorities
as not 'unregulated.' Sometimes, the standard accepted as suffi-
cient for this purpose has been so general a n d vague t h a t it is doubt-
ful whether it serves any useful purpose by way of controlling
administrative discretion. Further, quite often the so-called standard

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 M.P. JAIN 249

is stated not in the substantive clause which confers discretion on the

authority but in the preamble of the statute and so a doubt remains
whether the Judiciary can ever enforce such a 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 con-
formity with the standard set up. This purpose can be effectively
achieved only if the courts insist that the Legislature should express
its policy or standard or principle, clearly, and in such a way as
would help the Judiciary to keep the exercise of the discretion with-
in the four corners of the legislative policy.
There is no uniformity yet on the procedural safeguards to
be contained in legislation under the different Fundamental Rights.
In case of some, like freedoms of'trade', 'association' and 'property',
the Judiciary has insisted on more substantive safeguards than is the
case under other Fundamental Rights like those of 'movement' or
'residence' of citizens.
In the case of 'association' and 'property' the courts have al-
ready 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 even on such a weak safeguard as that of an
Advisory Board in case of externment of a person from a local area.
If the Judiciary has found it necessary to insist on more than an
advisory board in case of a right of'association,' there does not appear
to be any very convincing reason why at least an advisory board be
not required in cases of externment. This, it appears, is a minimum
safeguard which the Judiciary should impose under the term 'reason-
able' in the relevant Fundamental Right.
The minimum procedural safeguards in cases of withdrawal
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 in this respect
(expect in cases of exceptional trades) and that a safeguard that the
authority should record its reasons for taking action is not sufficient
by itself, and that some thing more than that is necessary. It may
be surmised that the Judiciary may find it possible to insist on a fair
hearing as a procedural safeguard in this area.
As the above survey of the cases reveals, the efficacy of Article
14 as a source of judicial power has decreased and as a consequence
judicial control of administrative action has been very much watered

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2 5 0 ADMINISTRATIVE DISCRETION AND FUNDAMENTAL RIGHTS IN INDIA

down. The matter was placed at its highest in the Anwar AWs case,
but since then constantly there has been in progress a process of whitt-
ling away its efficacy. The case of Panna Lai Binjraj, it is suggested,
is a conspicuous example of judicial deference to administrative
convenience and even the once well established proposition that under
Article 14, administrative discretion to be valid should be circum-
scribed by a clear legislative policy, has come under a cloud. Article
14 constitutes a great potential reservoir of judicial power and can
serve as a great bulwark against excessive executive discretion. If
the courts handle Art. 14 carefully and insist on a more definite, pre-
cise statement of policy, courts can effectively control the adminis-
tration.
It may not be out of place here to mention, that in the Funda-
mental Rights we have 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
deal 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 Consti-
tution has within itself several checks and balances and it depends
upon us how we use them. It will lead to better democratic ideals
and traditions if we exploit fully the expedients which the Consti-
tution has placed at our disposal for controlling administrative action
and we keep it within proper bounds.
In a welfare state, a balance has to be drawn between the
Government control and individual freedom, and it is for the courts
to see that this balance is not tilted too much in favour of the Govern-
ment as against the individual.

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