09/02/2021 Reasonable restrictions under Article 19 and administrative discretion - iPleaders

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Reasonable restrictions under Article 19 and

administrative discretion
By Diva Rai - November 2, 2020

Image source - https://bit.ly/2HVbbKp

This article is written by Shobhna Aggarwal, currently pursuing B.Com LLB from Banasthali
Vidyapith. This article deals with the concepts of reasonable restrictions and administrative
discretion. With regard to administrative discretion, the issues pertaining to it, such as the
doctrine of excessive discretion, judicial review of administrative discretion, and abuse of
administrative discretion have also been discussed.

Table of Contents 
1. Introduction
2. Test of reasonableness under Article 19
3. Administrative discretion: Meaning
4. Administrative discretion and Fundamental Rights in India
5. The doctrine of excessive delegation of discretion
6. Judicial Review of Administrative Discretion
7. Abuse of Administrative Discretion
8. Conclusion

Introduction
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The fundamental freedoms guaranteed by the Indian Constitution are not absolute meaning
thereby that they are subject to certain limitations, the parameters of which have been
defined by the Constitution itself. These limitations are usually known as “reasonable
restrictions”, which are provided under clauses 2 to 6 of Article 19 of the Indian Constitution.

The State can truncate the enjoyment of the freedoms provided in Article 19(1) through law.
The exercise of the power of the State to curb freedoms through a law takes the form of
executive action. Administrative discretion is one of the manners in which the executive can
afflict the enjoyment of fundamental freedoms of the Indian citizens.

The concept of discretion came into existence with the development of the modern welfare
state, in which the government has to discharge a large number of functions for the benefit of
the citizenry. In order to discharge those functions, the administrative authorities have come
to enjoy vast discretionary powers for the better enforcement of the law. Traditional
conceptualization of rule of law abhorred the existence of discretionary powers to the
executive, deeming it to be a violation of the rule of law. However, providing discretionary
powers to the executive has become absolutely necessary for the functioning of the modern
welfare state. To resolve the dichotomy, it has been suggested that if administrative discretion
cannot be altogether done away with it should be limited to the smallest possible extent and
should be subject to judicial review.

Test of reasonableness under Article 19

The fundamental freedoms guaranteed by Article 19(1) of the Indian Constitution are not
absolute. They are subject to reasonable restrictions owing to the simple rationale that for the
society to function in an orderly manner, people cannot exercise their rights in such a manner
which is injurious to the society as a whole because if it is done, it will lead to complete chaos
and destroy the basic prerequisite needed for the enjoyment of civil liberties – organized
society.

The rationale behind incorporating reasonable restrictions has been discussed to a great
extent in the case of A.K. Gopalan v. State of Madras. Das, J., had opined that reasonable
restrictions are imposed on the enjoyment of fundamental rights due to the fact that in certain
circumstances, individual liberty has to be subordinated to certain other larger interests of the
society. Shastri, J., had observed that in civil society, man’s actions, arising out of his exertion
of the fundamental rights conferred upon him, have to be controlled and regulated so as to
reconcile the conflicting exercise of the civil rights by other people.
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It is to be noted that reasonable restrictions can be imposed only through law and not through
some departmental instructions. Usage of the word “reasonable” signifies that the restrictions
to be imposed should not be excessive and beyond what is needed in the larger interest of the
society. The deprivation of the fundamental rights guaranteed in Article 19(1) should be
guided by the faculties of reason and intelligence and not be based on whims and fancies of
the government of the day. The requirement of restrictions to be reasonable means that the
constitutional courts in India have the power to judge the reasonableness of restrictions in
question.

As is obvious, there is no standard or exact test to judge the reasonableness of any restriction.
The judiciary has to look at the facts and circumstances of each case to arrive at any
conclusion. However, there are certain guidelines, which the courts should follow to determine
whether the restrictions imposed are reasonable or not.

In the case of Chintanman Rao v. State of Madhya Pradesh, it was held that reasonableness
demands proper balancing of the fundamental rights of the people and the concerns of the
State. Further, it was held that it is the judiciary, and not the legislature, which has to finally
judge the reasonableness of the restriction. Furthermore, it was held that restriction can be
imposed by law only and not an executive order.

In the case of N.B. Khare v. State of Punjab, it was held that reasonableness must be both
procedural and substantive.

In the case of the State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, it was held that a
restriction has been imposed for the purpose of achieving any of the objects laid down in Part
IV of the Indian Constitution may be regarded as reasonable.

In the case of Narendra Kumar v. Union of India, it was held that in certain cases even total
prohibition may be deemed as a reasonable restriction. For instance, a complete ban on
carrying out dangerous trades such as the cultivation of drugs or sale of liquor may come
under the ambit of reasonable restrictions.

In the case of Arunachal Nadar v. the State of Madras, it was held that the restriction imposed
on the enjoyment of any fundamental right must have a rational nexus with the object that
the legislature seeks to achieve.

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In the case of the State of Madras v. V.G. Row, it was held that reasonableness is to be
determined by an objective standard and not subjective one i.e., the viewpoint of the normal
reasonable man has to be taken into account. Further, it was held that there is no exact test
or standard to judge whether the restriction in question is reasonable or not and the same has
to be determined by analyzing the facts and circumstances of each case.

Administrative discretion: Meaning

In simple terms, discretion means the ability to choose an option from the various, or at least
two, alternatives available. In the administrative law sense, it can be simply said to be the
ability of the administrative authority to pick and choose from the alternatives available before
it.

Sir Edward Coke defined discretion as the knowledge to distinguish between falsity and truth,
or right and wrong, without resorting to any personal reasons. In the case of Susannah Sharp
v. Wakefield, Lord Halsbury opined that when something is left to administrative discretion, it
means that it has to be done in accordance with the principles of justice and reason and not
on the basis of the private opinion of the authority concerned.

It can be said that in pursuance of administrative discretion, the authority in question has to
take decisions not only on the basis of the evidence and is also bound to consider the policy
and expediency.

Administrative discretion and Fundamental Rights

in India 
As has been mentioned above, there has been a growing tendency in the modern welfare
states to leave a great amount of discretion with the administrative officials. This development
is quite disturbing as it has been realized that administrative discretion weakens judicial
control over executive action, especially in countries like England where there is Parliamentary
sovereignty and the legislature can freely delegate any amount of discretion to the executive.
However, unlike England, where the judicial control can be exercised over administrative
discretion only on the basis of law relating to torts or breach of contract, or on allegations that
the power has been exercised in mala fide manner or that it has been abused; in India, the
situation is somewhat better. In India, the constitutional courts can test the validity of the

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exercise of administrative discretion not only on the common law principles, as they exist in
England, but can also be tested against the touchstone of fundamental rights, which can be
used to ensure procedural as well as substantive safeguards. The important provisions of the
Constitution in this regard are Articles 14, 19, and Article 22 of Indian Constitution.

Article 22 lays down the various safeguards which the authorities have to abide by in cases of
preventive detention of any person. However, the judicial control over preventive detentions in
India is quite superficial and is concerned only with ensuring procedural safeguards and does
not dwell into the scrutiny of grounds for putting a person into preventive detention or dealing
with the question that whether the grounds said to be justifying preventive detention are
correct or not, or other substantive questions.

Article 14 of the Indian Constitution, which confers the right to equality upon the people, and
which prohibits class legislation is a good source for judicial scrutiny of administrative
discretion and has been frequently invoked. The general judicial view is that any conferment of
discretion to authority without being regulated by any rules and regulation is arbitrary and
hence violative of Article 14 of the Indian Constitution.

Articles 19(2) to 19(6) lay down specific grounds on which reasonable restrictions can be
imposed so as to impair the exercise of the fundamental freedoms guaranteed by Article
19(1). As mentioned above, while the constitutional courts have only superficial control over
the discretion available to the authority in preventive detention cases, but regarding the
freedoms guaranteed by Article 19, the constitutional courts have been very strict in dealing
with unfettered discretion given to administrative authorities to impair the enjoyment of the
freedoms guaranteed by Article 19.

In the case of Shreya Singhal v. Union of India, the Supreme Court struck down Section 66-A
of the Information Technology Act, 2000 on the ground that it gave unfettered discretion to
the executive, in the absence of an elaborate definition of the words used in the provision, to
initiate criminal prosecution against any person who caused annoyance in an indecent manner,
a vague offense. In the case of State of Madhya Pradesh v. Baldeo Prasad, the Supreme Court
struck down Section 4-A of the Central Provinces and Berar Goondas Act, 1946 as amended by
the Madhya Pradesh Act XLIX of 1950, on the ground that it provided a vague definition of
goonda, and gave unlimited discretion to the executive authority to treat any person as
goonda and deprive him of his rights guaranteed by Articles 19(1)(d) and 19(1)(e).

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The Supreme Court has consistently emphasized that the statute allowing the executive the
discretion to impose restrictions should clearly define the principle on which the restrictions
are to be imposed, the time frame for which they can be imposed, and the person who is
aggrieved by the acts of the executive should have the opportunity to make a representation
before the authority. But, in some cases, it has been seen that the Supreme Court has failed
to uphold its own judgments on this issue. One such example is the Jammu and Kashmir
internet blockade case, whereby the Supreme Court abdicated its job.

The doctrine of excessive delegation of discretion

From the very beginning, the Supreme Court of India has held that the validity of legislation
can be challenged on the ground of excessive delegation by the legislature or on the ground of
delegation of essential functions. Correspondingly, the courts have also developed the doctrine
of excessive delegation of discretion which theories that providing un-canalized discretion to
administrative authorities is invalid and hence, the legislature must lay down specific and
elaborate guidelines to deal with the exercise of administrative discretion. The difference
between the two is that while in case of delegated legislation, the courts have adopted an easy
approach and have upheld the validity of a number of legislation which contained quite vague
provisions, but in the case of administrative discretion, the courts, by involving, fundamental
rights have laid down that administrative discretion must be strictly regulated lest it becomes
a cause for the courts to invalidate it].

In the case of Sheo Nandan Paswan v. State of Bihar, it was observed by Bhagwati, J., that
the entire development of administrative law in India has been consistently focused upon
ensuring that the administrative authorities are not conferred unfettered and un-canalized
discretion by the legislature and that it is strictly regulated through procedural safeguards and
laying down elaborate guidelines for the exercise of administrative discretion.

Judicial Review of Administrative Discretion

Usually, the constitutional courts do not ordinarily interfere, owing to the lack of expertise to
exhaustively deal with the subject matter at hand, with the decisions taken by any
administrative authority in the exercise of its power of administrative discretion. However, it
does not mean that the courts cannot call into question any exercise of administrative
discretion by any authority, however wholly illegal it may be. It simply means that though the
courts won’t ordinarily interfere with the decisions of administrative authority taken in the
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exercise of its discretion, yet, the legislature must refrain from giving unfettered discretionary
powers to administrative authorities, in which case the courts will have to intervene.

In India, courts interfere with the discretionary powers of administrative authority in following
two situations – firstly, failure of the authority to exercise the discretion given to it and
secondly, abuse of discretion by the authority.

Failure of the authority to exercise the discretion available to it deals with situations in which
the authority has sub-delegated its authority to someone else though there is no such express
provision which directs it to do so, non-application of mind by the authority, cases of power
coupled with duty, imposing fixed rules in each case instead of judging each case on its merit,
etc.

Abuse of Administrative Discretion

Wherever discretion has been conferred upon an administrative authority, it must act within
the confines of the law and exercise its discretion in accordance with the law. The expression
abuse of administrative discretion, simply put, refers to situations whereby the administrative
authority has exercised the discretion available to it in an unreasonable or improper manner.
In such cases, the court may intervene and issue the requisite direction in the case.

The grounds on which judicial review can be sought for alleged abuse of administrative
discretion are as follows:

Administrative authority acts in a domain in which it does not have jurisdiction.

The authority acts in excess of the jurisdiction given to it by the legislature.
The authority has attempted to do indirectly what it is not allowed to do directly i.e., the
colorable exercise of power.
Irrelevant considerations have been taken into account by the authority while arriving at a
conclusion.
Relevant considerations have not been taken into account by the authority while arriving at
a conclusion.
The action of the authority is arbitrary.
The authority has acted in a mala fide manner.
Non-adherence to the principles of natural justice.
Unreasonableness.
The law from which the authority derives its discretion is colorable legislation.
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In the case of Darshan Lal Mehra v. Union of India, the Supreme Court upheld the
constitutionality of ‘theatre tax’ which was imposed by Lucknow Mahanagar Palika, at the rate
of Rs. 5 per cinema show held in a building which had a rental value of Rs. 10,000 or more
and Rs. 3 per show in other cases, under the U.P. Nagar Mahapalika Adhiniyam, 1959 which
allowed the Mahapalikas to impose a tax “for the purposes of this Act” and rejected the
contention that the use of this expression was a case of excessive delegation, holding that the
obligations and functions of Maharlikas are well defined and tax can be imposed only in
accordance with the provisions of the Act. Further, the classification of cinema houses on the
basis of rental value was also upheld as, the Court observed, the rental value reflected the
seating capacity, quality, and locality of cinema houses, all factors which affect the
entertainment value and the tax is imposed on entertainment, meaning that the classification
is based on intelligible differentia (difference in rental value) and has a rational nexus with the
object (tax on entertainment).

In the case of Express Newspaper (P) Ltd. v. Union of India, a notice of re-entry upon
forfeiture was issued by the Government to the Indian Express newspaper. The newspaper
alleged that the notice was mala fide and was based on extraneous consideration – critical
commentary on the Congress government by the Indian Express. The government did not
deny the allegations but dubbed them irrelevant. The Court quashed the notice for being mala
fide and also opined that it is for the Court to decide what is relevant or not. The parties are
not supposed to tell it.

In the case of J.K. Aggarwal v. Haryana Seeds Development Corporation, a Company

Secretary challenged the validity of an inquiry conducted against him, which led to his
dismissal, on the ground that there was a violation of natural justice as he was not allowed
legal representation even though the presenting officer of the company was a legally qualified
person. The Supreme Court of India accepted the arguments and held that the inquiry was
conducted in violation of natural justice principles as the appellant was not allowed legal
representation, which led to the denial of a fair chance to him to represent his case in the best
way possible against a trained prosecutor.

In the case of Pratap Singh v. The State of Punjab, a surgeon’s preparatory leave to
retirement was canceled after being granted and then he was suspended. Finally, he was
dismissed. The dismissal was set aside as his allegation that the actions were mala fide as he
did not yield to illegal demands of the CM were accepted by the Court. In the case of the State
of Bihar v. Ganguly, it was held that the High Court can issue a writ of certiorari filed
mandamus in relation to an order of reference issued by the appropriate government under

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Section 10 of the Industrial Disputes Act, 1947. By certiorari, the order of the appropriate
government can be corrected and by mandamus, the appropriate government can be directed
to consider the matter afresh.

Conclusion
The structure of the modern welfare state is such that it requires that the administrative
authorities are given discretionary powers to help them perform their functions properly. The
existence of administrative discretion opens up a number of facets for the interaction, in the
form of conflict or convergence, between administrative discretion and fundamental rights.

At the outset, it has to be acknowledged that the Indian judiciary has done a wonderful job by
consistently striking down the provisions which conferred unfettered and un-canalized
discretion to administrative authorities. This approach of the Supreme Court is laudable and in
consonance with the idea of the Indian republic as it was visualized by the framers of the
Indian Constitution. However, unfortunately, the judiciary itself has weakened the spirit of rule
of law by, at various odd occasions, upholding the validity of certain vague provisions which,
in their practicality, conferred unbridled discretionary power to the administrative authority.

While earlier, the courts used to deal only with the question of the existence of administrative
discretion; of late, they also look through that the exercise of power is done in a lawful
manner. While the judiciary does not usually intervene in administrative decisions owing to
lack of expertise in the subject matter, yet, it does intervene, as it deems fit, so as to ensure
that the discretionary power being enjoyed by an authority is not unfettered and exploitative.

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It is submitted that for rule of law to thrive in a modern welfare state, a stable balance has to
be achieved between the administrative discretion that the State needs to confer upon the
executive and the fundamental rights and freedoms of the people. Then only, it can be hoped
that India will become the ideal democratic republic as envisaged by the Indian Constitution.

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