DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA, SABBAVARAM, VISAKHAPATNAM - 531035

ANDHRA PRADESH, INDIA

TITLE OF THE RESEARCH PAPER

Administrative discretion and right to privacy

By

Name of the Student: SHAIK J RAHAMAN

Roll No.: 2017083

Semester: 6th

Name of the Program: 5 year (B.A., LL.B. / LL.M.)

Name of the Faculty Member: Dr. K Sudha, Assistant Professor

Date of Submission: 12-12-2020

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 TABLE OF CONTENTS

1. ACKNOWLEDGEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

2. Introduction……... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

3. Administrative Discretion in Indian System …………….. . . . . . . . . . . . . . . . . . . . . . .7

4. Controls over the Administrative Discretion ………. . . . . . . . . . . . . . . . . . . . . . . . . . .10
5. Right to Privacy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ……16

6. Conclusion…….. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

7. Bibliography……... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

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 ACKNOWLEDGEMENT

“I would sincerely like to put forward my heartfelt appreciation to our respected Labour
law professor, Dr. K Sudha, Assistant Professormadam for giving me this golden opportunity
to take up this project regarding Administrative discretion and right to privacy. I have tried
my best to collect information about the project in various possible ways to depict clear picture
about the given project topic.”

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Introduction

“Since dropping the idea of the laissez faire concept, most countries in the world have followed
the concept of social welfare. With this effect, the administration was given a lot of discretion. In
order to accomplish the objective of social security, the state made many rules, under which
administrative authorities were granted many discretionary powers. And have the most ways to
fulfil their obligations. Many governments have unique expertise and instant decision-making
power to meet their duties. It is also important that the right to take an immediate decision
should be given to the administrative authorities. After that, depending on situations, they can do
their job and they can also make decisions. With this purpose, no legislation can be absolute in
the true sense of all discretionary powers. Nature is complex, so situations can also be changed.
Law cannot change easily as circumstances. Therefore law cannot control this dynamic society.
Whenever these administrative problems will rise, Legislative said that they do not know when
and how it will rise. Legislative is unable to provide any help against this critical situation, but
administration can solve this problem for this purpose legislative conferred the power of
discretion. We cannot fulfill the aim of social welfare state without discretionary powers of
administrative authorities. Inclusive growth and discretion both are mandatory for every country.
India is also following this concept. We had provided maximum discretion to administrative
authorities when they will perform their duty in respect of inclusive growth. Discretion can
convert in to arbitrariness so we had imposed a lot of restriction on them. Whenever they will
use these powers they will follow those rules also. They will perform their duty within the limits
which was imposed by the legislative body. When legislative conferred these powers to
administrative authorities they have to maintain the provision to control them also. There are two
types of control (Judicial and None Judicial) over the administrative authorities. All acts of
administrative authorities will come under the power of judicial review. Court can check all
administrative works on the certain grounds. Court has also a limited power to control
administrative actions. When any matter rise, which cannot be checked by the court it can be
checked by the administrative authorities.1

Meaning and Definition of Administrative Discretion

1
http://www.srjis.com/pages/pdfFiles/146857561110.%20RAJESH%20KUMAR.pdf?cv=1

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The phrase administrative discretion applies to two terms: administrative and discretion. It
implies discretion that is used in their roles by administration. First of all, we will discuss
discretion rather than point out administrative discretion. Discretion implies control of
judgement. The ability to do something according to their minds and wisdom, in other words.
Every individual has discretion over their property that they can donate, move and sell. It is his
discretion to write a will if he wishes his property to go for his inheritance. He can sell it if he
does not want to give his estate to his heritage. No one at his discretion, may intervene. Person
discretion and institutional discretion are distinct. There is no limit to individual discretion. But
administrative discretion implies that within the specified choices, they have discretion.

They are not free to take the decision as an individual; they can take decision only within the
limits which is provided by legislative. Even court also exercises the power of discretion, when
they punish to someone. Discretion means choose an option from the given options on the basis
of reason and argument it must not be based on individual will. Lord Cock, ―discretion is a
science to understand the difference between truth - untruth, right – wrong and reasonable &
unreasonable. They must not do their work under the influence of personal interest and to fulfill
own will.‖ Mr. Justice Frankfurter said, ―Discretion without a criterion of its exercise is
authorization of arbitrariness.‖1 It means discretion is choosing one option from amongst
alternatives. These alternatives must be based on reasons and justice not according to personal
will. This exercise must not be capricious, blurred and bizarre; it must be legal and regular.2

Historical Background- Administrative discretion is also known as, Public Interest, Public
purpose, Fair, Fit, Prejudicial to public safety and security, Satisfaction, Belief, Efficient,
Expedient, Proper, sufficient, and their opposites. Administrative discretion is a big problem
from the beginning time. It has proved that any welfare government cannot do their work
without discretionary powers of administrative authorities. It is not compulsory only to improve
the powers of administrative discretion. But it is compulsory because no one know about future
so any certain law may not enact for the future. But it is also truth that an absolute discretion
may become a cruel owner. Lord Aitkin, according to English jurisprudence any member of
executive may not interfere with the property and liberty without this condition that he will also
express the legality of his act before the court. Administrative actions are either ministerial or

2
Ibid

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discretionary. A ministerial action is one where the authorities have a duty to do a thing in a
particular way. Such actions, however, are exceptional. In most administrative actions, the
administrative authorities have the power either to act or not to act or to act in one way or the
other. This power to act or not to act or to act in one way or the other is called discretionary
power. Discretion is the power to decide or act according to one’s judgment. Whenever the word
may use by legislation before explain the administrative powers. The word may indicate
discretionary powers. In other words we can say freedom of authority. Professor Dicey criticized
it he thought that discretion is the source of inequality, discrimination and arbitrary action. It is a
clear cut violation of rule of law. With the effect of socio economic typical problems which rise
suddenly, it is faced by administration. So the scope of ministerial powers is shrinking and the
scope of discretionary powers is increased. It has been experienced that a government which has
only ministerial powers are rigid and dormant. So administrative officers have required the
power to choose, which powers, how and when they will exercise their powers. Main reason is
behind these problems; administrative authorities have faced such tuff problems e.g.
investigation of facts and choose the facts. Therefore the modern concept is this; lots of
discretionary powers are conferred to administration. It is mentioned in a statute that government
may form rules to fulfill the object of respective act, when they have need. With the effect of this
the discretionary power to make rules and choose the time and place to enforce those rules is
conferred to government by the legislative. Legislative do not direct that which rules will make.

Reasons behind the Development of Discretionary Powers- There are many reasons behind
the development of the power of administrative discretion. Some reasons are given blow---

1- In present time administration face difficult and different- different problems which cannot
solved by a single rule.

2- Most of those problems are new and rise first time, so a general rule cannot apply against
those problems because they don’t have sufficient experience.

3- It is not possible always anticipate to all problems, but when these problems rise and cannot
be solved according to circumstances than administrative authorities must be solved it.

4- Every problem is based on a different circumstance, if we will apply a rule to all it can be
cause of injustice.

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Administrative authorities can exercise their powers according to their wisdom and
circumstances. They can make and exercise various rules to solve the problem which are rise
suddenly. But when administration will solved every problem and exercise different – different
rules in those problems. It may become the reason of many difficulties, some are given blow—

1- No one may know which rule will be exercised in his matter.

2- It will be the clear cut violation of article- 14, Right to Equality, because in every matter of
same nature will be deal with different rules.

3- It may be possible that administrative discretion can be misused by administrative authorities.

A general rule must be preferred on the basis of the above discussion by administrative
authorities. Equality must be practised in their work whenever possible by administrative
authorities. Not only will it become a source of administrative abuse if it is not sustained, but it
may also struggle to preserve public confidence. When administrative authority should be
exercised, they must care what laws have been exercised in similar matters, otherwise
discrimination can occur and create several barriers to inclusive development.3

Administrative Discretion in Indian System

India has also adopted the concept of welfare state so it was necessary conferred the
discretionary powers to administration because it was only one body which can do all works to
get the aim of welfare concept. After adopting this concept government participated and
interfered in all work which was done by public. Now state thinks about the development of both
public and state. Before it state was think about only state and do the ministerial functions. It did
not have any interest public matters. Now the state starts to think about public and their
facilities, so state imposed the burden of all responsibilities on the administration. But without
discretionary power it was not possible. Administrative officers felt the need the power to take
instant decision. Without it they are unable to do something. So state conferred discretionary
powers to them. No modern government, however, can function without the grant of
discretionary power to administrative authorities. Whether or not an action is required depends
upon the happening of certain events or the arising of certain situations that cannot be
anticipated. They have to be determined from time to time and the administrator has to respond
3
Ibid

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by using the power given to her. What is to be done if a riot breaks out? What is to be done if an
essential commodity becomes scarce and suddenly goes out of market? Some actions depend
upon an assessment of the situation by administrative authorities. Expressions such as if he is of
the opinion or if he is satisfied or if he has reasonable grounds to believe vest power in the
authority to act on framing an opinion or being satisfied that the action is necessary. All such
actions are discretionary. Supreme Court had held that in the respect of discretionary power
given under statute to administration. It is expected that the use of discretionary powers would
be based on fair, Just and reasonableness, it must not be based on individual interest or will. It
must not be doubtful, arbitrary and imaginary. It must be under within the limits, which is
expected with a genuine person.

Administrative Discretion and Indian Constitution

Any law, if passed by a competent legislature, will not be challenged on the grounds of supposed
mala fide intentions or unexplained motives. If the executive is granted discretion under some
statute, it must place certain restrictions on the exercise of its discretion. In our Constitution,
there are certain clauses that apply to discretion. The supreme executive is the President of India.
He wielded a great deal of discretionary power. If he is satisfied that some condition has been
posed under article 352, he can impose a national emergency. He has the right to pass and
execute decrees. He may dissolve Lok Sabha, unless there is a majority of any faction. He has
the discretion in whose will the government is called upon to shape. It also has the right pursuant
to Articles 72 and 161 to grant pardon or suspension of sentence to persons convicted of
offences by a court of law. Under article 356, he can also rule presidentially over a territory. But
all these forces are subject to certain constraints. These are not arbitrary nature. Even judiciary
has also exercised some discretion, when judges punished to guilty person they have discretion
where it is mentioned imprisonment or fine or both, they can convict with any sanction.

Administrative Discretion and Fundamental Rights

Fundamental rights control the executive and legislative powers of the government. And it has
also the control over the administrative discretion. No Law may provide administrative finality,
because court has jurisdiction to check the administrative discretion. If discretion is against
fundamental rights it must be void and declared unconstitutional by the court. Court will focus
on some protective principles when it may be necessary during exercise discretionary power in
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respect of fundamental rights. Discretion can be controlled in a limited jurisdiction with the
effect of Fundamental rights. Court has also time to time discus on the legality of such laws,
which provide discretionary power. To fulfill this object court see the summary and making
procedure of such law. If court finds these laws against constitution, it will be declared
unconstitutional. Administration cannot violate article 14 & 19 when they will exercise
discretionary powers.”

Under Article 14

Article 14 certifications to each individual correspondence under the watchful eye of law or
equivalent insurance of laws, It denounces segregation; it prohibits class enactment, but allows
for grouping based on clear differences, having a reasonable association with the protest that the
referred to Act seemed to be achieving. In separate cases, the Law was tested on the basis that it
had presented a broad variety of optional powers to the regulatory expert for arbitrary selection
of persons or questions and violated Article 14 along these lines. In deciding on the legitimacy
of such a statute, the Court shall examine whether the statute has laid down any rule or strategy
for directing the Government's attentive activity in the matter of determination or character
development. In the event that it provides no guidance to the practise of prudence in the matter
of decision or grouping, the courts will strike down the law. The court won't endure the
assignment of uncontrolled power in the hands of the Executive to such a degree as to empower
it to separate.4

Under Article 19

Article 19 ensures certain opportunities to the nationals of India, yet they are not supreme.
Sensible confinements can be forced on these flexibilities under the specialist of law. They can't
be fought only on official activity. For the legal audit, the sensitivity of the confines is available.
Likewise, authoritative watchfulness will harass these openings. Such cases can be discussed
below the Dramatic Performance Act, which allowed the immediate magistrate to prevent open
emotional execution of a disgraceful or defamatory sort, stimulating or responsible for
energising emotions, irritations against the last authorised to determine if a particular play was
hostile under the Act. There was no agreement to audit his preference, or to control the expense

4
https://acadpubl.eu/hub/2018-120-5/2/174.pdf?cv=1

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of an opportunity, for the wrongful meeting to make a representation against the prohibitive
order, or for the official to make a move under an undertaking.

Controls over the Administrative Discretion

“It has universally admitted that discretionary powers have become the need of the day. A
question now arises as to how it can be regulated. Since it may be a violation of basic public
rights. With two forms, first judicial and other one is none judicial, it can be control. Two
procedure may be make against administration departmental (administrative) and judicial if they
abused fundamental rights and misused their discretion. There are so many means of regulating
it. We must have certain guidelines that are mandatory for that authority to exercise discretion.
Discretion must be systematic and minimal. If in order to regulate discretion, law fails to
maintain certain requirements in that statute, such standards must be incorporated by
administration with the aid of delegated legislation. It has to be carefully monitored. Control
may be carried out by the judiciary and other authorities, e.g. C.B.I., Lokpal and C.V.C. It is
more reliable to have judicial power. Judicial oversight can protect people from arbitrary and
exploitative actions. Now lots of principles have been developed to control discretion by the
court. Judiciary must concentrate on two points first it should be direct to legislative that they do
not confer wide and unlimited discretion to executive. And other is that every discretionary act
must be come under the power of judicial review. It can be determined that every administrative
authority did their work according to law and within the limits of their jurisdiction. Judiciary
plays a good role to control it.

Judicial control over administrative discretionary powers

England- parliament is sovereign in England so no statute can be checked by judiciary on any

ground. Court does not have the power of judicial review against any statute. But court can
control administrative discretion on certain grounds, e.g. ultra- vires and abuse of discretion.

U. S. A. - U.S.A. is also followed the concept of judicial review as India. Both of countries are
implement similar rule judiciary cannot imposed their personal view instead of discretion. For
the proper application of the Rule of Law, there must be power. According to the rule of law,
administrative authority must be exercised and not the rule of the person. If the government is

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granted absolute freedom to exercise its job, it may be a tyrant. So, managerial discretion needs
to be regulated.

Limits of administrative discretion-

It may be regulated by the court on some grounds. No discretion of any sort can be absolute.
There are certain constraints on it and a blow is offered to some of those.

1- Discretion must be used by respective authority which was authorized for it, and with similar
motive.

2- Delegates cannot delegate his powers to other person it means sub delegation is
unconstitutional. When it is not mentioned in parent act. Unless it is mentioned in that act, under
which these powers are provide.

3- Any authorized person cannot be made incompetent himself with the use of permanent rules.
It means no one can be waived their liabilities.

4- It must be used for the public welfare. It must not ultra- vires. If any procedure is given, it
must be followed. If procedure is not mentioned then a reasonable process must be follow. If
administrative authorities are failed, court can declare unconstitutional their work.

5- When it will exercise officer must be used his mind, he should not behave like a machine.

6- Discretion must be used in the respect of relevant considerations.

7- Discretion must be revoked on the ground of mala-fide intention.

Court may check administrative authorities on above grounds. It means discretion has not
finality. It can be controlled by court.

Administrative Discretion and Role of Judiciary

The court has now established a number of new standards to govern discretion these days. Such
reasons are effective in controlling discretion. These concepts are ultra-vire doctrine, misuse of
administrative discretion, inappropriate intent, irrelevant consideration, malice,
unreasonableness, procedural breach, arbitrary use of discretion, and administrative discretion.
In the case of Ram Manohar Lohia v. State of Bihar, under the defence of India rules, the

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authority was empowered to detain a person to prevent sub version of Public order. The
petitioner was detained with the view to prevent him from acting in a manner prejudicial to the
maintenance of Law and order. The court set aside order of detention. In the opinion of the
court, the concept of law and order was wider than the concept of public order. Supreme Court
in the case Nalini v. District Magistrate has held that under the relevant statute power was
conferred on the authority to rehabilitate persons displaced from Pakistan as a result of
communal violence but it was exercised to accommodate a person who had come from Pakistan
on a medical leave. The order was set aside. 5

Maneka Gandhi v. Union of India, the supreme court held that an order passed under section
10 (3) c of the passport act, 1967, empowering for impounding a passport, could be declared bad
under article, 19 (1) (a) & (g) if it imposes unreasonable restrictions on the freedoms covered by
the two clauses.

The court has held in Ajay Hasia v. Khalid Majid that allocation of 33.3% of the total marks to
oral interview is arbitrary as there are many deficiencies in such a test and it leads to
deterioration in moral values. In the opinion of the court, not more than 15% will be allotted to
viva voce and that the test should be properly conducted. Justice P. N. Bhagwati stated that, ―it
is well steeled rule of administrative law that an executive authority must be rigorously held to
the standards by which it professes its action to be judged and it must scrupulously observe those
standards on pain of invalidation of an act in violation of them.

In Air India v. Nargesh Meerza, the question was on the validity of service regulation framed
by air India providing for the termination of services of an airhostess on her first pregnancy.
Supreme Court held that the regulation to be extremely arbitrary, unreasonable, abhorrent to the
notions of a civilized society and interfering with the ordinary course of human nature. It is not a
disability, but one of the natural consequences of marriage and immutable characteristic of
married life. So it has proved that administrative discretion is need of the day and its control is
the necessity. Judicial review is a good weapon to control it. So it is another dimension of
judicial review of administrative discretion. Under article 14, no one can be discriminate. Article
14 illegalizes any discrimination or arbitrary action in the actual exercise of any discretionary
power.”

5
Supra Note 1.

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 “Discretion is the power usually given by the statute to make a choice among competitive
considerations. Lord Halsbury6 analyzing the meaning of administrative discretion has
observed:

Discretion means when it is said that something is to be done within the discretion of authorities
that something is to be done according to private opinion Rook‘s case, according to law and not
humor. It was to be not arbitrary vague and fanciful but legal and regular. Prof. Freund has given
a very good analysis of administrative discretion. He says: When we speak of administrative
discretion, we mean that a determination may be reached, in part at least, upon the basis of
considerations not entirely susceptible of proof or disproof. A statute confers discretion when it
refers an official the use of his power to beliefs, expectations, or tendencies instead of facts, or to
such terms as adequate, advisable, appropriate, beneficial, fair, fit, necessary, practical, proper,
reasonable, reputable, safe, sufficient, wholesome or other opposites‘. These lack the degree of
certainty belonging even to such difficult concepts as fraud and indiscrimination or monopoly.
They involve matter of degree or an appeal to judgment. The discretion enlarges as the element
of future probability preponderates over that of present conditions; it contracts wherein certain
styles of cases equally tend to become standardize, as in matters of safety; on the other hand,
certain applications to the concept of immorality, fraud, restraint of trade, discrimination or
monopoly are so controversial as to operate practically like matter of discretion. In other words,
there is no sharp line between questions of discretion on the one hand, and questions of fact on
the other; and where an administrative fact is permitted to be conclusive, it will usually be a case
on the border line between fact and discretion. It may be practically convenient to say that
discretion includes the case in which the ascertainment of fact is legitimately left to
administrative determination.

Discretionary powers – a need of modern administrative law

In modern times, the Legislatures were compelled to confer vast discretionary powers on the
administration because it is not always possible to lay down standards or norms for the exercise
of administrative power. Administration is always asked to solve a problem, whenever it arises,
for the Legislature is not sure how it can be solved. It is only administration which is deemed
competent to do and, therefore, power is left with it in rather broad terms. The conferment power

6
http://hdl.handle.net/10603/130521

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assumes that the power should be exercised independently by the authority concerned according
to his own assessment. It imposes a duty to do so, subject, of course, to the limitation provided
by law and of being within the ambit of the power. The administrative authorities vested with
such powers should, therefore, act on their own record; they should not be guided by the
direction or instruction their superiors in the discharge of the power. The Supreme Court in U.P.
State Road Transport Corp. v Mohd. Ismail7, rightly observed that the discretion allowed by
the statute to the holder of an office is intended to be exercised ―according to the rules of
reason and justice, not according to private opinion, according to law and not humor, it is to be,
not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the
limit, to which an honest man competent to the discharge of his office ought to confine himself.

Discretionary power may be conferred generally or with a duty attached to the exercise of that
power, where the power and duty to exercise it go together, the authority empowered is under a
statutory liability to exercise its discretionary power and if it refused to do so, the court of law
may compel its exercise, In England the refusal to exercise discretionary power, where it
imposes a duty to exercise it, entails a liability to damages, no such law has developed in India
till now, whereby the Government could be held liable for damages caused to any individual on
account of refusal to perform it or performing it negligently.

The court may compel the authority to exercise their discretion where they have been expressly
invested with such power; this exercise of discretion by the authority on which such discretion is
conferred must not be lightly interfered with. There is an essential distinction between refusal to
exercise the discretion and manner of its exercise. If the authority fails to discharge his duty by
refusing to exercise his discretion when facts calling for its exercise exist, the court will compel
him to do so, if the authority concerned exercises his discretion honestly and in the spirit of the
statute, no mandamus will be issued directing him to exercise his discretion in a particular way.

How far statutory authority can be compelled to exercise its statutory discretionary duty has been
answered by the Supreme Court in Ratlam Municipality v. Vardhichand8. In the present case,
the residents of certain localities of Ratlam Municipality tormented by stench and stink caused
by open drains and public excretion by nearby slum dwellers moved the Municipality to do its

7
1991 AIR SC 1099
8
AIR 1980 SC 1622

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duty towards the members of the public by removing the insanitation. After they failed, they
moved the Magistrate under Section 133 of Cr. P.C. to require the Municipality to abate the
nuisance. Ultimately the case came up before the Supreme Court can compel a statutory question
was whether by affirmative action a court can compel a statutory body to carry out its duty to the
community by constructing sanitation facilities at great cost and on a time bound sanitation. The
court rejecting the plea of financial disability of the Municipality held that the court can compel
the statutory body to perform its discretionary duty and thus the Municipality was directed to
remove the nuisance with in a period of six months from the date of judgment. The court also
directed the Magistrate for prosecuting the Municipal Officers in case they fail to discharge their
duty of removing nuisance. It was observed by the court that the law will relentlessly be
enforced and the plea of poor finance will be poor alibi when people in misery try for justice.
The dynamics of the judicial process has a new enforcement dimension not merely through some
of the provisions of the Criminal Procedure Code but also through tort consciousness. The
officers in charge and even the elected representatives will have to face the penalty of the law if
what the Constitution and follow up legislation direct them to do are defied or denied
wrongfully.

In U.P. State Road Transport Cop. V. Mohd. Ismail 9, the Court ruled that the statutory
discretion cannot be fettered by self-created rules or policy. Although it is open to an authority to
which discretion has been entrusted to lay down the norms or rules to regulate exercise of
discretion, it cannot, however, deny itself the discretion which the statute requires it to exercise
in individual cases. There may, however be case where a statute confers upon any authority a
general discretion to take an action ‗if certain conditions as specified in the statute are fulfilled‘
in a permissive language, the authority is competent to refuse to exercise the discretionary power
even though statutory conditions are fulfilled. In Veerappa v. Raman, the court held that a
transport authority under the Motor Vehicle Act 1939 has general discretion to refuse even
where an applicant complies with the conditions specified in Section 12 of the Act.

There is a distinction between refusal to exercise the direction and the manner of its exercise.
The question for determination sometimes may be, whether the authority is obligated to exercise
its power, but the question as to how the power is to be determined is not open to judicial

9
AIR 1991 SC 1097

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scrutiny. The courts do not probe into the merits of a case. It is true that where the authority has
not acted according to law, the courts would no doubt quash the administrative action but it
could not direct the authority to act in a particular manner. Where the transport authority issued a
permit for one year while the statute required renewals for the permit for a period between three
to five years, but it could not specify the period itself, it is open to the Supreme Court to direct
the authority to carry out the duty in accordance with law. It was rightly observed by Mr.
Kanpur, J., that:

The power of the Supreme Court only extends to quashing and not to substituting an order in
place of what an administrative agency has done or to direct what it should do. No order
commanding the Regional Transport Authority as to what order it should pass and what period
be substituted in place of the order passed by the Supreme Court and all that this court can do is
to quash the order and leave it to the Regional Transport Authority to reconsider the matter and
exercise its discretion keeping in view the law as laid down by this Court. However , in a case
where the area of discretion has been delimited to such an extent that authority concerned could
take only one decision under it, the Court may specifically direct the authority to act in that
particular way.”

CONCLUSION

The amazing ground has been gained by substantive law administering legal surveys of
authoritative circumspection. Any activity of attentiveness without a sign of the premise of the
optional demonstration is probably going to be held a mishandle of energy.(Denis James
Galligan 1990)(Denis James Galligan 1990) All things considered, substantive law, in any case,
palatable, isn't sufficient. Since the position remains that claims of malafides or energy
mishandling must be specifically identified, argued and demonstrated as some other truth by the
collection testing of an optional demonstration bearing the weight of verification, insignificant
declaration of a directly under substantive law will not take the matter exceptionally far. A
meeting must be empowered to set up the reality of his claims against the official as a question
of method. This is the legitimization of the strategy in this work that we have received.
Nonetheless, substantial legislation, but satisfactory, is not enough. So lengthy as the position
stays that allegations of malafides or abuse of energy should be specifically particularized,
pleaded and proved as some other reality by the birthday party tough a discretionary act, who

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bears the burden of proof, mere assertion of a right beneath major law will now not take the
depend very some distance. As a count number of procedure a celebration have to be enabled to
establish the fact of his allegations towards the govt.

Right to Privacy

“Through the early time technology is considered as the driving vigor of advancement. From
movable type, to television, to the internet, technology has been embraced and incorporated into
our daily lives. The digital revolution has altered conceptions of time and distance. It has shaped
a wealth of information that is available at the hit of a key. In the 21st century a rapid growth in
innovations and development in the technology can be easily witnessed. With this enormous
technological growth, the internet has steadily and slowly become an unavoidable part of one's
life, and almost every individual is directly or indirectly linked to this enormous network. As the
world advances day by day with the advent of technology, the number of cases related to
infringement of privacy is rising. In order to attack crimes, technology drives privacy. Crime,
however also pushes technology, creating a vicious loop. No intruder could easily enter any
stranger's life without technology. Conversely, the law enforcers will escape without the
technology of the same perpetrator. So, the question is whether technology shields the privacy of
people, or does it reveal one's entire life?

Acknowledging the fact that being the wildest increasing crime of these days, it is projected that
in every 79 seconds an identity is being stolen. This is not just the only case where privacy is
infringed by the use of technology. There are many more issues in the current era of technology
relating to the privacy invasion.10

“Privacy” is a notoriously difficult concept to define and cannot be understood as a static and
one-dimensional concept. It can only be construed as a group of rights. For understanding the
concept of privacy invasion and impact of technology on privacy it is important to know what
does “Right to Privacy” means. According to Black’s Law Dictionary ‘Right to Privacy’ means
“the condition or state of being free from public attention to intrusion into or interference with
one’s acts or decisions” which concludes to the right to be let alone; the right of a person to be

10
https://ijldai.thelawbrigade.com/wp-content/uploads/2018/08/Prachi-Aqib.pdf?cv=1

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free from any unwarranted publicity; the right to live Without any unwarranted interference by
the public in matters with which the public is not necessarily concerned. The right to privacy is
derived from an English Common Law maxim which asserts that “Every man’s house is his
castle”. The existence of a “private” element in an individual’s life has also been recognized by
Jeremy Bentham.11

Privacy has also been considered a “type of social isolation; “right against unwarranted intrusion
by the state”; a “right against the intrusion on an individual’s personal life or affairs” but
presently right to privacy has become a burning issue regarding to concerns raised against
government’s initiatives to collect personal data from citizens. Though privacy is not a
fundamental right specifically mentioned in the Constitution of India but it is now seen as an
ingredient of personal liberty. Various issues are now being raised for the government’s
initiatives such as Unique Identification Authority of India (UIDAI), Digital Locker, and other
digital services through Digital India Scheme. The right to privacy has been developed by the
Supreme Court over a period of time. With the expansive interpretation of the phrase “personal
liberty” this right has been read into Article 21 of the Indian Constitution. The expression
"personal liberty'' includes the right of privacy also. However it cannot be treated as an absolute
right, as some limitations on this right have been imposed.”

BEFORE 1975: RIGHT TO PRIVACY NOT EXPRESSELY RECOGNISED

Right to privacy has not been defined as a Fundamental Right under Constitution of India. In
1954, the Supreme Court in M. P. Sharma v. Satish Chandra, rejected the contention that there
exists a right to privacy under Article 20(3)21, due to the absence of any provision analogous to
the Fourth Amendment of the US Constitution.

The scope of this right first evolved in Kharak Singh v. The State of Uttar Pradesh & others,
which was concerned with the validity of certain regulations that permitted surveillance of
suspects. This right of privacy is considered as the right to be let alone. In the context of
surveillance, it has been held that surveillance, if intrusive and seriously encroaches on the
privacy of citizen, can infringe the freedom of movement, guaranteed by Articles 19(1)(d) and

11

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Article 21 of Indian Constitution. Although, the Supreme Court began to accept certain points
of the minority view, the right to privacy was still waiting for its place in Indian constitutional
jurisprudence.12

DURING 1975-2000: RIGHT TO PRIVACY IMPLICIT IN ARTICLE 21 OF INDIAN

CONSTITUTION

In Govind v. State of Madhya Pradesh, Justice Mathew accepted that, the right to privacy as an
emanation from Art. 19(1)(a), (d) and 21, but right to privacy is not absolute right. “The
fundamental rights clearly guaranteed to a citizen have penumbral regions and that the right to
privacy is itself a fundamental right, the fundamental right must be question to restriction on the
very root of compelling public interest”. Surveillance by which the domiciliary visits are not
always be an unreasoning invasion in privacy of a person owing to the character and antecedents
of the person subjected to surveillance as also the objects and limitation in which the
surveillance is setup. The privacy right deals only with ‘persons not places’. In this decision,
Justice Mathew taking the US jurisprudence into consideration, observed that the right to
privacy exists within the penumbral zones of the Fundamental rights28 explicitly guaranteed
under Part III of the Constitution.

In another case Smt. Maneka Gandhi v. Union of India & Anr, the Supreme Court held that
‘personal liberty’ under article 21 shelters a variety of rights and some have status of
fundamental rights and given additional protection under Article19 of the Indian Constitution.
The Triple Test for any law intrusive with personal liberty:

(1) It must prescribe a procedure; (2) the procedure must endure the test of one or more of the
fundamental rights conferred under Article 19 of Indian Constitution which may be applicable in
a given situation and (3) It must withstand test of Article 14.

The law and procedure authorizing interference with personal liberty and right of privacy must
also be right just and fair and not arbitrary, fanciful or oppressive.13

12
https://www.eff.org/deeplinks/2017/08/indias-supreme-court-upholds-right-privacy-fundamental-right-and-its-
about-time
13
http://www.legalservicesindia.com/law/article/10/28/Right-To-Privacy

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In P.U.C.L. v. Union of India, the Supreme Court of India, while laying down the standards for
telephone wire tapping had observed that the right to privacy is an integral part of the
fundamental right to life enshrined under Article 21 of the Constitution and this right shall be
available only against the state. Prior Justice P.N Bhagawati had also observed that the right to
life and personal liberty also includes the right to live with human dignity and all that goes along
with it, namely, the bare necessaries of life such as proper nutrition, clothing and shelter and
facilities for reading, writing and expressing oneself in diverse forms, freely moving about and
mixing with fellow human beings. The actions which may damage individual’s dignity will
constitute the violation of his right to live and it would have to be in accordance with reasonable,
fair and just procedure recognized by the law which stands the test of other fundamental rights.”
Hence, one could observe from the above cases that the Supreme Court had acknowledged that
the human dignity implies expressing oneself in diverse forms and acknowledges the worth of
all individuals in the society.

2000 TO PRESENT: RECGONITION AND SAFEGUARDSALONG WITH

REASONABLE RESTRICTIONS TO THE RIGHT TO PRIVACY

The supreme court held in Mr X v. Hospital Z that the right to privacy in the relationship
between the doctor and the patient is not absolute. The right to a healthy life would excuse the
violation of another person's confidentiality or right to privacy.

In another case Directorate of Revenue v. Mohd Nisar Holla, the court held that a person who
does not violate any law will be entitled to enjoy his life and liberty which include the right not
to be disturbed. Under article 21, the right to be left alone is recognised to be a right.

In the latest judgement in the K.S. case, (Retd.) Puttaswamy and Ors. The apex court of India
held, v. Union of India (UOI) and Ors, that if the observations made in M.P. Ors and Sharma. v.
Satish Chandra and Ors.and Kharak Singh v. U.P. State. Uh, and Ors. The fundamental rights
guaranteed under the Constitution of India and more specifically, the right to freedom under
Article 21 of the Indian Constitution will be deprived vigour and vitality, are read literally and
putatively as law. Institutional integrity and judicial discipline40 requires that assertion made by
superior benches of this Court cannot be overlooked by the smaller benches without

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appropriately clearing up the reasons for not following the decrees pronounced by the larger
benches. It is better that the ratio decidendi in the two cases is scrutinized and the jurisprudential
correctness of the subsequent decisions of this Court where the privacy right which is asserted or
referred be examined and authoritatively decided by a bench of appropriate strength.

TECHNOLOGY AS A THREAT TO PRIVACY

We are presently experiencing the so-called technological age which can be described as an era
were economic activities and other are mainly data based. This is mainly a result of development
and use of technology. The chief features of this era can be abridged as a rise in the number of
knowledge workers, a world that has become more open in the sense of communication between
national as well as at the international level.

This move towards the technological era brings new ethical and juridical difficulties which are
mainly related to problems such as the right of access to information, the right of privacy which
is endangered, the emphasis on the free movement of information, and the safety of the
economic interest of the owners of intellectual property.

Prior to the use of technology in the processing of personal and private information can be dealt
with, it is important to briefly pay attention to the concept technology. For the purpose of this
paper the definition of Van Brakel will be used, namely: “the gathering, organizing, storage and
distribution of information in various formats by means of computer and telecommunications
techniques based on micro-electronics.”

In the present era because of the majority is directly linked with the technology and it is
becoming more intrusive to our personal lives in such circumstances the following below
discussed are the foremost challenges which have been traced out as of biggest concern to
privacy in the recent times.

 TELEPHONE TAPPING
 DATA PROTECTION IN TELECOM SECTOR
 REAL TIME TRACKING
 UIDAI

ISSUES TO BE CONSIDERED

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Following below given are some of the issues that the Indian Legislature must keep in mind
while making privacy laws.

 Protection from illegal and arbitrary interference

 Protection of Medical Records
 Protection of financial records
 Preventing excessive monitoring of employees by the employer

CONCLUSION

The word "privacy" has been defined as the individual's right to restrict the degree to which he
wishes to share with others about himself. In several nations, their people have not been
specifically granted the right to privacy, but rather discovered through judicial interpretations.
The constitutional makers may not have envisaged the said right in the Constitution, but the
technology we are actually witnessing is much different and advanced from the lives of
generations who have drawn up the constitution. So for the newly emerging issues, there is a
need for adjustment in the method of resolution and solutions must undergo a re-engineering
process.

It can also be argued that the use of technology in the processing of information raises serious
concerns about the right to privacy of an individual. Therefore, practical guidelines must be
formulated according to the norms of equality, reality and human rights in the handling of these
problems.

Bibliography

 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1465519
 https://blog-iacl-aidc.org/blog/2018/5/17/administrative-discretion-a-comparative-
analysis

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  http://www.legalserviceindia.com/legal/article-67-administrative-powers-and-
discretionary-powers.html
 http://www.legalservicesindia.com/article/1630/Right-To-Privacy-Under-Article-21-and-
the-Related-Conflicts.html

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