ADMIN LAW

DURGA DAS BASU, ADMINISTRATIVE LAW. SEVENTH ED.

Indisputably, there exists a presumption as regards the constitutionality of a statute. Rule of

presumption in favour of constitutionality, however, only shifts the burden of proof and rests
it on the shoulders of the person who attacks it. It is for that person to show that there has
been a clear transgression of constitutional principles.1 (Govt)

But this rule is subject to the limitation that it is operative only till the time it becomes
clear and beyond reasonable doubt that the legislature has crossed its limits.2 (Pet)

In pronouncing on the constitutional validity of a statute, the court is not concerned with the
wisdom or unwisdom, the justice or injustice of the law. If that which is passed into law is
within the scope of power conferred on a legislature and violates no restrictions on that
power, the law must be upheld whatever a court may think of it.3 (Govt)

Whenever both the decision-making process and the decision taken are based on
irrelevant facts, while ignoring relevant considerations, such an action can normally
be termed as "arbitrary". Where the process of decision making is followed but proper
reasoning is not recorded for arriving at a conclusion, the action may still fall in the
category of arbitrariness.4 (govt)

Rationality, reasonableness, objectivity and application of mind are some of the

prerequisites of proper decision making. The concept of transparency in the decision-
making process of the State has also become an essential part of our administrative law. 5
(govt)

Except where legislation is required to affect private rights, Government is also free to make
changes in its policy, without any formality.67

1
Book, pg 60.
2
Book, pg 60.
3
Karnataka Bank Ltd. v State, (2008)2 S.C.C. 254.
4
Book, pg.275.
5
Book, pg. 275.
6
State of U.P. v Vijay, A. 1982 S.C. 1234(para. 3)
7
State of T.N. v Hind Stone, A. 1981 S.C. 711 (para. 9)]. 
To the foregoing general rule, exceptions have been admitted by the Court on the following
grounds (a) Where the fundamental right of an individual is affected 891011, because Art. 12 hits
any governmental action statutory or non-statutory; or some other constitutional provision is
violated12
(b) Where the policy is against 'public interest'.13
(C) Where some principles of natural justice are violated.14
(d) Where the administrative decision is arbitrary, unreasonable,
mala fide.1516
(e) Where it involves breach of promissory estoppel17 or
legitimate expectation.18
.
The doctrine of good governance requires the Government to rise above their political
interest and act only in public interest and for welfare of its people.19

In Council of Civil Service Unions v Minister for Civil Service, 20 the House of Lords
observed as follows:
The decision on whether the requirements of national security outweigh the duty of fairness
in any particular case for the Government and not for the courts; the Government alone has
access to the necessary information, and in any event the judicial process is unsuitable for
reaching decisions on national security. But if the decision is successfully challenged on the
ground that it has been reached by a process which is unfair, then the Government is under an
obligation to produce evidence that the decision was in fact based on grounds of national
security." (Govt. Defence to born)

The Privy Council in Zamora,21 held as follows at A.C. p. 107:

"Those who are responsible for the national security must be the sole Judges of what the
national security requires. It would be obviously undesirable that such matters should be
made the subject of evidence in a court of law or otherwise discussed in public." (Govt.
Defence to born)

In a situation of national security, a party cannot insist for the strict observance of the
principles of natural justice. Once the State is of the stand that the issue involves national
security, the court shall not disclose the reason to the affected party.22 (Govt. Def to born)
8
State of Maharashtra v Lok Sikshan Sanstha, A. 1973 S.C. 588 (para. 9).
9
Bishamber v State of U.P., A. 1982 S.C.33
10
State of M.P. v Bharat, A. 1967 S.C. 1170
11
Kharak Singh v State of U.P., A. 1963 S.C. 1295 (paras. 19, 21-22, 36)
12
S.P. Gupta v Union of India, A. 1982 S.C. 149 (para. 45)].
13
Kasturi v State of J.&K., A. 1980 S.C. 1892 (para. 14)
14
State of Maharashtra v Lok Sikshan Sanstha, A. 1973 S.C 588 (para 9)
15
State of U.P. v Vijay, A. 1982 S.C. 1234 (para. 3)
16
State of T.N.v. Hind Stone, A. 1981 S.C. 711 (para. 9)
17
Union of India v Anglo-Afghan Agencies, A. 1968 S.C. 718
18
Narendra v Union of India, (1990) Supp. S.C.C. 440 (para. 106)
19
A. Abdul Farook v Municipal Council (2009)15 S.C.C. 351
20
1985 A.C. 374: (1984)3 All E.R. 395 (H.L.): (1984)3 WLR 1174
21
(1916)2 A.C. 77 (P.C.)
22
Ex-Army Men's Protection Services (P) Ltd. v Union of India (2014)5 S.C.C. 409
In all the modes of judicial review, thus, the jurisdiction of the court, whether in a declaratory
action23 or in a writ proceeding242526 is simply to set aside the unlawful order and not to
substitute its own decision for that of the statutory authority, for that would be exercising a
power of appeal where none exists.2728 (Pet.)

In exercising power of judicial review, the court cannot Interfere with the policy laid down by
the Government unless it appears to be plainly arbitrary or mala fide 29 or violative of
fundamental rights.30 (pet.)

Doctrine of proportionality and tests for proportionality. The principle of proportionality'

ordains that administrative measures must not be more drastic than is necessary for attaining
the desired result.31323334
Under the 'structured test there are four questions-
1. Whether the legislative objective is sufficiently important to justify limiting a fundamental
right.
2. Whether the measures designed to meet the legislative objective are rationally connected to
it.
3. Whether the means used to impair the right or freedom are no more than is necessary to
accomplish the objective. (This is the 'necessity question').
4. Whether a fair balance has been struck between the rights of the individual and the interest
of the community which is inherent in the whole of the Convention. (This is sometimes called
'narrow proportionality'). (Pet)

Legal fiction cannot be created by administrative law. When the order is passed by a statutory
authority ignoring the procedure prescribed in law or taking into consideration irrelevant or
extraneous matters not germane for decision, the order stands vitiated in law and as such, is
capable of being rectified by judicial review.35 (Pet.)

In Sharma Transport v Govt. of A.P.,36 the Supreme Court defined arbitrariness observing
that a party has to satisfy that the action was not reasonable and was manifestly arbitrary. The
expression "arbitrarily" means, act done in an unreasonable manner, as fixed or done
capriciously or at pleasure without adequate determining principle, not founded in the nature
of things, non-rational, not done or acting according to reason or judgment, depending on the
will alone. (Pet)

23
Healey v Ministry of Health (1954)3 All ER 449 (CA)
24
R. v Nothumberland Compensation Appeal Tribunal (1952)1 All ER 122
25
Kochunni v State of Madras A. 1959 S.C. 725
26
Election Commr. v State of Haryana A. 1984 S.C. 1406
27
Healey v Ministry of Health (1954)3 All ER 449
28
CR. V Nothumberland Compensation Appeal Tribunal (1952)1 All ER 122
29
State of M.P. v Nandlal (1986)4 S.C.C.566
30
Narayanan v State of Karnataka (1994) Supp (1) S.C.C. 44
31
De Freitas v Permanent Secretary, Ministry of Agriculture (1999)1 AC 69
32
R v Home Secretary (2001)2 AC 532
33
Huang v Home Secretary (2007)2 AC 167
34
R v Home Secretary (2004)2 AC 368
35
V.C.,Banaras University v Shrikant (2006)11 S.C.C. 42
36
(2002)2 S.C.C. 188.
The Government is entitled to make pragmatic adjustments and policy decision which may
become necessary or called for under the prevalent peculiar circumstances. The court cannot
strike down a policy decision merely because it feels that another decision would have been
fairer or wiser or more scientific or logical.37 (Gov)

Legality of the policy, and not the wisdom or soundness of the policy, is the subject of
judicial review.38 (Govt.)

Policy matters of the Government are generally immune from judicial review, especially
when the said policy is taken on the basis of expert report. Even then there can be judicial
review when the larger interest of public has not been taken into account. This legal position
will appear from the following observations of the Supreme Court in Centre for Public
Interest Litigation v Union of India.39 (Govt.)

However, when it is clearly demonstrated that the policy framed by the State or its
agency/instrumentality and/or its implementation is contrary to public interest or is violative
of the constitutional principles, it is the duty of the court to exercise its jurisdiction in larger
public interest and reject the stock plea of the State that the scope of judicial review should
not be exceeded beyond the recognised parameters.40 (Pet.)

Court cannot enquire into public policy or investigate into questions of political
wisdom or pronounce upon motive of legislature in enacting a law which is otherwise within
its legislative competence.41 (Gov)

37
Netai Bag v State of W.B. (2000)8 S.C.C. 262
38
Directorate of Film Festivals v Gaurav Ashwin Jain (2007)4 S.C.C. 737
39
(2012)3 S.C.C. 1
40
Book pg 986.
41
Bhandara District Central Co-op. Bank Ltd. v State, A. 1993 SC 59