Discretionary Powers and Limitations

CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW AND GOVERNANCE

Submitted to- Dr. P. K. Mishra

Submitted by- SHIVAM KUMAR PANDEY

B.Sc. LLB (Sixth Semester)

CUSB1513115016

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 CONTENT

Sr No. Title Page No.

Acknowledgement
1. 3
Abstract
2. 4
Introduction
3. 5
Ministerial Functions
4. 7
Administrative Discretion
5. 9
Limitations to Administrative Discretion:
6. 13
Article 14 of the Constitution
Administrative Discretion and Judicial
7. 14
Review
Limitations to Administrative Discretion:
8. 16
Article 19 of the Constitution
Limitations to Administrative Discretion:
9. 19
Article 21 and 22 of the Constitution
Conclusion
10. 20
Bibliography
11. 22

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 ACKNOWLEDGEMENT
Firstly, I would like to express my sincere gratitude to my professor Dr. P.K. Mishra for
giving me this assignment and helping me acquire a comprehensive knowledge of
adminstrative law in our country.

I would like to thanks my classmates. I benefitted a lot from their discussion.

I would like to thank my university and its administration, library and computer center staff
for providing me with the infrastructure and a conductive environment to complete my
project.

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 Abstract
Discretion is a science or understanding to discern between falsity and truth, between right
and wrong, between shadows and substance, between equity and colourable glosses and
pretences, and not to do according to their wills and private affections.

With the abandonment of laissez faire and advent of the modern philosophy of a “welfare”
and “social service” state, the administrative organ, in practically every democratic country,
is performing more and more functions. The main tasks of the administrative organ are no
longer merely police or political; it performs vast regulatory and managerial functions.

There is a tendency in all democratic countries that legislation, conferring powers on the
executive is usually drafted in broad and general terms. It leaves large area of choice to the
administrator to apply the law to actual, specific and factual situations, that is, from case to
case. Reason for granting discretionary power to administrative agencies is because they
possess experience and specialization in a particular area.  This experience and
specialization helps agencies in making decisions in the agencies’ area of expertise.

The discretionary powers given to the officials’ includes the possibility of being misused and
exercised in an arbitrary manner. It becomes necessary to devise ways and means to
minimise the danger of absolute discretion, so that injustice is not done to any single
individual. It is not possible for this purpose to depend merely on the good sense of
administration itself to use its power properly. Courts have to play a major role in the
process of controlling the functioning of the administration. In this connection the
fundamental rights guaranteed by the Indian Constitution play a significant role.

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 Introduction

The administrative powers are of varied types. They range from such simple matters as
registration of births and deaths, to regulate of a business activity, acquiring property for a
public purpose and detaining a person on the subjective satisfaction of the executive. The
administrative powers are also include such important powers as of investigation, seizing or
destroying the property of an individual without hearing in the interest of public health, safety
and morality. The types of administrative powers are too numerous to be mentioned here.

The administration is conferred with discretionary powers to take decisions from case to case.
There is a tendency in all democratic countries that legislation, conferring powers on the
executive is usually drafted in broad and general terms; it leaves large area of choice to the
administrator to apply the law to actual, specific and factual situations, that is, from case to
case, and does not specify clearly the conditions and circumstances subject to which, and the
norms with reference to which the executive must use the powers conferred on it.

Due to the complexity of socio-economic conditions which the administration in modern

times has to contend with, the range of ministerial functions is very small and that of
discretionary functions much larger. Discretion is the all-pervading phenomenon of modern
age. Discretion is conferred in the area of rule-making or delegated legislation, e.g. when the
statutory formula says that the government may make rules which it thinks expedient to carry
out the purposes of the Act. The legislature hardly gives any guidance as to what rules are to
be made. Similarly, discretion is conferred on adjudicatory, and administrative authorities on,
a liberal basis, that is, the power is given to apply a vague statutory standard from case to
case. But this development is disquieting because, according to a well-known adage,
“absolute power corrupts absolutely”, and therefore, broad powers present possibilities of
being misused and exercised in an arbitrary manner.

Absolute discretion like corruption, marks the beginning of the end of liberty.” 1 It thus
becomes necessary to devise ways and means to minimise the danger of absolute discretion,
so that injustice is not done to any single individual. It is not possible for this purpose to
depend merely on the good sense of administration itself to use its power properly. Courts
have to play a major role in the process of controlling the functioning of the administration.

1
New York v. United State (1951) 342 US 882 at 884.

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In this connection the fundamental rights guaranteed by the Indian Constitution play a
significant role.

The judicial control mechanism of administrative discretion is exercised at two stages. First is
the stage of delegation of discretion. At this stage, the court may compel the legislature to
desist from conferring too broad discretionary powers. In India, the courts have sought to
spell out some limits on conferment of broad discretionary powers by invoking the
Fundamental Rights guaranteed by the constitution. The courts may function is one where the
law prescribes the duty to be performed by the administrative authority in certain and specific
terms leaving nothing to the discretion or judgment of the authority. Second is at the stage of
the exercise of discretion. There is the need to have some post-decisional review mechanism
to ensure that administrative authorities discharge their functions according to law and within
legal limits express or implied. To some extent, this important role is discharged by the
courts. The courts controls the exercise of discretion by the administration and for this
purpose have evolved several norms.

Today, the question of control of discretionary power is perhaps most crucial and critical
problem of the modern administrative law. Functions dischargeable by the administration
may either be “ministerial” or “discretionary".

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 Ministerial Functions

The word “ministerial’ is used to denote the party in office. A ministerial function is one
where the law prescribes the duty to be performed by the administrative authority in certain
and specific terms leaving nothing to the discretion or judgment of the authority, it does not
involve investigation into disputed facts or making of choices. The authority concerned acts
in strict obedience to the law which imposes on it a single and definite duty in respect of
which it has no choice.

Ministerial functions are exercised by taking active, often coercive measures and
administrative functions by meeting out policy and expediency with unfettered discretion 2.
Since an order of mandamus may be issued to compel the performance of a ministerial act
and since, moreover, wrongful refusal to carry out a ministerial duty may give rise to liability
in tort, it is often of practical importance to determine whether discretion is present in the
performance of a statutory function. An example of non-discretionary function is furnished
by section 35 of the Income-Tax Act, 1922. This provision stated that the Income tax officer
could rectify any mistake apparent from the record. The Supreme Court in Hirday Narain v.
Income Tax Officer3 rules that this provision did not give any discretion to the Income tax
officer to exercise or not to exercise the power to rectify. It was implicit in the nature of the
power that it would be exercised by the Income Tax Officer when a mistake apparent from
the record was brought to his notice by the concerned person. Even if the words used in the
statute are prima facie enabling, the courts will readily infer a duty to exercise power which is
invested in aid of enforcement of a right of a citizen.

However, the presence of a minor discretionary element is not enough to deter the courts
from characterizing a function as ministerial. Thus, the issue of a warrant for the non-
payment of taxes has been held to be a ministerial act (and therefore not reviewable by
certiorari) although the officer issuing the warrant had discretionary power to take
proceedings in the courts for recovery of the taxes4.

The term ministerial is sometimes used loosely to describe any act that is neither judicial nor
legislative. In this sense the term is used interchangeably with “executive" or
2
Gordon D.M., Administrative Tribunals and the Courts, (1933)49 LQR 94, 419.
3
AIR 1971 SC 33.
4
Metherington V. Security Export Co. (1924) A.C. 988.

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“administrative”. So, the functions of an assessment committee, the making of slum,
clearance and compulsory orders under housing legislature and the assessment of charges to
be imposed on the inhabitants of a district in a country have all been called ministerial,
although their most obvious characteristics is that they involve the exercise of discretionary
powers. This use of the term is misleading. However, here, the term has been used to refer to
the making of decisions, the issue of orders or the execution of acts in which the element of
judgement or discretion is either absent or relatively very small.

Administrative Discretion

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Professor Freund5 has defined “administrative discretion” in the following words:
“When we speak of administrative discretions we mean that a determination may be
reached in part at least, upon the basis of consideration not entirely susceptible of proof or
disproof... It may be practically convenient to say that discretion includes the case in which
the ascertainment of fact is legitimately left to administrative determination.”

Thus, the decision is taken by the authority not only on the basis of the evidence but in
accordance with policy or expediency and in exercise of discretionary powers conferred on
that authority. The legal concept of discretion implies power to make a choice between
alternative courses of action6. If only one course can lawfully be adopted, the decision taken
is not the exercise of discretion but the performance of a duty.

I. Conferment of discretion

Discretion is conferred in the area of rule-making or delegated legislation, e.g. when the
statutory formula says that the government may makes rules which it thinks expedient to
carry out the purposes of the Act. In effect, a broad discretion and choice are being conferred
on the government to make rules. Similarly, discretion is conferred on adjudicatory and
administrative authorities on a liberal basis, that is, the power is given to apply a vague
statutory standards from case to case. Rarely does the legislature enact a comprehensive
legislation complete in all details. More often the legislation is sketchy or skeleton, leaving
many gaps and conferring powers on the administration to act in a way it deems "necessary"
or “reasonable". Rarely does the legislature clearly enunciate a policy or a principle subject to
which the executive may have to exercise its discretionary powers. Quite often, the
legislature bestows more or less an unqualified or uncontrolled discretion on the executive.
Administrative discretion may be denoted by such words or phrases as “public interest”,
“public purpose”, “prejudicial to public safety or security”, “satisfaction," “belief, “efficient”,
“reasonable” etc. Thus, there is no set pattern of conferring discretion on administrative
officers.

It is true that with the exercise of discretion on a case to case basis, these vague
generalizations are reduced into more specific moulds, yet the margin of oscillation is never

5
Administrative Powers over Persons and Property, (1928) p. 71.
6
Davis, Discretionary Justice (1969) p. 4.

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eliminated. Therefore, the need for judicial correction of unreasonable exercise of
administrative discretion cannot be over emphasised.

II. Need of discretion

Due to the complexity of socio-economic conditions which the administration in modern

times has to contend with, it is realised that a government having only ministerial duties with
no discretionary functions will be extremely rigid and unworkable and the officials must be
allowed a choice as to when, how, and whether they will act. The reason for this attitude is
that, more often than not, the administration is required to handle intricate problems which
involve investigation of facts, making of choices and exercise of discretion before deciding
upon what action to take. Thus, the modern tendency is to leave a large amount of discretion
with various authorities. Statute book is now full of provisions giving discretion of one kind
or the other to the government or officials for various purposes.

However, from the point of view of the individual, there are several disadvantages in the
administration following the case to case approach as compared to with the adoption of a
general rule applicable to all similar cases. The case to case approach involves the danger of
discrimination amongst various individuals; there arises a possibility of not getting like
treatment under like circumstances. The process is time consuming and involves decision in a
multiplicity of cases. Also, there is a danger of abuse of discretion by administrative officials.

In view of these disadvantages, a general rule is to be preferred to the case to case approach
and ought to be adopted wherever possible. It is desirable to have administrative uniformity
to the extent possible, because, as a matter of general principle, substantial lack of uniformity
would lead not only to administrative chaos but also to collapse of public confidence in
administrative fairness.

III. No Unfettered discretion

It is true that the government cannot function without the exercise of some discretion by the
officials. It is necessary not only for the individualization of the administrative power but also
because it is humanly impossible to lay down a rule for every conceivable eventuality in the
complex art of modern government. Thus, a trend very much in vogue to-day in all
democratic countries is that only a relatively small part of the total legislative output

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emanates directly from the legislature. More often, the legislation is sketchy or skeleton,
leaving many gaps and conferring powers on the administration to act in a way it deems,
necessary. This technique of conferring discretionary powers on administration is so
extensively resorted to in modern times as a process of government that there is hardly any
statute passed by the legislature to-day which does not confer some discretionary powers on
administration. Quite often, the legislature bestows more or less an unqualified or
uncontrolled discretion on the executive. But it is equally true that absolute discretion is a
ruthless master. It is more destructive of freedom than any of main’s other inventions 7.
Therefore, there has been a constant conflict between the claims of the administration to an
absolute discretion and the claims of subjects to a reasonable exercise of it. Discretionary
power by itself is not pure evil but gives much room for misuse. Therefore, remedy lies in
tightening the procedure and not in abolishing the power itself.

Thus, today question is not whether discretionary powers to administrative authorities is

desirable or not but what controls and safeguards can be introduced so that unfettered or
unqualified discretion could not be conferred and discretionary powers could not be misused
by government officials. It thus, becomes necessary to devise ways and means to minimise
the danger of absolute discretion. To achieve such an objective, a multi-pronged strategy has
to be adopted. Courts have to play a major role in this process. The Indian Constitution
guarantees certain Fundamental Rights to the people which constitute a limitation on the
legislative and executive powers of the government and consequently, these rights provide an
additional dimension of control over administrative discretion.

The courts may control discretionary powers of administrative authorities in two ways;
(i) The courts may declare a statute unconstitutional if it seeks to confer too large a
discretion on the administration. Fundamental Rights in India thus afford a basis
to the courts to control the bestowal of discretion to some extent, by testing the
validity of the law in question on the touchstone of Fundamental Rights. For this
purpose, the courts can take into account both procedural and substantive aspects
of the law in question. At times, the courts may imply certain safeguards into the
law to hold it constitutionally valid.

7
Dougies in United States v. Wanderlich (1951) 342 45.98 at 101.

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(ii) The courts may control the actual exercise of discretion under a statute by
invoking certain fundamental Rights, especially Article 14, Article 16 and Article
19(1).

Limitations to Administrative Discretion: Article 14 of the Constitution

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One of the constitutional protections against unfettered or uncontrolled discretion in Indian
law is article 14 of the constitution which provides for the principles of ‘equality before the
law’ and ‘the equal protection of laws’. This constitutional provision condemns
discrimination; it forbids class legislation, but permits classification founded on intelligible
differential and having a rational relationship with the object sought to be achieved by the
Act in question. Article 14 is buttressed by Article 15 expressly prohibiting discrimination on
grounds of religion, race, caste, sex or place of birth. Article 16 states positively that there
shall be equality of opportunity in matters of public employment. ‘Unfettered discretion’ is
liable to be used in a discriminatory manner and this is offensive to Article 14.
The general principle is that conferment of an arbitrary, sweeping, uncontrolled or unfettered
discretion on an administrative authority violates Article 14 as it creates the danger of
discrimination among those similarly situated which is subversive of the equality doctrine
enshrined in Article 14.
Similarly, in Satwant Singh v. Assistant Passport officer8, where refusal of passport was hold
violative of Article 14, the issue of passports being governed entirely by discretion, the
Supreme court observed:
“In the case of unchannelled arbitrary discretion, discrimination is writ large on the face of
it. Such a discretion patently violates the doctrine of equality, for the difference in the
treatment of persons sets solely on the arbitrary selection of the executive”.
In state of West Bengal v. Anwar Ali9, in order to speed the trial for certain offences, Section
5(1) of the West Bengal Special Courts Act, 1950 conferred discretion on the State
Government, to refer any offence for trial by the special court. Since, the procedure before
the special court was stringent in comparison with that for normal trials, the respondents
asserted its unconstitutionality on the ground that it violates the equality clause in Article 14.
The court held the law invalid on the ground that the uses of vague expressions like “speedier
trial", confers a wide discretion on the Government and can be a basis of unreasonable
classification. The Act was held violative of Article 14 because it had empowered the
government to select any case or a class of cases or offences to be tried by the special courts.
This unfettered discretion is likely to be branded discriminatory and therefore, contrary to
Article 14.

Administrative Discretion and Judicial Review

8
AIR 1967 SC 1836.
9
AIR 1952 SC 75.

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Article 14 has established itself as the constitutional basis for demanding judicial review, the
degree of judicial review exercised on this basis has swung between two extremes of a
pendulum. In some cases the courts have rejected the standards provided by the statute as
“vague and uncertain” and condemned the enabling Act as having conferred unguided
discretion while in other cases they have handed the executive a free hand by saying that a
discretion vested in a high ranking officials is presumed to be exercised bona-fide 10
.Sometime they have accepted even a vague policy as sufficient for the purpose when the
same has been given in the preamble of the statute concerned or in general objective of the
statute11.

In state of W.B. v. Anwar Ali12, the West Bengal Special Courts Act, 1950 which authorised
the state government to direct a special court to try “any offence or cause” under a procedure
substantially different from the ordinary criminal procedure to determent of the accused
declared in its preamble that the object of the Act was” to provide for the speedier trial of
certain offences”. It was held that the necessity for a “speedier trial” was too vague and
uncertain to form a rational basis of classification. By contrast speedier trial related to the
object of the statue such as . “public safety" and ‘maintenance of public order in a
dangerously disturbed area’ has been accepted a sufficiently certain 13. Similarly in Kathi
Ranning v. State of Saurashtra14 a provision practically similar and parallel to the one
involved in the Anwar Ali case was held valid because the court found that the policy was
stated in the preamble to the Act.

In some cases, the Supreme Court has justified the conferment of large discretionary power
on the executive on the ground that power had been conferred on a high ranking official or
body which was not likely to abuse the power. In Commissioner of Sales Tax v.
Radhakrishan15, the court stated:
“Where power is conferred on high and responsible officers they are expected to act with
caution and impartiality while discharging their duties... The vesting of discretionary power

10
V. C. Shukla v. State, AIR 1980 SC 962.
11
Pannalal v. Union of India, AIR 1957 SC 397.
12
AIR 1952 SC 75.
13
Gopichand v. Delhi Administrative, AIR 1959 SC 609.
14
AIR 1952 SC 123.
15
AIR 1979 SC 1588.

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in the State or public authorities or an officer of high standing is treated as a guarantee that
the power will be used fairly and with a sense of responsibility16.”
In Manoharlal v. State of Maharashtra1762 Section 187-A of the sea Customs Act giving
powers to the custom authorities either to refer a case of import of prohibited goods to a
magistrate or themselves to confiscate the same and impose fine has been upheld on the
ground that the power has been conferred on the chief Customs Officer or other senior officer
and there is sufficient guidance in the object and purpose of the Act to exercise the power.

Again in Accountant-General v. Doraiswamy18, The Supreme Court would trust the

comptroller and Auditor General with discretion because of his ranking constitutional status.
It is a myth to say that the power vested in high officials is not apt to be misused as there are
many cases on record where the court itself has found some fault with the exercise of power
by high officials or even central or state government. This appears to be a very tenuous basis
to support conferment of broad powers, in Mohinder Singh Gill v. Chief Election
Commissioner19 the Supreme Court has itself warned that “...wide discretion is fraught with
tyrannical potential even in high personages, absent legal norms and institutional checks".
Thus, the sooner the court discards the argument of validating broad discretion because of the
high rank of the official the better it is for the growth of Administrative Law in India.

Thus, the courts have demanded that discretion must not be arbitrary. Absence, of standards,
policies and principles to guide the exercise of “absolute discretion” is liable to render the
resultant administrative action open to challenge.

Limitations to Administrative Discretion: Article 19 of the Constitution

16
Id at 1592, 93.
17
AIR 1971 SC 1511.
18
AIR 1981 SC 783.
19
AIR 1978 SC 851.

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Another constitutional bulwark against uncontrolled or unfettered discretion is Article 19.
Article 19(1) of the constitution guarantees the following rights to citizens: (a) freedom of
speech and expression; (b) freedom to assemble peacefully and without arms; (c) freedom of
association; (d) freedom to move freely throughout the territory of India; (e) freedom to
reside and settle in any part of the country; and (f) freedom to practice or carry on trade or
business20. These are not, however, absolute freedom. These rights are subject to reasonable
restrictions21 which the state may impose for the purposes specified in clauses (2) to (6) of
article i.e. national security, foreign affairs, public order, decency, public interest etc.

While determining the reasonableness of restrictions under Article 19, the Supreme Court has
insisted that the power conferred on the executive should not be arbitrary or discriminatory
and that an “unfettered discretion” left to the executive would be inconsistent with Article 19.
Thus, in State of Madras v. V.E. Row22, section 15(2) (b) Criminal Law Amendment Act,
1908 as amended by Madras Act, 1950 gave wide discretionary power to the State
Government to declare any association as unlawful. The court struck down section 15(2) (b)
as being unconstitutional because it allows the administrative authority to exercise this
discretion on subjective satisfaction without permitting the grounds to be judicially tested. In
State of Bihar v. K.K. Mishra 23, clause (6) of Section 144 Criminal Procedure Code gave
discretionary power to state Government to extend the life of an order passed by the
magistrate beyond the period of two months if it considered it necessary for preventing
danger to human life, health and safety or for preventing However, discretion is not open to
constitutional objection if - (a) The circumstances or the grounds on which it can be exercised
are state; or (b) if the law lays down the policy of the discretion; or (c) if there are adequate
procedural safeguards in law against the possible abuse of discretion 24. Thus in Virendra v.
State of Punjab25 a law which empowered the executive to impose restrictions on freedom of
the press if the executive were ‘satisfied that such restrictions were necessary to combat any
activity prejudicial to maintenance of communal harmony was upheld as valid because under
it an aggrieved person could make a representation to the court. However, uncontrolled
discretion, i.e. discretion not guided by rules, principles or policy, is liable to be struck down

20
The Constitution (Forty fourth) Amendment Act, 1978 amended Article 19 deleting the freedom to
acquire, hold and dispose of property.
21
Krishan Kakanath v. Govt, of Keral, AIR 1997 SC 128 at 135.
22
AIR 1952 SC 196.
23
AIR 1971 SC 1667.
24
Sathe, S.P. Administrative Law (1991) p. 314.
25
AIR 1957 SC 896.

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as infringing Article 19 rights. Statutory Power to determine from time to time the maximum
sale price of a certain type of rice in the discretion of the Director of Food was held invalid26.

In State of Maharashtra v. Kamal S. Durgule 27, the legislature had given the power to the
competent authority to declare a land vacant and then to acquire it. The power had given
without laying down any guidelines for the exercise of this discretion and no provision had
been made of any notice and hearing to the owner. Quashing Sections 3(1) and 4(1) of the
Land Acquisition Act, the Supreme Court held that because law confers arbitrary powers on
the government, hence it violates Article 14 of the constitution. The court further observed
that the fact that the exercise of this power has been given to officers of high echelon makes
no difference to the position and is hot a palliative to the prejudice which is inherent in the
situation. When discretionary power is conferred on an authority, there must be a provision
for corrective machinery by way of appeal or revision to superior authority to rectify an
adverse order passed by the lower authority.

But in Babuhai & Co. v. State of Gujarat 28 it was held by the court that if certain other ways
are available to check or control the discretionary power then mere absence of corrective
machinery by way of appeal or revision would not render the provision invalid. The court
observed that absence of such machinery may indicate that the power so conferred is
unreasonable or arbitrary but that providing such machinery is only one of the several ways
in which the power could be checked or controlled and its absence is one of the factors to be
considered along with several others before coming to the conclusion that the power so
conferred is unreasonable or arbitrary; mere absence of a corrective machinery by itself
would not make the power unreasonable or arbitrary. Some of the factors to be considered in
this connection are mentioned by the court as follows; on whom the power is conferred.
Whether on a high official or petty officer; what is the nature of power whether its exercise
depends on subjective satisfaction of the authority or is to be exercised objectively by
reference to some existing facts or test; whether or not it is a quasi-judicial power requiring
the authority to observe principles of natural justice and make a speaking order. The last
factor ensures application of mind by the authority only to pertinent or germane material on
the record excluding extraneous or irrelevant material and also subjects the order of the

26
Hari Ram Paras Ram v. State of Haryana, AIR 1982 P & H 108.
27
AIR 1985 SC 119.
28
AIR 1985 SC. 613.

17
authority to judicial review under writ jurisdiction on such grounds as perversity, extraneous
influence, mala fides and other infirmities.

On the whole, it appears that the administration enjoys a good deal of flexibility and it is
difficult to challenge successfully in a court. Wide and vague factors laid down in the
statutory provisions for the guidance of the administrative authority have been upheld. Even a
general statement of policy in the parent Act has been accepted. In certain situations, the
statute though it does not give discretionary power to the administrative authority to take
action, may give discretionary power to frame rules and regulations affecting the rights of
citizens. The bestowal of such discretion can be controlled by the court on the ground of
“excessive delegation.”

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 Limitations to Administrative Discretion: Article 21 and 22 of the
Constitution

Article 21 says, "No person shall be deprived of his life or personal liberty except according
to procedure established by law”. According to the Supreme Court ruling in Maneka Gandhi
v. Union of India29, Article 21 envisages “reasonable, fair and just procedure”. Strange
though it may seem, the Indian constitution visualizes the possibility of a law of preventive
detection as a peace time measure. Preventive detention here means detention of a person by
an executive authority merely on suspicion without any trial and conviction by a court of law.

Clauses (1) to (7) of article 22 provide some protection to the individual in preventive
detention to contain a few procedural safeguards mentioned therein. It is judicially
established that the making of an order of preventive detention can be left entirely to the
subjective satisfaction of the executive without the legislature setting up an objective standard
or test for the purpose30. A law of preventive detention cannot be faulted on this ground so
long as it provides safeguards laid down in Article 22(4) and (5). The control of judiciary on
preventive detention is only marginal. Courts are confined to reviewing an order of detention
like any other discretionary order on such grounds as mala-fides irrelevant or extreme
considerations, non-application of mind by the detaining authority. The courts can also
scrutinise the order to see whether the authority has complied with the prescribed procedure 31
or kept himself strictly within the confines of the law 32. They can also examine the grounds
from the point of view of their adequacy to make a representation” whether the grounds are
vague or indefinite so as to make it difficult for the detenue to make' adequate
representation33, or whether the particular furnished to him are Thus, Article 22 permits the
bestowal of a large amount of discretion on the administration to order preventive detention.
But it is also now judicially accepted that a law of preventive detention must not only fall
within Article 22 but must also fulfil the requirements of Article 21, 19 and 14.

29
AIR 1978 SC 597.
30
A. K. Gopalan v. State of Madras, AIR 1950 SC 27;
31
Makhan Singh v. State of Punjab, AIR 1952 SC 27.
32
Pankaj Kumar v. State of W.B., AIR 1970 SC 97.
33
Dhananjay v. Distt. Megisatrate, AIR 1982 SC 1315.

19
 Conclusion
There is a tendency at present in all democratic countries to leave a large amount of
discretion in the hands of administrative authorities. Thus, today the question of control of
discretionary powers is perhaps the most crucial and critical problem of the modern
administrative law. In India, courts have to play a major role in controlling the discretionary
powers. They control discretion at two levels viz, at the level of delegation of discretionary
power; and at the level of actual exercise of discretionary powers.

At the stage of bestowal of discretionary powers by legislature to the administrative

authorities, the judiciary, is quite a large number of situations, has rejected legislative
attempts to confer unregulated and unguided discretion in area covered by some of the
Fundamental Rights, such as Article 14 and 19 (and now Article 21) and that it has insisted
that the legislature should set up a standard or lay down a policy or principle, subject to
which administrative discretion may be exercised. The efficacy of this approach, has,
however, been somewhat mitigated and diluted by the judiciary accepting at times vague and
general statements of policy in the statute as adequate for holding the discretion conferred in
administrative authorities as not “unregulated". The Standard accepted as sufficient for this
purpose has been so general and vague that it is doubtful whether it serves any useful purpose
by way of controlling administrative discretion. Further, quite often the so called standard is
stated not in the substantive clause which confers discretion on the authority but in the
preamble to 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 conformity with the standard. This purpose can be effectively
achieved only if the courts insist that the legislature expresses its policy or standard or
principle clearly, and in such a way as would help the judiciary to keep the exercise of
discretion within the four corners of the legislative policy.

Further there is no uniformity yet on what procedural safeguards ought to be there in

legislation under different Fundamental Rights. In the case of some like freedom of “trade"
and “speech” and “association”, the judiciary has insisted on more substantial safeguards than
in the case of other fundamental rights, like those of “movement” or “residence’, though even
amongst the former category there is a lack of consistency in the judicial attitude. “freedom

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of speech” and "freedom of association”, the latter is a better protected right. In the case of
“association," the courts have 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 on even such a. weak safeguard
as that of an advisory board for externment of a person from a local area. If the judiciary has
found it necessary to insist on more than an advisory board in the case of the right of
association, there does not appear to be any convincing reason why at least an advisory board
is not required in cases of externment. Thus, it appears, is a minimum safeguard which the
judiciary should impose under the term “reasonable” in the relevant Fundamental Right. The
minimum safeguards in cases of grant 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 and that a safeguard that the authority should
record its reasons for taking action is not sufficient by itself, and that something more than
that is necessary. As regards cancellation of a licence, the courts now invariably insist on a
fair hearing as a procedural safeguard.

From the foregoing discussion, it also reveals that the court has been easily satisfied by broad
or even vague statements of policy in upholding legislation under Article 14. It has shown a
great deal of deference to legislation conferring discretion on the administration. Article 14
constitutes a great potential reservoir of judicial power and can serve as a great bulwark
against excessive executive discretion. If courts handle Article 14 carefully and insist on a
more definite, and precise statement of policy, the courts could effectively control the
administration. It may not be out of place to mention here that in the Fundamental Rights
there is 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 Constitution 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 constitution has placed at our disposal for controlling
administrative action and keeping it within proper bounds. In a welfare state, a balance has to
be drawn between government control and individual freedom, and it is for the courts to see
that this balance is not titled too much in favour of the government as against the individual.

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Bibliography

Ernst Freund., Administrative Powers over Persons and Property, (1928) .

Gordon D.M., Administrative Tribunals and the Courts, (1933)49 LQR 94, 419.

William Wade, Administrative law (Oxford Oxford University Press 2009).

www.manupatrafast.in/

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