Legislative conferment of wide discretionary powers on the ...

Legislative conferment of widediscretionary powers on the admin-istration and the courts

A. MANOJ KRISHNA*

The question of control of discretionary power is one

of the most crucial and critical problems of the present day

administrative law. Today wide discretionary powers are

conferred on the administrative personnel to enable them to take

decisions from case to case. The functions of administration

may be either ministerial or discretionary.' Because of the

complexity of socio-economic conditions which the administra-

tion in a modern welfare state has to contend with the range of

discretionary functions vested in the Administration is enormous

in comparison to ministerial functions. In order to cope up with

the challenge of fast changing situations the modern tendency is

to leave a large amount of discretion with various administrative

authorities.

Cases warranting decision in exercise of discretionary power

are never uniform. Each case offers a variety of option for the

decision maker. As a corollary the decision in each case does not

conform to any set pattern.

* LL.M (Ker.); Research Scholar, Centre for Advanced LegalStudies, Thiruvananthapuram.

A ministerial action is an action by an administrative agency whichis taken as a matter of duty imposed upon it by the law withoutinvolving the exercise of discretion. Such an action does notinvolve investigation into disputed facts or making of choice. Theyare acts of public officers or authorities done in strict obedience torules of statute or common law which impose upon them a simpleand definite duty in respect of which they have no choice.Discretion on the other hand implies power to make a choicebetween alternate courses of action. See Keir and Lawson, Casesin Constitutional Law (1967), p. 402,

280 Cochin University Law Review [1998]

The need to individualize the exercise of power by

administration is the primary reason for conferring discretionary

powers. The uniform application of a statutory provision may

often give rise to injustice. Further many other justifications can

also be advanced for conferring wide discretionary power.'- In

spite of all these positive arguments in favour of wide powers,

the fact remains that the individual who is at the receiving end of

an adverse decision may view the exercise of such power as unfair

as possibility of abuse of discretion cannot be ruled out

altogether.' Exercise of discretionary power has certain inbuilt

drawbacks and disadvantages. The presence of these disadvan-

tages has prompted Justice Douglas jurists to comment :

"Absolute discretion is a ruthless master. It is more

destructive of freedom than any of man's other

inventions."4

Thus the individual's need for administrative uniformity competes

with the State's propensity for administrative diversity.

M.P. Jain & S.N. Jain in their book Principles of AdministrativeLaw, (4th edn.1993), p. 327 gives four good reasons for conferringwide discretionary power. They are (a) present day problems facedby administration are complex and varying and it is difficult tocomprehend them all within the scope of general rules (b). It isimpossible to foresee each and every problem when a problem arises(c) Circumstances differ from case to case and so applying one rulemechanically to all cases will result in injustice (d) As/newinpredictable problems crop up old general rules may often be foundto be ineffective to tackle them.

Discretionary powers vested in authorities and exercised by themare disadvantageous to the individual when compared to the generalrule system ie. (system where general rules cover an area instead ofgiving power to authority to determine the matter by case to caseapproach). General rules usually avoid retroactivity and operate infuture so that individual has prior notice of the rules; whereas incase to case decisions the individual has nor prior notice andthe refore he cannot regulate his conduct accordingly.

4. Justice Douglas in United States v. Wunderlick, 342 U S 98 at pp.100-102.

C.U.L.R A. Manoj Krishna 281

Legislative attitude

Most of modern legislations are often very broadly worded

and they leave a large amount of discretion with various authori-

ties. They do not specify clearly the conditions, norms and

circumstances to be considered while exercising the power

conferred on them.' The legislations are more often sketchy or

skeletal leaving many gaps and conferring power on authority to

act in a way it considers 'adequate"expedient"reasonable' or

'fair'. These terms lack the degree of certainty as pointed by

Freund.' Thus the interests of the individual who is subjected to

administrative powers are often sidelined and sacrificed in the

name of administrative efficiency in the modern Administrative

arena. A multipronged strategy has to be adopted by the

administration to check the manifold disadvantages and the

danger of absolute discretion. In the modern administrative

systems the checks are either internal or external. (a) The

internal checks are designated mainly to ensure strict adherence

by the authorities exercising power to the standards and policies

5. Illustrations : Requistioning and Acquistition of ImmovableProperty Act 1952 authorises the central government to requisi-tion private property for the "purposes of the Union." However,the term 'purposes of union' is not defined thus giving governmentwide discretionary power. Under S.10 of Industrial Disputes Act1947 the government can refer an industrial dispute to labourtribunal. Wide powers are given to government in determiningwhether a dispute is an industrial dispute is an industrial disputewarrant a reference to the Tribunal. Section 4(6) of the EastPunjab Safety Act 1949 Authorises the State to extern a personfrom the state "if satisfied that it was necessary to do so". UnderS(3) of the National Security Act 1980 the Central Government "ifsatisfied with respect to any person that with a view to preventinghim from acting in a manner prejudicial to defence to India,security of state... make an order directing that such person bedetained".

6. Freund, Administrative Powers, Person and Property (1928), p.71


laid down by the law the conferring discretionary power' (b)In case of failure of legislation in laying down standards admin-istration itself laying down standards.' "However it needs tobe emphasized that while laying down standards to makethe discretion some what less absolute, no amount of rules ordirection can really eliminate the need of discretion becauseadministrative functions in a very broad area and individual casesand situations are bound to arise which may fall outside theguiding norms and the administration will have to take somedecisions therein" 9 . In this background the external check onadministration assumes great importance. The external check ismainly through the courts.

The judicial control of administrative discretion is exercisedat two levels :

the stage of delegation of discretion

the stage of the exercise of discretion

In the first case if a law confers vague and wide discretion-ary power on any authority it may be declared unconstitutionalon the ground of violation of Art. 14, Art. 19 and suchprovisions.'" Thus the Indian Courts have spelt out certain outer

In many statutes conferring discretionary powers the statute itselflays down the elements and standards which the authority has toapply in exercising its discretion. By this method the degree ofdiscretion is confined and structured. However in may of the modernstatutes the legislature lays down policies only in vague terms thusproviding wide leeways to the administration.

When legislature fails to lay down standards the administrationitself lay down standards by using its power of delegated legislation.Administrators are usually apathetic towards such forms of selfconfinements.

Jain & Jain, Principles of Administrative Law. (4th edn. 1993),p. 239.

Fundamental rights afford to some extent a basis to the courts tocontrol bestowal of discretion by testing the validity of the law onthe touchstone of fundamental rights. This is a unique feature of

(f.n. contd. on next page)


limits for conferment of board discretionary powers by involving

the fundamental right under the Constitution.

At the stage of the exercise of discretion there is post"

decisional review mechanism by the courts to ensure that the

administration acts within the legal limits. For this purpose the

courts have evolved several norms and the administration has to

exercise power accordingly. These formulations are grouped into

two areas : of abuse of discretions and non exercise of

discretion. An elaborate analysis of control at the level of

exercise is beyond the scope of the present article, which is

confined to control at the level of conferment of discretionary

powers.

Judicial Control of administrative discretion at the stage of

conferment of discretionary power is checked by courts in two

ways. First such conferment can be scrutinised with reference to

fundamental rights and Secondly when a statue though not

conferring discretion gives administrative authority discretion-

ary power still remains an area which is not clearly defined and

mapped. In many countries like England the former type of

control is totally absentu.

(f.n. contd.)

Indian Law for control of discretion. Another method of controlat the stage of delegation of discretionary power is through theprinciple of "extensive delegation of discretionary power". Underthis principle when wide discretionary powers are conferred onadministration without guide lines or policy they are considered ascases of excessive delegation and violative of fundamental rights -see Jain & Jain Principles of Administrative Law, (4th edn. 1993), p. 239.

In India unlike the U.S.A. there is no general statute likeAdministrative procedure Act conferring power on courts toreview exercise of administrative discretion. However the Indiancourts have derived this power from the Constitution. Using thispower they have developed various formulations to controldiscretion. Eg. Improper purpose, malafide use of powers,imposing fetters, acting under dictation etc.

In England the Parliament is sovereign and hence the courtscannot review legislations. Therefore bestowal of discretion onthe administration by the Parliament cannot be reviewed by courts.

284 Cochin University Law Review [19981

English scene

Doctrine of sovereignty of Parliament and consequentinability of the English courts to review legislations and thuscontrol the bestowal of discretion is a conspicuous drawback asfar as Administrative law is concerned. To add oil to the fire,parliamentary draftsmen strive to find new forms of words whichwill make discretion even wider and parliament all too readilyenacts them. It is this attitude act the courts to such seemingly

unbounded powers which is perhaps the most revealing feature

of a system of administrative law." English courts have reactedto the above problem by insisting that statutory powers are to beexercised reasonably in good faith and on correct grounds. Thecourt assumes that parliament cannot have intended to authoriseunreasonable action which is therefore utra vires and void."However the above approach can be had only from a bold bench."For timovorous souls it is an area where wide choices are opento them. If they choose to shelter behind literal interpretationand take words of each act by face value, they could absolvethemselves from any difficult problems. By insisting as they do,that implications of enactment are as significant as its expressprovision that powers given from public purposes are held upontrust, they embroil themselves with policy motives and merits ofadministrative action". Thus the paramount duty of loyalobedience to parliament has to a great extent limited the powersto check discretionary power in England.

The Parliament or more realistically the government whichcontrols the parliament is constantly conferring unfetteredpowers on the administrative authorities and attempting to take

H.W.R. Wade, Administrative Law (1982), pp. 347-348.

Griffith L.J. observed in this regard in the case of R. v. Commissionfor Racial equality Ex p Hillidgton, [19821 Q B 276 as follows"Now it goes without saying that parliament can never be taken tohave intended to give any statutory body a power to act in badfaith or a power to abuse its powers when the court says it willintervene if the particular body acted in bad faith it is but anotherway of saying that the power was not being exercised within thescope of statutory authority given by parliament."

15. Supra n. 13 at p. 348.


away judicial remedies. The power of the English court to checkthis is limited by parliamentary sovereignty. This inability of thecourts had made Wade to lament:

"If legislations were more restrained courts would

not be called upon to perform such striking feats of

interpretation"I6.

However in India the fundamental rights is a boon to the

Indian courts. In India courts have sought to spell out somelimits on conferment of broad discretionary powers by invoking

these rights."

Indian position

Presence of Fundamental Rights under the Constitution

which constitute a limitation on the governments legislative and

executive power provide an effective ground to attract judicial

review for exercising control over administrative discretion in

India. These rights are used to control discretionary powers in

two ways 1) Statutes conferring broad discretion may be

declared unconstitutional. For this purpose the courts scrutnise

both the procedural and" substantive part of law in question

Ibid.

Fundamental rights are used to check and confine discretions. Thismay involve substantive and procedural safeguards in exercise ofpower. Courts may imply substantive limits of power. They mayalso imply some procedural safeguard and adjudicatory body may berequired to follow principles of natural justice - See Jain and JainAdministrative Law, (1993), p. 329.

18. The constitutional check on conferment of discretionary power ismainly through Arts. 19 and Art. 14. While determining reasona-bleness of a restriction of fundamental freedoms guaranteed byArt. 19. The Supreme Court has insisted that the power conferredon the authorities should not be arbitrary or discretionary. Other-wise they will be inconsistent with Art. 19. See Ebrahim Vazirv. Bombay A.I.R. 1951 S.C. 118; State of Madras v. V.G. Row,A.I.R. 1952 S.C. 196 etc. Similarly any form of unfettereddiscretion is considered offensive to Art. 14 as it is liable to be usedin discreminatory manner. See State of W.B. v. Anwarl Ali, A.I.R.1952 S.C. 75.


2) Actual exercise of discretion under a statue may be controlled

by invoking fundamental rights. 19 These powers are available to

courts in India in addition to the other grounds that are available

to English and American courts in controlling the exercise of

administrative discretion. 2° In spite of the availability of several

positive aspects on the judicial control of administrative

discretion lacks in effectiveness which has made a jurist

comment thus "Though the courts in India has developed a few

effective parameters for the proper exercise of discretion, the

conspectus of judicial behaviour still remains halting, variegated

and residual, and lacks the activism of American courts.' While

the English courts in spite of the inherent weakness and

limitations condemn the offending administrative acts by several

ingenious methods like assuming that Parliament cannot have

intended to authorise unreasonable action which is therefore ultra

vires and void the Indian courts armed with Fundamental right is

remaining passive.'' 2 This passive attitude of restraint on the

part of Indian courts bordering on judicial inactivity can be traced

to the acceptance by court of several judicial myths some

imported and some indigenously created.

These myths are the following :

1) If in a legislation conferring discretionary power to

Administrative authorities if a policy is laid down to guide

This is the area of administrative discrimination. Thus whenAdministrative discretion is conferred subject to a standard or policyin the act then discretion exercised in disregard of such policy canbe challenged under Art. 14. See Jain & Jain, Principles of Admin-istrative Law, (1993); p. 605.

The general ground available under English law like 'malafide use ofpower', 'improper purpose', etc., are available in India too.

I.P. Massey, Administrative Law (1990), p. 58.

Dr. Fazal in his book Judicial Control of Administrative Action inIndia, Pakistan and Bangladesh (1990) observes at p. 158 : "TheIndian courts not withstanding their constitutional frame work ofjudicial control do not seem to have handled the issue any better.It does not appear that the courts will enquire into factual basis ofthe executives claim any more than the English courts will do".


the authority such conferment of power cannot be held

unconstitutional or reviewed by court even if the policy is

inarticulate or vague.

Even if a policy is not stated expressly they can be

inferred from the preamble and long title of the act.

Even if a statute confers wide discretionary power it

can be upheld if it contains procedural safeguards like

requirement of natural justice rules.

4) When a power is conferred on a high authority it must be

presumed that the government would act in accordance

with law and in a bonafide manner.

Bold stance

In the majority of the cases the courts have upheld Laws

conferring wide discretionary powers by relying on any of the

propositions stated above. Thus these judicial myths have been

concretised to jural postulates. It is respectfully submitted that

the courts should change their stance in this area. Among the

plethora of cases where legislations conferring administrative

discretion were scrutinised, there is also a handful of cases where

the judges have taken a bold stance and asserted their legitimate

powers. Some of these cases are worth analysing for identifying

the techniques used by the judges.

The earliest case in this area is State of West Bengal v. AnwarA1i. 23 The Constitutional validity of West Bengal Special Courts

Act 1950 was in issue in this case. Under sec. 5(1) 24 of the Act

the state government was empowered to refer by general or

special order, offences for trial to a special court constituted

A.I.R. 1952 S.C. 75.

S.5(1) reads : "A special court shall try such offences or class ofoffences or cases or class of cases as the State Government may bygeneral or special order direct".


under the government. The preamble of the Act declared its

purpose as the 'speedier trial' of certain offence. A seven

member bench of Supreme Court invalidated the statute as

violative of Art. 14 of the Constitution. The Court held that the

statute authorises government to discriminate between similarly

situated persons without any yardstick or measure for grouping.

The Court observed through Mukerjee J :

"In the case before us the language of S. 5(1) is

perfectly clear and free from any ambiguity. It vests

an unrestricted discretion in the state government

to direct any cases or classes of cases to be tried by

the special court in accordance with the procedure

laid down in the Act. It is not stated that it is only

when speedier trial is necessary that the discretion

should be exercised. ...

In the second place, assuming that the preamble

throws any light upon the interpretation of the

section I am definitely of opinion that the necessity

of speedier trial is too vague, uncertain and

elusive a criterion to form a rational basis or the

discrimination".25

After stating this proposition, Judge does not stop there he

further explains the nature of the term speedier trial. The Judge

continues to clarify "The word used here is speedier which is a

comparative term and as there may be degrees of speediness the

word undoubtedly introduces an uncertain and variable element".

Therefore the Court held that this will pave way for arbitrary

selection by government and hence it is invalid.

25. Emphasis supplied, supra n. 23 at p. 16.


The approach of the Court in the later case of Dwarka Prasad'was similar to the approach in Anwar Ali case. 27 In this case"

the clause 4(3) of UP Coal Control Order 1953 was challenged as

violative of Art. 19(1)(g). The U.P. Coal Control Order 1953

issued under the Essential Supplies (temporary powers) Act 1946

required a licence to be granted by a licensing authority under

the order, for the purpose of selling coal within a State. The

clause 4(3) of the order provided : "The licensing authority may

grant, refuse to grant, renew or refuse to renew a licence and may

suspend, cancel, revoke or modify any licence or any terms thereof

granted by him under the order for reasons to be recorded. The

main contention of the petitioners was that clause 4(3) conferred

arbitrary power on the licensing authority and was therefore

violative of Art. 19(1)(g). The contention of the petitioners was

accepted by the Court. Mukherjee J. in his judgement observed :

"No rules have been framed and no directions given

on these matters to regulate or guide the discretion

of the licensing officer. Practically the order

commits to the unrestrained will of a single individual

the power to grant withhold or cancel licences in

any way he chooses and there is nothing in the

order which could ensure a proper execution of the

power or operate as a check upon injustice that might

result from improper execution of the same.""

Dwaraka Prasad v. State of U.P., A.I.R. 1954 S.C. 224.

Supra n. 18 and 23.

In some other similar cases also the Court has invalidatedprovisions conferring unbridled power. In Ram Manohar Singhv. Rajasthan, A.I.R. 1954 Raj. 113, Section 71(2) of RajasthanExcise Act was held void on the ground that neither the preamblenor the provisions provided any directions for exercisingdiscretion. In Rasiklal Ghosh and Sons v. Inspector of Drugs,A.I.R. 1960 AS. 94. R62-A Assam Drug Rules 1945 was held voidon the ground that it conferred wide power to authority to grant orrefuse licence.

Dwaraka Prasad case, supra n. 26.


The contention of the state that a sufficient safeguard has

been provided against any abuse of power by requiring the

licensing authority to record reasons was not accepted by the

Court. Further quoting Justice Mathes from the case of Yick

Wo v. Hopkin s° the Judge stated "The action or non-action

of officers placed in such position may proceed from enmity or

prejudice, from partisan zeal or animosity, from favouritism and

other improper influences and motives which are easy of

concealment and difficult to be detected and exposed". Thus

the Court invalidated Cl. 4(3) of the order as it conferred arbitrary

power.

The Supreme Court had followed the same approach as in

the Anwar Ali and Dwaraka Prasad decisions in certain other

decisions like Chandrakant v. Jusjit Singh, 31 Ganapati Singhjiv. State of Ajmer:2 RM Shedhadri v. District Magistrate

Tanjore," and many other decisions during the period 1955-60.'1

In Ganapati Singhji case s' a provision which empowered

the district Magistrate to revoke a permit, granted to a person to

hold a fair without assigning any reasons or giving any previous

notice was declared bad as violative of Art. 19(1)(g) as it

conferred absolute power on the magistrate. In Chandrakant v.

Jasjit Singh's' the Section of Customs House Agents licensing

118 U.S. 368 (1886).

A.I.R. 1962 S.C. 204.

A.I.R. 1955 S.C. 188.

A.I.R. 1954 S.C. 74.

Vittalji v. Dy. Custodian of Evacuee Property, A.I.R. 1955 Mad.972. S. 40(4); H.P. Khandelwal v. U.P., A.I.R. 1955, ALL 12'Balbhan Manaji v. Babuji Satwaji, A.I.R. 1957 Bom. 233; Punjabv. Kehar Singh A.I.R. 1958 Pub. 8; Mohammed Ismail v. DistrictMagistrate, A.I.R. 1957 All 487.

Supra n. 32.

36. Supra n. 31.


rules 1960 made under Sea Customs Act which conferred on

Customs Collector the power to reject an application for the grant

of licence if "the applicant is not otherwise considered suitable

was held to be bad and violative of Art 19(1)(g) as it conferred

very wide discretionary power.

Article 14 had proved to be a valuable tool in restraining

unfettered discretion in the early period. 37 The courts had

vigorously demanded that administrative discretion must not be

arbitrary and they should be based on reasonable criteria and

not on vague and uncertain guidelines. Where the executive may

proceed under one provision or other in dealing with a matter

and their choice is one of very wide discretion unregulated bystandards the resulting administrative action as well as the

enabling statutes may be held invalid as violative of Art. 14.38

Even though the Indian courts accepted the fact that the wisdom

of legislative policy is not open to judicial review they took the

stance that when the wisdom of legislature takes the concrete

form of law it must be in tune with the fundamental right guaran-

teed by the Constitution. Article 14 strikes arbitrariness which

involves the negation of equality. An action perse arbitrary

denies equality of protection by law under Art. 14."

Even in recent periods i.e. 80's and 90's courts have used Art. 14 tocheck unfettered discretion. But such checks are mainly at thestage exercise of discretion and not at the state of conferment ofdiscretion. However in recent times also there have been someexceptions for e.g. in Nishi Magdu v. State off & K, A.I.R. 1980S.C. 1975, selection of candidates for admission to M.B.B.S. coursefor correcting regional imbalance was held invalid in the absence ofidentification of areas.

Classic example for this attitude is the case of Suraj Mall v. Viswan,A.I.R. 1954 S.C. 45. Here Section 50 of the Taxation of Income(Investigation Commission) Act 1947 was challenged as violativeof Art. 14. Sec. (50) of the Act empowered Central Governmentto refer to the investigation commission for dealing with the caseof any person whom Central Government had reason to believe tohave "to a substantial extent" evaded payment of income tax. Asthe standard of substantial extent being an indefinite guide thesection was held violative of Art. 14.

39. Al Kalra v. P & E Corpn. of India Ltd., A.I.R. 1984 S.C. 1361.

292 Cochin University Law Review 11998]

The cases like Northern India Caterers Ltd. v. Punjab'relating to the early period established that where two proce-dures are prescribed by law and one of the two is harsher or moreonerous than the other, the harsher procedure cannot bejustified unless it is based on a reasonable classification by the

law itself or on the basis of classification made by executive inthe exercise of its discretion in the light of the policy of the Act.On this ground S(4) of Punjab Public Premises and Land Eviction(rent recovery) Act 1959 was held violative of Art. 14. In thiscase the Act had provided for two procedures of which one wasmore drastic and it could be applied at the arbitrary will of theauthority.

Judicial lassitude

The bold stance of the courts in invalidating conferment ofarbitrary power was discarded in later cases. The earlier cases

like Anwar Ali 4 ' and Dwaraka Prasad42 were distinguished fromthe facts of the new cases and new principles were evolved bythe court to uphold conferment of very wide or even arbitrarypower.' Main among such principles was that if the policy of astatute is not expressly stated in an act then it can be derivedfrom the preamble. Kathi Raning v. State of Saurastra 44 is aclassic example of a case where the court had adopted the earlystated principle.

In Kathi Ranning45 case the facts were almost similar to that

of the Anwar Ali case.' Here S. 11 of47 Saurashtra State Public

A.I.R. 1967 S.C. 1581.Supra n. 18.Supra n. 26.Ibid.A.I.R. 1952 S.C. 123.Ibid.Supra n. 18. The words used in Saurashtra State Public SafetyMeasures Ordinance 1948, Section 11, which was challenged in thiscase was worded exactly in the same manner as the impugnedsection in West Bengal Special Courts Act which was in issue in theAnwar Ali case.Section 11 reads : "special judges shall try such offence... asgovernment may by general or special order direct.

C.U.L.R A. Mattoj Krishna 293

Safety Measures Ordinance, 1948 was challenged as conferring

arbitrary power on the government to direct any class of offences

to special tribunal. The government was given absolute power

to make any classification it likes, without any guiding principle.

However the present case was distinguished from Anwar Ali case

and the conferment of power was upheld. The court held that in

the present case the preamble of the Ordinance provided a

necessary guideline for the government in making classification.

The Court reasoned thus :

"If the legislature indicates a definite objective and

the discretion has been vested in the government

as a means of achieving that object, the law itself as

I have noted above cannot be held to be discrimina-

tory.... Now the Ordinance is described to as an

Ordinance to provide for the security of the state,

maintenance of public order and maintenance of

supplies and services essential to the community in

the state of Saurashtra. The preamble to the

Ordinance sets out the objective of the ordinance in

identical terms".... If special courts were considered

necessary to cope up with an abnormal situation it

cannot be said that the vesting of authority in the

state government to select offences for trial by such

courts is in any way unreasonable.""

48. Supra n. 44. In Kathi Ranning case the majority (Sastri CJ, FazalAli, Mukerjee and Das JJ.) held that the preamble of the Act andcircumstances disclosed by the government in an accompanyinggovernment affidavit provided the necessary guidance for the gov-ernment in classifying cases. Minority judges (Mahajan andChandrasekhar J.J.) were of the opinion that the case is covered byearlier Anwar Ali case. Seervai in Constitutional Law of India,(14th ed.); p. 516 criticizes the majority decision. According tohim the real issue was whether the legislature had classifiedoffences or whether they had indicated any principles on whichgovernment had to act. Majority decision did not refer to thisaspect. Further the plain unambiguous language of S. 11 could notbe controlled by the preamble.


Thus the Court in Kathi Ranning distinguished the earlier

Anwar Ali case. Taking this cue the West Bengal Act was

amended. The amended Act was upheld in a later decision."

This approach was followed in later cases also."

The Pannalal Bhin Raj 5I case involved the Constitutional

validity of S (7-A) of the Income Tax Act 1922. Section 64 of the

Act prescribed the place of assessment. Under section (7-A)

however Central Board of Revenue could transfer any case from

one Income Tax Officer to another causing great inconvenience

to the assessee. No express guidelines were provided for the

exercise of discretion by the authority. However, this conferment

of wide discretionary power was upheld by the Apex Court mainly

on two grounds —

(a) The section was a provision for administrative conven-

ience and the discretion was to be exercised by the authority

with due regard to the exigencies of tax collection. According

to the court 'exigencies of tax collection' provides an effective

guideline for the authority to exercise discretion; (b) As the

discretion is vested not in minor officials but in top ranking

authorities like Commissioner of income tax, abuse of power

cannot easily be assumed. 52 Further the Court also discovered

the purpose of the Act from the preamble of the earlier Indian

Income Tax Act 1886. It is submitted that reasons given for

upholding the section in this case is unconvincing and illogical.

By no amount of imagination can we assume that 'exigencies of

tax collection' or 'administrative convenience' will act as a guide-

line to assessing authorities in checking their discretionary power

Haldar v. State of W.B.; A.I.R. 1960 S.C. 457.

Bisainbhar Nath v. State of Orissa; A.I.R. 1954 S.C. 139 and In reKerala Education Bill; A.I.R. 1958 Ker. 956. In all these cases theSupreme Court discovered the policy of an Act from the preambleof the statute.

Pannalal Bhinraj v. Union of India, A.I.R. 1956 S.C. 479.

!bid; para 30


for the benefit of assessee. Further the assumption that power

vested in high officials will not be abused is a presumption which

cannot be stretched too far.

The final blow to the Anwar Ali case however was the deci-

sion of the apex court in Kedarnath v. State of West Bengal." Inthis case S, (14) of the West Bengal Criminal Law Amendment

(Special Courts) Act 1949 5' was challenged as unconstitutional

and void on the ground that it conferred unfettered discretion on

the provisional government to pick and choose any particular

case of a person and allot it to the special court to be tried by

special procedure. S (4) was therefore contended as discrimina-

tory and hence violative of Art. 14. The Judge in this case mainly

relied on Kathi Ranning case 55 and using it as a shield, neutral-

ised the effect of Anwar Ali case. Using the ratio of KathiRanning case Pathanjali Shasthri reasoned in Kedarnath thus :

"Saurasthra case would seem to lay down the

principle that if the impugned legislation indicates

the policy which inspired it and the object which it

seeks to ascertain the mere fact that the legislation

does not itself make a complete and precise classifi-

cation of the persons or things to which it is to be

applied, but leaves the selective application of the

law to be made by the executive authority in accord-

ance with the standard indicated or underlying

policy and object disclosed is not a sufficient ground

for condemning it as arbitrary".56

A.I.R. 1953 S.C. 404.

S 4 (1) of the Act empowered the provincial government to allotcases for trial to a special judge. The preamble of the Act statedthe object as "It is expedient to provide for the more speedy trialand more effective punishment of certain offences.Supra n. 44.

Supra n. 53 at p. 409


The Kedarnath decision thus distinguished from Anwar Ali case

mainly on the ground that whereas the Saurasthra law" made no

classification of offences itself and left the whole matter to be

executive. The law in issue in Kedarnath case itself has made

the classification of offences for trial by special courts and power

to refer specific cases was subject to this classification.

It is submitted that the Act challenged in the cases of Anwar

Ali, Kathi Ranning and Kedarnath all were of the same genre

and the distinctions discovered by Courts were illusory and

vague." In all these Acts the purpose for setting special courts

was "speedier trial" of certain classes of offence'. However the

Saurashtra Ordinance was upheld by Court on the ground that

the object of the Ordinance is stated in the preamble" and West

Bengal Criminal Law amendment (Special Courts) Act 1949 was

upheld as the Act itself had made the classification. Neither the

statement of a wide policy nor classification by Act is capable of

limiting a discretionary power conferred on the executive.

Board statement of policy in the preamble or general

objective of the statue was considered by courts in many other

cases too as sufficient guideline for the executive in exercising

their discretionary power and on this ground general Acts

The Act that was in issue is Anwar Ali case.

See H.M. Seervai, Constitutional Law of India, 4th ed., p. 515.The learned jurist observes that the impugned provisions of theSaurashtra Ordinance were substantially the same as those in theAnwar Ali case. The only differences were that (1) it was free ofsome objectionable feature of W.B. Act and (2) the preamble wasdifferent. However according to Seervai the Saurashtra Ordinancewas also sufficiently prejudicial to the accused to be discrimina-tory. Further the classification in the judgement that ambiguity inthe section can be controlled by the preamble is not acceptable toSeervai.

59. According to the Court the object of the Act was security of State,maintenance of public order and maintenance of supplies andservices.


conferring wide discretionary power were upheld." In

Biswambhar v. Orissa' an Orissa Act authorised the state

government to take over any estate from the land lords. The

statute gave fettered discretion to the state government in this

regard. However the Statue was upheld by the Court as the policy

of the Act was clearly stated. According to the Court the state-

ment in the preamble that the statute was passed in pursuance of

Directive Principles of State Policy to secure economic justice to

all is a clear enunciation of policy in the Act. The Court further

reasoned that sooner or later all estates must be abolished but all

estates could not be taken over at once due to financial difficul-

ties and therefore from the very nature of things it was necessary

to give "a certain amount of discretionary latitude" to the State

Government.

In re Kerala Education Bill' seemingly broad powers

conferred on the Kerala Government in controlling private schools

were upheld by the Supreme Court. The Supreme Court held that

general policy of the Act is stated in the preamble and further

they are reinforced by more definite statements of policy in

different clauses. The Court was of view that Clause 3(2) (A) (B)

& (C) contains distinct statements of policy. With regard to the

term may (which gave discretionary power to the authority), the

Court observed "If the existence of the purpose is established

and the conditions of the exercise of the discretion are fulfilled,

the Govt. would be under an obligation to exercise the discretion

in furtherance of such purpose." On this ground discretionary

Bhikusa Yamasa v. ATB Union A.I.R. 1959 Born. 299; HindustanElectric Co. v. RPF Commissioner A.I.R. 1959 Pun. 27; ReserveBank of India v. Palai Central Bank, A.I.R. Ker. 268; Rain Saruv. Union A.I.R. 1965 S.C. 247; Bastiram v. Punjab A.I.R. 1965Punjab 269; Chayya Devi v. Bihar A.I.R. 1957 Patna 44; TikkaRamji v. U.P. A.I.R. 1956 S.C. 676; Jyothiprasad v. Administratorof Delhi; A.I.R. 1961 S.C. 160; and Premium Granite v. State ofTamil Nadu A.I.R. 1994 S.C. 2235.

A.I.R. 1958 S.C. 956.

62. A.I.R. 1958 S.C. 956.


power was upheld. The attitude of the court upholding confer-

ment of wide discretionary power, once some policy (even a vague

policy) is laid down was followed by Court in later cases like

Jyothiprasad v. Administrator for the Union Territory,"Y. Sreenivasa Rao v. J. Veeraih m , V.C. Shukal v. State', and

Delhi Adm. v. V.C. Shukla".

It is submitted that the judicial attitude of upholding this

type of conferment of wide discretionary power on the ground of

wide and vague policy statement in the Act and inferring policy

of the Act to the preamble or long title is unjustifiable.

The main disadvantages are the following :

1) Vague and wide policy is effective as a method of structur-

ing and limiting discretion only if the power is exercised

by a public officer committed to social welfare and having

necessary ability to comprehend and apply the policy and

object of the Act. In the modern age where corruption has

become a normal affair there cannot be any presumption

that public officers will discharge their function honestly

and in accordance with Law. In these circumstances a

vague policy will enable an authority to abuse its power

and claim it as being done accordingly to the policy. Here

the authority has a wide latitude and it becomes

practically impossible for the Court to invalidate an action

Supra n. 60.

A.I.R. 1993 S.C. 929.

A.I.R. 1980 S.C. 962.

A.I.R. 1980 S.C. 1382. In this case the S.5(1) of Special CourtsAct 1979 which granted Central Government power to refercertain offences by high officials for trial by special courts wasupheld on the following grounds :

The government had to exercise discretion in accordance withguidelines contained in the preamble.

There had to be proper application of mind.

c) The power is conferred on very high Authority.


taken as it will seemingly be claimed as done, according to

the policy". It is to be remembered at this juncture that

once a discretionary power is exercised in accordance to

the policy of an Act it cannot be invalidated by Court

unless there exist vices of 'Malafide"taking irrelevant

considerations' etc."

Prevention is better than cure. It is better to prevent

misuse of discretionary power at the stage of conferment

of power itself rather than waiting for actual misuse of

power by the authorities. It has to be remembered that

valuable time of courts, money of the public and govern-

ment are lost by litigation. Invalidation of laws conferring

wide discretion will also motivate the legislative draftsman69

to draft laws precisely thus checking the possibility of

abuse. Further it will have an indirect deterrent effect on

the administrators from acting in an arbitrary manner.

There is no judicial arrogance" in the act of the courts in

striking down an enactment because reason is the soul of

As observed in Yickwo v. Hopkin 118 U.S. 368 (1886) "The actionor non action of officers placed in such position may proceed fromenmity or prejudice from partisan zeal or animosity from favourit-ism and other improper influences and motives high are easy ofconcealment and difficult to be detected and exposed".

Grounds like 'malafide' are very difficult to be proved before Court.Seervai has observed in this regard : "It is settled law thatallegations of malafide must be strictly proved and the practicaldifficulty of discharging that burden has been judicially recognised.See Seervai, Constitutional Law of India, 4th edn., p. 524.

Loose wording in the statutes gives a lot of leeways to theauthority to act in an arbitrary manner. Modern States are full ofsuch wording. The Supreme Court observes "Indeed if the draftsmanwere to give the framing of Act even a part of the care and concernbestowed by the High Courts though not at same length, many animpediment in upholding validity of Act could have been cleared;State of Maharashtra v. Kamal, A.I.R. 1985 S.C. 119.

Certain judges are of opinion that the judiciary should take a verypassive stance with regard to invalidating statutes. A classicobservation in this area is that of Mathew, J. in his dissenting

(fn. contd. on next page)

300 Cochin University Law Review [1998)

law and when the reason of any particular law ceases so

does the law itself.

4) Quite often the Court uphold laws conferring discretion

even if statement of policy is not stated in the relevant

statutes but deriving it from the policy of the Act. This is

disadvantageous for the Courts. Courts can verify whether

an administrative action is in confirmity with the policy

effectively on if such policies are stated in the Act and nor

when they are derived from the preamble.'

Eventhough the general trend of judiciary is to uphold

conferment of wide discretionary power on the executive

authority on the ground stated earlier," a welcome change is

seen in the judicial attitude in some very rare cases. These are

cases where the judiciary has asserted itself aside the attitude of

judicial humility.'

State of Maharastra v. Kamal S." is an important case in

this category, where Maharastra Vacant Lands (Prohibition of

Unauthorised Occupation and Summer Eviction) Act 1975 was

challenged as violative of Art. 14 & 19 (1) (f) of the Constitution.

It was contended that the Act conferred upon the authority

unfettered discretionary power without any guideline to declare

any land as vacant land. The State pointed out that the recital in

(f.n. contd.)

opinion in Punjab v. Khanchand; A.I.R. 1974 S.C. 543. Heobserves : Our attempt must be to preserve and not destroyrespect for a coordinate branch of the Govt. As well as thepresumption of constitutionality demands it : Before a dulyenacted law can be judicially nullified it must be forbidden by someexplicit restriction in the Constitution.

See Jain & Jain, Principles of Administrative Law (1993), p. 397.

For elaborate grounds see supra. 66

Mathew, J. observed in Punjab v. Khan Chand, supra n. 70 withregard- to the functions of Judge : "Our duty of deference to thosewho have the responsibility for making laws has great relevancein this context. The attitude of judicial humility which thisconsideration enjoins is not an addiction of the judicial function".This attitude was given up in some new cases.

A.I.R. 1985 S.C. 119.


the Act75 , S.2(f) of the Act defining 'vacant lands') and long

little and object of the Act' provided the necessary guidelines

for the authority in exercising their discretionary power. The

contentions of the State were rejected by the Court. The Court

observed "The Act does not contain provisions whatsoever

which is directed at ensuring the public health and sanitation or

peaceful life of the inhabitants of the concerned locality. Indeed

nothing is further removed from the true purpose and object of

the act than these considerations". 78 Further the court in the

same judgement,' laments on the indifference of the legislature

in drafting the words 'vacant land'. Thus S.2 (f) of the Act was

held constitutionally invalid as conferring arbitrary power.

DT Corporation v. DTC Mazdoor Congress" is yet another

cases in this category involving the question of validity

Recital reads : "A whereas the number of unauthorised occupants ofvacant lands in the urban areas in the state was rapidly increasingand causing grave danger to the public health and sanitation and tothe peaceful life of inhabitants".

Sec. 2 (f) reads as follows :

"a) All vacant lands in such area whether agricultural or nonagricultural which are vacant and not built upon on theappointed day.

b) All lands in such areas on which any structure has been or isbeing constructed otherwise than in accordance with any lawregulating the construction of such structure and which thecompetent authority may from time to time by an order inwriting specify and declare as vacant land."

The object of Act was to prohibit unauthorised occupation of vacantlands in urban areas of Maharashtra.

Supra n. 74.

Id., para 16, the Court observes : "Indeed if the draftsmen were togive to the framing of the Act even a part of the care and concernbestowed by the High Court, though not at same length, many animpediment in upholding the validity of Act could have beencleared."

A.I.R. 1991 S.C. 101.


of Regulation 9 (b)" of the Delhi Road Transport Authority

(Conditions of Appointment and Services) Regulation 1952. It

was contended that the said regulation confers wide and unfet-

tered discretionary power on the authority and is therefore

violative of Art. 14. It was contended on behalf of state that

even if there is no express statement of policy the guideline of

public purpose can be read into the Act. This argument was

rejected by the Court. Ramaswamy J. observed in this regard :

"Courts have no power to amend the law by process

of interpretation, but do have power to amend it so

as to be in confirmity with the indent of legislature.

Doctrine of reading down is one of the principles of

interpretation of statue in that process, but when

the offending language used by the legislature is

clear precise and unambiguous violating relevant

provisions in the Constitution resort cannot be had

to the doctrine of reading down to blow life into the

void law to save it from unconstitutionally."

Further regulation 8(6) it was held, deliberately confers wisepowers of termination of services of employees and is therefore

violative of rule of law and Article 14. of the Constitution. The

Court observed:

Regulation 9(b) reads : (a) Except as otherwise specified in theappointment orders the services of an employee of the authoritymay be terminated without any notice or pay in lieu of notice (i)During the period of probation and without assigning any reasonsthereof (ii) For misconduct (iii) On completion of specific period.

(b) Where the termination is made due to reduction of establishmentor in circumstances other than those mentioned at (a) above onemonth notice or pay in lieu thereof will be given to all category ofemployees. (c) Where a regular/temporary employee wishes toresign from the post under the authority he shall give three monthsnotice in writing or pay in lieu thereof to the authority providedthat in special cases the General Manager may relax at hisdiscretion the conditions regarding period of notice.

A.I.R.1991 S.C. 101 at p. 103.


In a system governed by Rule of Law discretion when

conferred upon executive authorities must be

confined within defined limits. The rule of law from

this point of view means that the decisions should

be made by application of known principles and rules

and in general such decisions should be predictable

and the citizen should know where he is"•82a

Directly opposite to the line of above cases is the judgement

in Premium Granites v. State of Tamil Nadu." Here Rule 39" of

Mineral Concessions Rules made under Sec.15( 1) of the Mines

and Minerals (Regulation and Development) Act was challenged

as conferring arbitrary power on executive and hence violative of

Art. 14. The rule 39 contained a policy viz., "public purpose and

interest of mineral development". The rules were struck down by

Madras High Court on the ground that the policy was vague.

However in appeal the decision was reversed. The Supreme Court

observed that the term mineral development is not a vague

expression and the Act and Rule clearly purport the scope of the

term 'mineral development'. The Court further observed that the

expression public interest finds place in the Constitution and

many enactments which have since been noted and considered

by Courts in various decisions and therefore the said expression

is a word of definite concept. The Court again held that guide-

lines need not be expressly found in the impunged provision but

such guidelines can be gathered from the setting of the Act. The

decision is a classic example for the current trend of judicial

82a. Ibid.

A.I.R. 1994 S.C. 2235

Rule 39 reads thus : "Notwithstanding anything contained in theserules the State Government if in any case are of opinion that in theinterest of mineral development and in public interest it isnecessary to do they may by order and for reasons to be recorded

grant or renew a leave or permission to quarry any mineral; orallow the working of a quarry for quarrying any mineral on terms

and conditions different from the laid down in the rules.


restraint bordering on judicial indifference with regard to Actsconferring uncontrolled discretion. Unfortunately the Indian

courts are sticking on to a stance of judicial restraint as in

Granite case" in contradiction to its stance in DTC Corporation

v. D.R. Mazadoor Sangh" and State of Maharashtra v. Kamal"

in spite of criticism by several renowned jurists." It is high timethe courts start realising the drawback of this approach.

Myth of high officials acting legally

Another judicially created myth existing in the area ofconferment of discretionary power is that; when power isconferred on a high ranking official or body it is unlikely thatthey will abuse power. This principle was applied in a number ofcases. In Pannalal Bhinra)' v. Union of India" the Courtobserved:

"It may also be noted that this power is vested notin minor officials but in top ranking authorities likethe Commissioner of Income Tax and Board ofRevenue .... This power is discretionary and not

Premium Granites v. State of Tamil Nadu, supra n. 83.

A.I.R. 1991 S.C. 101.

A.I.R. 1985 S.C. 119.

Jain & Jain in their Book Principles of Administrative Law, 4thed., at p. 397 observe : "The efficacy of this wholesome approachhas however, been somewhat mitigated by the judiciary acceptingat times vague and general statements of policy in the statutes asadequate for holding the discretion conferred on administrativeauthorities as not 'unregulated'. The standard accepted as sufficientfor this purpose has been so general and vague that it is doubtfulwhether it serves an useful purpose by way of controllingdiscretion."

89. Supra n. 51. This fact was again reiterated by the Court in a latercase. In Commissioner of Sales Tax v. Radhakrislmnan (A.I.R. 1979S.C. 1588) the Court observed : "The vesting of discretionary powerin the state or public authorities or an officer of high standing orpublic authorities or an officer of high standing is treated as aguarantee that the power will be used fairly and with a sense ofresponsibility."


necessarily discriminatory and abuse of power

cannot be easily assumed where the discretion is

vested in such high officials. There is, more over, a

presumption that public officials will discharge their

duties honestly and in accordance with the rules of

Law"."

In Joseph Vellekunnel v. Reserve Bank of India 91 Sec. 38(1)

and (3)(b) iii of Banking Companies Act 1949 were challenged as

violative of Art. 14 of the constitution on the ground that the

sections conferred arbitrary power on the Reserve Bank to wind

up any company. The Court rejected this contention stating that

Reserve Bank is an expert body to deal with banks and it acts not

on suspicion but on proved facts and it cannot be stated that the

Reserve Bank would act arbitrarily from case to case. The

conferment of power on administrative authorities was upheld on

the ground that the power is conferred on a high ranking official

in many other cases like Maneka Gandhi v. India, 92 OrganoChemical Industries v. India 93 and P.N. Roy v. Collector ofCustonzs. 94 In Maneka Gandhi case, Bhagwati J. observed :

... but it is to be remembered that in such case the

power is exercised by the Central Government itself

and it can safely be assumed that the Central

Government will exercise power in a reasonable and

responsible manner, when power is vested in a high

authority like the Central Government, abuse of

power cannot be lightly assumed and in any event if

there is abuse of power the arms of court are long

enough to reach it and strike it down.""

Mid in para 29.

A.I.R. 1962 S.C. 1371.

A.I.R. 1978 S.C. 597.

A.1 .R. 1979 S.C. 1803.

A.I.R. 1957 S.C. 648.

Supra n. 92 at p. 632.


In F.N. Roy v. Collector of Customs", the sections 167 and

183 of Sea Customs Act 1947 were challenged as conferring widediscretionary powers on the authority which is violative of Art.

14. The contention of the petitioner was that the word May inthe section conferred uncanalised power on the authority to pick

and choose. However the conferment was upheld on the groundthat the power was conferred on a high ranking officer. Similarly,

in Manoharlal v. State of Maharashtra", power conferred on anofficer not lower in rank than of Assistant Collector of Customsto refer a case to the magistrate for prosecution was upheld andin Accountant General v. S. Doraiswamy", power conferred on

comptroller and Auditor General was upheld. Both the abovedecisions were made on the grounds that power in both caseswere conferred on high ranking officers. The same approach isfollowed by the courts in recent cases. In Papanasam Labour

Union v. Madura Coats", Supreme Court upheld the validity ofS.25 M of Industrial Disputes Act. The Act was challenged asviolative of Art 19 and Art. 14 on the ground that it conferredarbitrary power on the authority to grant or refuse to grant thecontinuance of lay off. Negativing the contention the courtobserved "we feel satisfied, as the power in question would beexercised by a specific authority and as it can well as presumedthat the one is to be specified would be a high authority who

would be conscious of his duties and obligation. Similarly inState v. K.K. Jagtiani m while upholding the decision of author-

ity under S(5) of Prevention of Corruption Act the apex courtobserved with regard to high authorities:

Ibid.

A.I.R. 1971 S.C. 1511.

A.I.R. 1981 S.C. 783.

A.I.R. 1995 S.C. 2200.

100. A.I.R. 1996 S.C. 1910.


"The law presumes - and the court must also

presume until contrary is established, that such

authority will act fairly and objectively and will

accord sanction only where he is satisfied that the

charges against the public servant requires to be

enquired by the court". 100a

It is submitted that there cannot be an absolute presumption

that the public officials will discharge their duties honestly. This

point was highlighted by the Supreme Court itself in PannalalBhinraj case where court observed:

"This presumption however cannot be stretched too

far and cannot be carried to the extent of always

holding that there must be some undisclosed and

unknown reason for subjecting certain individuals

or corporation to hostile and discriminatory treat-

ment"'

Further in the modern system of polity were corruption has

become a way of life, blind belief in the efficiency, experience and

motives of the administrative authorities cannot be relied upon.

This fact is supported by judicial `° 2 decisions and juristic

opinions.' However some courts are reluctant to accept this

yet.

100a. Id. at p. 1914.

Supra n. 51. In Mohinder Singh Gill v. Chief Election Commis-sioner, A.I.R. 1978 S.C. 851, the Supreme Court warns that"wide discretion is fraught with tyrannical potential even in highpersonages."

Ibid.Jain & Jain observes in their book Principles of Administrative Law(1993) at page 375: "Sooner the courts discard the argument ofvalidating broad discretion because of the high rank of the donee ofthe power the better it is for the growth of administrativeIndia."


Myth of procedural safeguard

Presence of procedural safeguards'" in statutes conferringwide discretionary powers is considered by courts as a validground for upholding such conferment of power. In many ofsuch cases the Courts consider the requirement of quasi-judicialfunctions in the exercise of power along with other grounds likeconferment of power on high standing authority', 'presence ofguideline', etc, in examining the reasonableness of the statue.One of the earliest cases in this category is Hari v. DeputyCommissioner. m' In this case it was contended that S.57 of theBombay Police Act 1951 confers on the Commissioner of PoliceBombay or any other Commissioner appointed under S. (7) orDistrict magistrate the power to direct any person to removehimself outside the limits of Bombay and such powers arecapable of being used in an arbitrary manner and is thereforeviolative of Art. 19(1) d of the Constitution. The majority of thejudges upheld on the Act on the ground that the legislature hadprovided for procedural safeguard in the exercise of the power.'"

In Tika Ramp v. U.R 107 another case of the same year powerconferred on the Cane Commissioner under Sugar Cane Act 1953to reserve and assign any area for the supply of cane to a factorywas upheld by the Court on the ground that power given to theCommissioner was well defined and contained safeguards andwas hence not violative of Art. 14.1"

Procedural safe g uard here means the need to follow natural justiceprinciples like 'ri ght to hearing'. 'presence of appellate provisions'. etc.

A.I.R. 1956 S.C. 559.

The Court observed : "It is thus clear that in order to take preven-tive action under S. (57) of the Act the Legislature has entrustedthe police officers or the Magistrate of the higher rank to examinethe facts and circumstances of each case brought before them bycentral investigation department. But the legislature has providedcertain safeguards against tyrinnical or wholly unfounded order beingpassed by the ranks of police".

A.I.R. 1956 S.C. 676.

108. The Court considered the fact that the Act contained provisions ofappeal and that the Commissioner had to consider several factorslaid down in the rules before making determination.


In F.N. Roy v. Collector of Customs'" S.167 (8) of SeaCustoms Act 1878 which conferred on the customs authority thepower to decide the amount of penalty to be imposed was upheldon the basis of several grounds including the presence ofappellate provision and the requirement of quasi judicialproceedings. Similar approaches are seen in other cases likeJagadish Pandy v. Chancellor Bihar Universit y , TM0 OrganoChemical Industries v. India,'" Poovanmal v. Director Inspec-

tion.112

In some cases the Supreme Court read the procedural

requirement of hearing into a statue even if they are not expresslystated in order to save it from unconstitutionality. This approachwas adopted by the court in the Maneka Gandhi Case."' Here

S.10 (3)(c) of the Passport Act 1967 which authorised the CentralGovernment to impound a passport of person in public interestwas challenged as violative of Art. 14, conferring arbitrary power

on government. The Court, however, upheld, the law by readingthe requirement of natural justice into the Act.

A.I.R. 1968 S.C. 253.

In this case, S. 4 of Bihar State Universities Act 1962 conferred onthe Chancellor seemingly uncanalised power with respect toappointment, dismissal and removal of any teacher. The Sectionwas upheld by the court mainly on the ground that the Chancellorwould before passing the order receive the recommendation fromUniversity Service Commission which was bound to give a hearingto the person concerned. S. 14-B of the Employees ProvidentFund 1952 conferred power on Central Provident Fund Commis-sioner to recover from the employer such damages not exceeding amaximum limit as he may deem fit. The Court upheld this broaddiscretionary power on the ground that it was to be exercisedaccording to natural justice, and as such he has to make a speakingorder (A.I.R. 1979 S.C. 1603).

(1974) 93 I.T.R. 505.

A.I.R. 1978 S.C. 599.

Supra n. 92. Further many other grounds like vesting of power inhigh authorities, presence of guidelines were also considered bycourts in upholding the section.


The technique used by the Court in upholding statutes onthe ground of presence of quasi-judicial procedure can be

studied through the following cases. In Fedco v. Be/gran",

C1.9(a) of the Import (Control) Order 1955 was challenged asunconstitutional being violative of petitioner's right under

Art.19(1) (f) and (g) of the Constitution. Clause 9(a) provided

that the Central Government or any other officer authorised inthis behalf may cancel any licence granted under this order or

otherwise render ineffective (a) If the licence has been grantedthrough inadvertence or mistake or has been obtained by fraudor misrepresentation". Clause 10 provided that "applicant orlicensee is to be heard. No action shall be taken under C 1(7) (8)or (9) unless licensee/importer has been given a reasonableopportunity of being heard". The Section was upheld by major-ity of the Court on the ground that as the authority is bound tofollow natural justice principles by giving a reasonable opportu-nity of hearing . 15

In Mysore v. Bhatt° another important case in this category.Sections 3 & 9 1 " of the Mysore Slum Areas (Improvement andClearance) Act 1956 were challenged as violative of Art. 19(1)(f)

A.I.R. 1960 S.C. 415.

Id. at p. 421 per Das Gupta, J. for majority, Subba Rao, J.dissenting.

A.I.R. 1975 S.C. 596.

S. (3) where the Competent Authority upon report from itsofficers or other information in its possession is satisfied that (a)any area is or may become a source of danger to public health...., itmay by notification in official gazette declare such area as slumarea.

S. (9) gives power to Authority to declare any slum area as clear-ance area.

S. (12)(a) gives power to state government to acquire slum area.

S. (l2)(b) provides that before acquiring land State Governmentmay call upon owner or any other person to show cause why itshould not be acquired.

C.U.L.R

A. Manoj Krishna 311

and S.12(1) was challenged as violative of Art.14 of Constitution.S.(9) of the Act was invalidated by the Court as it contained noprovisions for hearing. The importance of 'hearing' was pointedout by the Court in its judgment.' S.12 of the Act however wasupheld by the Court as it contained provisions for hearing. TheCourt observed.

"As regard S.12 (1) (b), however, we do not agreewith the High Court that the power to acquire anyother land in any locality suffers from constitutionalobjections .... As the Section itself provides forcalling upon the owner or any other person inter-ested in the land to show cause why it should notbe acquired."'

In Dr. Khare v. State of Punjab' 20 , S.(4)(4) of the East PunjabSafety Act 1949 was challenged as unconstitutional on the groundthat it conferred on State Government wide discretionary powerswithout any guidelines to order externment of any persons from aspecified area if he was satisfied that the activities of the personwould be prejudicial to public. This conferment of seeminglyunlimited power was upheld by the Court on the ground that theAct contains several procedural safeguards like the right ofindividual to make a representation. Similarly Section 56 ofBombay Police Act 1951 which conferred wide powers on theauthority to extern a person was upheld''-' as the Act contained a

Supra n. 116 at p. 601 The Court observed: "... but if there is noprovision for hearing the affected person cannot bring to the noticeof the concerned authority that his binding is not fit for humanhabitation. There can be no two opinions about the need to hearthe affected interest parties before declaring an area to be a slumarea under S(3) or on areas as a clearance area under S. 9 or beforetaking action under section 10.

Ibid.

A.I.R. 1950 S.C. 211.

Bhagu Bhai v. Dist. Magistrate, A.I.R. 1956 S.C. 585.

312 Cochin University Law Review [ 1998]

provision for hearing the aggrieved persons. This approach ofupholding statutes on the ground that the impunged Act

contains several safeguards was followed by the courts in

several cases.'"

Conclusion

What comes out of this study is that conferment of verywide powers on the administration by the legislature is a danger

for the individual who is at the receiving end of this power. A

multipronged strategy has to be adopted to check the manifolddisadvantages and dangers of absolute discretion. The courtshave to assume responsibility in the area and should play a

positive role for the individual because the nexus between thelegislature and the executive headed by cabinet consisting ofleaders of majority party in the legislature will cause the legisla-

ture confer very wide powers to the administration.

In England the doctrine of sovereignty of the Parliamentprevents the English court from reviewing legislation and hencethe bestowal of discretion on administration cannot be challenged

there. In India the presence of fundamental rights under theConstitution provide an additional dimension of control ofadministration. In spite of the availability of several positive

aspects the judicial control of administrative discretion lacks in

its effectivenesse.

Indian courts have fettered their right to review legislation

conferring wide discretionary powers by stating that the courtswill not review conferment of power if some policy (even vague

122. In Mohd. lqbal v. Supdt. Central Jail, A.I.R. 1969 Del. 45; Baliahv. Rangachari, A.I.R. 1969 S.C. 70; Asst. Commissioner of UrbanLand Tax v. Buckingham Co., 1969 (2) S.C.C. 55; and Ram Rachpalv. Union, A.I.R. 1960 Punj. 436.


or inarticulate) is laid down by legislature or if some procedural

safeguards are provided by statue or if the power is conferred on

a high authority. In spite of juristic and academic criticism the

courts are not taking a bold stance in reviewing such legislations.

There are some few cases were some courts may shown the

courage to invalidate laws conferring wide discretionary powers.

Of late the general judicial trend is to take passive attitude

bordering on judicial inactivity relying on any of the above stated

grounds or all of them. In Papanasm Labour Union v. MaduraCoats , 123 while upholding wide powers conferred on authority to

grant or refuse lay off under section 25 of Industrial Disputes

Act, the Court relied on all the three propositions.

123. A.I.R. 1995 S.C. 2200, supra n. 99.

Legislative conferment of wide discretionary powers on the ...

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