CHAPTER - IV

ADMINISTRATIVE DISCRETION VIS-A-VIS

CONSTITUTIONAL PHILOSOPHY
I. Prelude

Strictly speaking, Constitution denotes a body of rules

governing the affairs of an organized group. ^ Aristotle opined that
Constitution means the organisation of the different offices of the
state. To him, Constitution of a country spells out the fundamental
principles on which state is organized. It lays down the structure of
political system under which its people are to be governed,
establishing thereby the main organs of the state, allocating to
them different powers, functions, responsibilities and their
relationships with each other and with the people. In nutshell.
Constitution of any country outlines the ultimate location of
sovereign power and regulates the exercise thereof. 2 To quote
Subhash C. Kashyap: "In a democracy, by definition, sovereignty
vests in the people. The people are their own masters and ideally
they govern themselves. But, except in a primordial or revolution
situation, sovereignty of people is merely an abstraction. Also, it
may apply a state of anarchy. People in a raw are nothing more
than a mob and absolute powers in their hands is like the vast
energy in wild mountainous river running down the hills in its full
force and fury, causing extensive damage and devastation. To

1 See for details the New Encyclopeadia Britannica, Vol. V, XV Edition,

(1981), p. 84.
2 Subhash C. Kashyap, Constitution of India, (2008), Vol. 1, p. 3.
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purposefully utilize that energy, river has to be tamed and

harnessed, dams have to be built and electricity produced has to
be controlled, properly channelized, and made useable. Sovereign
power cannot be usefully or safely exercised by unorganized people
or people without order. Therefore, Constitution is the dam that
institutionalises and gives shape and content to sovereignty. The
people need an institution and instrumentality for expressing and
employing their sovereign power and will.^

Constitution outlines the ground rules under which powers

are devolved or transferred by people to different organs and
functionaries of state. It delineates, delimits and distribute powers
between the organs of the state. Stephen Holmes has rightly
defined the Constitution as an indispensable instrument for any
government which paves path to monitor and control the
functioning of the trustees of the power of the people."*

A look at the Constitution of India discloses that the polity

opted by the people of India has been circumscribed by limited
government and rule of law as opposed to arbitrary, despotic,
authoritarian or totalitarian rule. The philosophy of rule of law as
envisaged in Part III of the Constitution under Article 14 excludes
the scope of arbitrary power.

The philosophy of rule of law, which is the comer stone of

our National Charter, has intended to subject the human conduct
to the governance of legal norms through the operation of the law

3 Ibid.
4 Encyclopaedia of Democracy, ed. by Lipset Seymour Martin, (1995), Vol. I,
p. 300.
 135

of the land.5 Fuller has evolved eight basic principles of the

doctrine of rule of law.^ Similarly, his spirit to govern the country
in accordance with the strict compliance of the constitutional
mandate is reflected in Third Schedule of our National Charter J
The Constitution of India postulates the pervasiveness of the spirit
of law throughout the whole range of governmental actions. To be
true, rule of law and Indian democracy are expected to go hand in
hand. The Apex Court has rightly observed that the administrative
or executive action that does not meet the standard will be set
aside. 8

It is quite evident from the Constitution of India that there

are three areas of assimilation of rule of law into the judicial
process,^ the most significant being the perennial dilemma of fixed
rule V. discretionary justice. What is true is that the Indian
judiciary has willfully structured the public trust theory which
obligates the trustee of the people's power to discharge their
discretion vested in them in accordance with the spirit of the law of
the land. 10 However, care has been taken in the Constitution to

5 Mathew H. Cramer, "One the Moral Status of the Rule of Law", Cambridge
Law Journal, March, 2004, Vol. 63, p. 65.
6 Id. The eight basic principles of rule of law formulated by Lon Fuller are:
(1) a system of governance operates through general norms;(2) they are
formulated to the people who are required to comply with them; (3) they
are prospective; (4) they are understandable and intelligible; (5) they do not
contradict one another; (6) they do not impose requirements that caiuiot
possibly be fulfilled;!?) they persist over substantial periods of time; and (8)
they are generally given effect in accordance with their terms.
7 For details see the Forms of Oaths or Affirmation contained in Part I to
VIII.
8 Chief Settlement Commissioner v. Om Prakash, AIR 1969 SC 33.
9 The first area is the concept, dear to Dicey's heart; of the doctrine of
separation of power under the Constitution of India. Second is the area of
personal liberty which the Indian courts have always held very high in the
constitutional scale of values. The third perennial dilemma of fixed rules v.
discretionary justice.
10 R. C. Ghiya, Memorial Lecture delivered at London on September 9, 1997.
 136

protect the domain of rule of law which has been treated as a basic
structure of the Constitution and which cannot be touched even by
way of the amendment to the Constitution. ^^

Although Constitution does nowhere excludes the

conferment of discretionary powers, yet it predicates that there is a
need to tighten the procedure though not abolishing the
discretionary power itself. There is no doubt that state today is the
biggest provider or largesse in exercise of discretionary powers.
However, the Constitution mandates that every state-action in
order to survive must not be susceptible to the vice of arbitration.
It is perhaps the crux of Article 14 and basic to the rule of law. It is
imperative that all actions of every public functionary, in whatever
sphere, are expected to be guided by reason and not humour,
whim caprice or personal predilection of the persons authorized
with the task on behalf of the state and exercise of all powers must
be for public good instead of being an abuse of the powers. 12

II. Viewpoints of Jurists on Rule of Law vis-a-vis

Administrative Discretion
Various jurists have expressed their viewpoints on the nexus
between rule of law and administrative discretion. Coke,
Blackstone, Dicey, Jennings, Jackson, Gamer, Wade Marshal,
Schwartz, and many others have endeavoured to explain the
domain of rule of law and the growing spectrum of administrative
discretion in the modem world.

11 Kashwanand Bharti v. State of Kerala, AIR 1973 SC 1461.

12 Shrilekha Vidyarthi v. State of UP, 1991 SCC (L&S) p. 742.
 137

Dicey used the phrase 'rule of law' for the first time in 187513
to describe a salient feature of the Constitution. He borrowed the
concept of 'rule of law' from W.E. Heam.i'* Besides, he also relied
upon the testimony of previous constitutional authorities - Coke
and Blackstone. His fear of discretionary power formed the most
important corollary to the first element in the rule of law. He
equated discretion with arbitrariness and was firmly of the
viewpoint that vesting of discretionary powers in the government
must mean insecurity for legal freedom to the part of its subjects, ^s
He believed that discretionary authorities are oppressive, caprice,
despotic and entail the rule of lawlessness. ^^ He philosophized that
no man was above law, every man, whatever his rank or status
was subject to the law of the land. Every governmental official, he
believed, shared the same responsibility for his acts as did every
ordinary citizen. To him, though some officials incurred by virtue
of their office legal liabilities from which other citizens were
exempt, they could not because of that fact avoid the legal
obligation borne by all citizens. ^'^

Dicey equated rule of law with the predominance of the legal

spirit. For him, right of citizenry proceeded from the general
principles of the Constitution. ^^ He contrasted rule of law with the
system of administration law prevailing in France. He, to avoid the
abuses of administrative law, pioneered a method of legal analysis.
The cardinal principle on which he worked out his thesis was that

13 A. V. Dicey, Stubbs' Constitutional History of Great Britain, Nation 20 {4th

March 1875); 154, also see A. V. Dicey, The Rule of Law, (1980), p. 67.
14 A. V. Dicey, op. cit, p. 67.
15 For details see, A. V. Dicey, Law of the Constitution, (First ed.), pp.202-
203.
16 A. V. Dicey, The Rule of Law, (1980), p. 79.
17 Ibid.
18 Id., at 79.
 138

no official who has illegally interferred with the liberty of a citizen,

might plead that he had merely followed the orders of a superior,
for, each beaurocrat was individually responsible for his decision. ^^
He feared that arbitrary legal system was always fatal to the rule of
law.

Ivor Jenning did not find favour with the philosophy of rule
of law propounded by A. V. Dicey.^o He concluded that rule of law
did not signify that Dicey had hoped about the supremacy of law.
He argued that Dicey defined liberty only in the negative sense of
freedom from the government interference. His thought, Jenning
claimed, to be highly idealistic, though sounding high yet
impractical in functional aspect of the society. While criticizing
Dicey, Jenning claimed that the Diecyian philosophy of rule of law
embodied a traditional concept, signifying freedom from arbitrary
government activity in every sphere of life.

Jenning viewed that government need to be clothed with

discretionary power as a cure to social problems.21 He reflects a
positive liberalism favouring the governmental intervention to
uphold the expectations of the people documented in the law of the
land. Thus, many expectations to the rule of law, according to
Jenning, were really the expectations that proved the rule, no
examples destructive of the rule of law itself.22 To be true, critics
find the rule of law as a protection against the arbitrariness of the
state action possible with the growth of government intervention in
the day-to-day activities of its citizen. Contrary to the Diecyiam

19 Id., at 80; also see Duncan v. Jones, (1936) 1 KB 218; cited in D. L. Kier
and F. H. Lawson, Cases in Constitutional Law (1st ed.), pp.203-07.
20 Jenning, Law and Constitution (1st ed.), pp. 54-62, 305-317.
21 For detsdls see, H. W. R. Wade, Quassi-Judicial and its Background,
Cambridge Law Journal, 10 (1949), pp. 216-240.
22 Ibid.
 139

viewpoint, the recent critics argue that the rule of law articulates a
basic idea which aims at protecting the individual from arbitrary
govemment.23

Modem authorities invest the concept of rule of law with a

varieties of meaning beyond Dicey's dreams. They believe that the
philosophy of rule of law needs to be liberalised and expanded
evolving all answers to the problems arising out of the constitution
of a welfare society. What is needed is that the actions of the State
must be based on end traceable back to ultimate source of legal
authority.24 The modem jurists endeavour to regeird the rule of law
as a fine sonorous phrase and feel that nile of law must be
understood in the global background having its universal
validity.25

J. F. Gamer, while empounding the philosophy of modem

administrative law suggests that 'rule of law' become the new
natural law, a normative ideal towards which all legal systems
should strive.26 The eminent jurist J. F. Gamer has vehemently
criticized A. V, Dicey sajdng that discretionary government
authorities necessarily lead to diminution of individual freedom.
Gamer believes that the discretionary powers restrained by law
need not be arbitrary. 27 The thinkers envisioned the spectrum of
'rule of law' in two perspective viz. theoretical and practical. To

23 For details see Wade and Bradley, Constitutional Law, (Eighth ed., 1970),
p. 17.
24 Norman S. Marsh, T h e Rule of Law as a Supra-National Concept in A. G.
Guest," ed., Oxford Essays in Jurisprudence (1st ed.), p. 248.
25 O. D. Schriener, The Contribution of English Law to South Africa Law and
the Rule of Law in South Africa, (1971), p. 84.
26 For details see J. F. Gamer, Administrative Law, (1970), p. 179.
27 A. V. Dicey, The Rule of Law, op. cit., p. 85.
 140

them rule of law must find favour and have concurrence

theoretical as well as in practice.^s

Schwartz, while agreeing with a viewpoint of Gamer on

conferment of discretionary powers on administrative authorities,
illustrates the fact that the administrative law is now at a turning
point. We seem to be moving towards new period in the field of
administrative law whose essential contours are not yet clear. The
modem administrative set u p has furnished answers to the
question that who will regulate the regulators.29 He supports
Gamer on the point of conferring discretionary power on the
administrative authorities.^^ To him, the administrative process
has too often proved even more expensive and time consuming.
The administrative process, which had once been vigrous in
fighting for public interest, appear to have become an established
part of the status quo cherished by the political system. To quote
him, "who will regulate the regulators? Our system has not given
any answer. He believes that administrative process is expanding
day by day and that has not prevented the continuing expansion of
administrative powers. Disability, welfare, aid to dependent
children, health care, imparting education, old age care,
environmental matters have given sharp rise to new agencies with
expanded vast discretionary powers. The law has intended to press
these newer areas into the judicialised mould of the regulatory
process.3i While commenting on the enforcement of vast
discretionary power on administrative agencies, Schwartz wants

28 A. V. Dicey, The Rule of Law, op. cit., p. 86.

29 For details see Schwartz, Administrative Law, (1976), p. 23.
30 Ibid.
31 Id., at pp. 23-24.
 141

that the review of discretion is an essential feature of a system

which purports to be governed by rule of law.32

Similarly, justice Doughlas, while sharing his viewpoint on

conferment of discretionary power with Schwartz, admits "control
of discretion is always crucial to effective judicial review. Since
discretion is at the heart of agency power, the administrative law is
all about the control of discretion.''33 He lays emphasis on the fact
that absolute discretion is a ruthless master; it is more destructive
of freedom than any of man's other invention.^^ Schwartz
concludes that a sure test by which we can judge the effectiveness
of a system of administrative law is the extent to which it permits
judicial review of discretion. The need is to restrain the abuses of
discretionary powers. It is perhaps with this point in mind that the
House of Lords has rejected the idea of unfettered administrative
discretion in Britain. It is the reviewing court which must ensure
that action taken is not wholly dependent upon the personal will of
the administrator.35

Prof. Wade, while agreeing with Garner and Jenning on the

need of clothing administrative agencies with discretionary power
in the backdrop of establishment of welfare state, opines that there
is always a presumption that, even though widely defined, have
always some ascertainable limits, and that Parliament is unlikely
to intend the executive to be the judge of the extent of its power'
therefore, there is always an implied presumption that powers are
given for some particular purpose, hence exercise of such power for

32 Id., at p. 607.
33 Id., at p. 606.
34 For details see the dissenting opinion of Justice Doughlas expressed in a
landmark case titled as Untied States v. Wunderlich, 342 US 98, 101
(1951).
35 Lennon v. United States, 387 F.Supp.561, 564 (S.D.N.Y., 1975).
 142

any other purpose will be illegal. What is apparent is that the court
must always take care not to usurp the discretion but find out
ways and means to apply it for the purpose for which it is intended
to by the law of the land. The court's concern is with the legality of
what is done. Unlike Dicey, Wade believes that it is not every
mistake which affects legality. It is the essence of discretion that it
involves the power to make mistake. He warns the courts and
predicates that the court has, therefore, to draw a line between the
mistake made intra-vires and mistake made ultra-vires.^6

III. Theory of Guided Power

The conferment of discretionary power in the hands of

administration is not only well recognized, but also considered as
essential for effective administration. Frankly admitting, existence
of a discretionary power and exercise thereof by a public
functionary has gradually assumed great importance. The judiciary
has given recognition to the fact that the conferment of the
discretionary power nowhere transgresses the domain of rule of
law.s"^ It is a recognised fact that today no administration can
function without discretion.3^ it has been very much felt that
discretion provides flexibility and particularization in the
administration. In modern times, administrative authorities are
given discretionary powers of regulation in many areas. Generally,
it has been found that courts are reluctant to interfere with
administrative discretion.39 The courts have ruled that resting of
discretionary power in the hands of administration is not always

36 H. W. R. Wade, Administrative Law, (1971), pp. 70-71.

37 Chairman, JSsK State Board of Education v. Feyaz Ahmad Malik, (2000) 3
s e c 59.
38 K. L. Gupta v. The Bombay Municipal Corporation, (1968) 1 SCR 274 at
297.
39 For details see Annual Survey of India Law, (1971), p. 220.
 143

necessarily discriminatory, and that abuse of power cannot be

easily assumed. The glance at the landmark case of Centre for
Public Interest Litigation v. Union of India,'**' reveals that the
presumption is that public officials would discharge their duty
honestly and in accordance with rule of law.^^^ Courts presume that
every conferment of discretionary power is preceded by guidelines
which would regulate the exercise of such discretion.^^2

The necessity of conferring discretionary power on

administrative authorities airises because of the fact that no
legislative body can be expected to possess 'Trikala Gnana'."^^ The
legislature can only lay down the legislative policies in broad terms
and seek its accomplishment through collaboration of its experts
in administration.'*'* This is so, because, it is impossible for it to lay
down apt and efficacious standard which could force and govern
all the varied situations that would arise at the stage of execution
of the legislative policy embodied in the legislative enactment.
Therefore, it becomes imperative and unavoidable for the
legislature to confer discretionary powers on the administrative
body. The truth is that the executants are armed with statutory
discretion so that they can translate the legislative intent, policy
and objectives into action. The repository is expected to act as a
trustee and exercises discretionary powers for the purposes, they
are intended to by the legislative body.'*^ That is why it is said the
"such powers cannot be prostituted for ulterior purposes.'"*^ The

40 (1995) Supp 3 s e c 382.

41 For details see Annual Survey of Indian Law, (2000), Vol. XXXVI, p. 3.
42 Ibid.
43 Journal of Indian Law Institute, 1990, Vol. XXXII, p. 7.
44 Ibid.
45 Ibid.
46 A. T. Markose, Judicial Control of Administrative Action in India, (1956),
p. 421; also see H. W. R. Wade, Administrative Law, (1982), pp. 70-77.
 144

executive is always accountable to the legislative body for each and

every actions under the enactment.

It is imperative to submit here that the legislature is always

under an obligation to articulate a clear-cut statutory intent,
purpose, policy and objectives. Failure of this duty can certainly
provide a fertile ground for breeding arbitrariness, culminating
ultimately in administrative despotism.'*'^ Legislative authority is
always expected to confer the discretion with the intent that it
should be used to promote the policy and objects of the Act. It is
expected that a person in whom is vested the discretion must
exercise his discretion upon reasonable grounds. A discretion does
not empower a man what he likes merely because he is minded to
do so. . . H e must in exercise of his discretion do what he likes but
what he o u g h t . . .He must act reasonably."^^

Discretionary power by itself is no evil but it is also equally

true that it gives much room for its misuse. There is no denying
the fact that discretion is always a rule free area where power is
exercised by the administrative authorities on subjective
satisfaction. As law cannot visualize every eventuality and make
provision for it, hence, it is inevitable for the legislative authority to
invest the administration with discretionary powers. It cannot
however, be denied that the discretion in the hands of
administration may breed despotism., ignoring the purpose for
which the powers are delegated. Remedy, therefore, lies not in the
abolition of the power itself but in tightening the procedure. There

47 For details see, Surya Prakash, Parliament : Who will Stem the Rot,
Indian Express, April 16, 1989; also see Journal of Indian Institute, 1990,
Vol. XXXII, Part I, p. 8.
48 Robert V. Hopewood, (1925), AC 378 at 613, quoted in Wade, The
Administrative Law, (1982), p. 355.
 145

is a need to develop parameters for proper exercise of discretionary

powers. It is for the judiciary to assure that the repositories are
forced to exercise the discretion in the open, fair and honest
manner.

The scrutiny of cases discloses that there has been a sea

change in the attitude of courts, particularly Supreme Court, since
1950s when the court ruled that a discretionary power is not
necessarily discriminatory and that abuse of power to be easily
assumed where the discretion is vested in the government not in
minor official.'•^ The view point contained in Shiv Sagar Tiwari v.
Union of India,5o would show that the Apex Court has apparently
differed from its earlier stand as regards the presumption against
abuse of such power vested in high authority. However, it may be
noticed here that the courts not laying down the precise scope or
extent of judicial review in matter relating to exercise of
discretionary power by public authorities. What is imperative is
that the Apex Court has fearlessly highlighted the gross abuse of
discretionary powers and endeavoured to rectify the evil by carving
out comprehensive discretion with a warning that all the public
functionaries would so act that the meeting with destiny really sees
the dawn of an era of hope for alL^i

The court in Chintalingam v. Govt, of India,52 turned down

the old rule that public office would discharge their duty honestly
and in accordance with the rule of law. While discouraging the rule
of presumption of honesty of the public officials, the court evolved

49 Mattajog v. H. C. Bhari, (1955) SCR 925 at 932.

50 (1997) 1 s e c 444.
51 Supra note 50, p.448; also see Padfield v. Minister of Agriculture, Fisheries
and Food, 1968 AC 997; and United States v. Winderlitch, 342 US 98; 98
E E d . 113(1951).
52 AIR 1971 SC 474.
 146

two basic principles to guide the discretionary powers, "one that

the public officials are always required to discharge their duties
honestly and strictly in accordance with rule of law; two the
aggrieved party has a right, even though no provision has been
made under the law, there is no bar for an aggrieved party
approaching the state government by means of a representation for
a final decision in case of the abuse of discretionary power by the
concerned officer. The Apex Court rejected the theory of high
officials stating clearly that discretionary powers may be abused by
both high or law ranked officials and therefore, no exception can
be made in favour of the high ranked officers.^^

The HonTDle High Court of Andhra Pradesh laid emphasis on

the fact that necessary guidance for the exercise of discretionary
powers was must. No authority can give unbridled discretionary
powers o the officers in any of the circumstances whatsoever it
may be.^^ The court held that there was no exiomatic rule that
discretion, if wide, should always be entrusted only to highly
placed officials. Emergent situation may arise necessitating such
requisitioning and the officers on the spot must be entrusted with
the power to deal with such situation immediately. The court
added that discretion given to the authority has necessarily to be
wide. It is a matter of common knowledge that it is essential that
authorities should be armed with necessary power to deal with
emergent situation arising out of any causes. Since the causes are
many and cannot be foreseen, the discretion given to the
authorities has to be wide. However, the court held that the
discretion is always to be exercised for the purpose intended to by

53 For details see Annual Survey of Indian Law, 1971, p. 221.

54 U. E. Chaudhary v. State, AIR 1974 AP 96, also see AIR 1954 SC 307.
 147

the legislators in the parent Act.^s The plea taken by the Ld.
Counsel in Y. E. Chaudhaiy v. State that wide discretionary
powers given to the high officials he held as legal. While rejecting
this argument the HonTDle court justified the conferment of
discretionary power given to the low ranked officers with the
reasons that the officers of lower rank are also to deal with
unforeseen situation immediately. Non-conferment of powers on
them m.ay create great mischief and havoc. The court while
upholding validity of clause (3) of Andhra Pradesh Paddy and Rice
(Requisitioning of Socks) Order, 1966, concluded that the clause
(3) was not void either for the reasons that it conferred unguided
discretion on the authorities or for the reason that the discretion
was not confined to highest echelons of powers.^e

HonTale Justice, P. Krishna Reddy, while relying on the

decision of the Madras High Court in State of Madras v. Shri
Vanamamalai Math,^^ observed that where there was no standard
to guide discretion, the officers courts say it was justified by the
law which gave him discretion. To exercise discretion unregulated
by any policy of standard can provide a cloak for the malevolent,
the misinformed or the corrupt. There is nothing to judge whether
the law is followed, there is wide room to exercise privilege, show
favouritism, wreak vengeance or spite and still within the letter of
law. It will be difficult for the affected to establish the irrelevancies
which has led his being singled out.^^

Uncontrolled discretion, besides being unreasonable, is

destructive of the principle of equality before law or equal

55 Id., p. 97, para 3.

56 Id., p. 98, para 3.
57 (1969) 2 Madras Law Journal 324.
58 Id.,p98.
 148

protection of law. The fact is that democratic methods are always

irksome to the over jealous administrator and equally to the few
who can command and more irksome to privileged who may hope
to gain by unbridled and unjustified power vested in few.59

The HonlDle Justice P. Krishna Reddy held that over jealous

administrators and undesirable results are apt to mislead if made
without reference to the situation which the conferment of
discretion is designed to meet.^o

Prof. Willis, while considering the question in United States

in connection with the equality clause of the 14^ Amendment to
the United States Constitution, has held that equality is not
violated by the mere conference of unguided power. The equality
clause is bound to be violated by its exercise by those upon whom
conferred. If a statute declares a definite policy, there is sufficiently
definite standard for the rule against the delegation of legislative
power and also for equality if the standard is reasonable. If no
standard is set up, those exercising of powers must act as though
they were administering a valid standard. There is no reason for
striking down a provision because it confers unguided powers, if
the power has not been exercised at all or infact, the person
exercising the power has acted on a reasonable standard.^i

The trend of cases62 decided by the Apex Court reveals that

the judiciary has always found favour in conferring powers on the

59 Ibid.
60 Ibid.
61 For details see H. M. Seervai, Constitutional Law of India, 92008), Vol. I,
p. 548.
62 For details see, Chitalingam v. Govt, of India, AIR 1971 SC 474; Swarka
Prasad v. State of UP, AIR 1954 SC 224; K. . Gupta v. Bombay Municipal
Corporation, AIR 968 SC 303; Panna Lai Binjraj v. Union of India, AIR
1957 SC 399; Chitraduytga Dist. Co-op. Central Bank v. State, AIR 1971
 149

administrative bodies subject to the condition that where power

was conferred upon the State Government or any such authority to
be exercised in certain circumstances, the conferment of power in
itself carried with it the duty to act reasonably so as to subserve
the object with which the power was conferred. The reason for
subscribing to the idea of conferring discretionary power is that it
is not possible to foresee every situation or to envisage every
contingency. The courts appear to have justified conference of
discretionary powers on the executive to exempt the repositories
from all or any of the provisions of the law.^^ jn respect of laws
which disclose a policy, the courts insist that such a power must
be exercised in the light of a policy and the mere conferment of
discretionary power would not invalidate that power. In case the
power is exercised according to rule the courts have upheld the
exercise of that power.^^

It is submitted that the views of the Apex Court reflected in

the cases decided from time to time indicate that court have always
upheld the theory of conferment of discretionary powers in view of
the necessity of the contingency. The glance of Supreme Court
decisions before and after the Moopil Nair v. State of Kerala,65
show that the court has upheld the theory of conferment of
discretionary power if there were well defined guidelines for its
exercise and the power had been intended to be used to further the

Masore 37; Barium Chemicals Ld. v. Company Law Board, AIR 1967 SC
295; Rampur Distillery v. Company Law Board, AIR 1970 SC 1789;Rohtas
Industries v. S. D. Agarwal, AIR 1969 SC 707; Sheonath v. Appellate
Assistant Commissioner, AIR 1971 SC 2451.
63 Ibid.
64 F. N. Balsara v. Bombay, (1951) SCR 682.
65 (1961) 3 SCR 77.
 150

policy and purpose of the Act.^e It is evident that the courts have
shown its inclination to uphold the validity of the statutory
provision by taking a restrictive view of the ambit of discretion
conferred.

The judiciary has ruled that discretion is an unavoidable

evil which breeds corruption, nepotism because it is a law free
zone and is based on the subjective satisfaction of the
administrative authority.^'^ The Apex Court has rejected the theory
of unlimited discretion holding that there was no such thing as
unlimited discretion vested with any judicial or quasi-judicial
forum. It has held that an unlimited discretion was a sworn enemy
of rule of law ordained by the National Charter. An unlimited
discretion leads to unreasonableness. No authority has any power
to exercise discretion vested in its unless the same is on justifiable
ground supported by acceptable material and reason thereof.^^
While elaborating the scope of the power of judicial review of
administrative action, the Apex Court held that discretionary
powers of administrative authority must act in a bonafide
manner.69

It may be submitted here that every discretionary power is

not necessarily discriminatory violative of the rule of law. Equality
is not violated by mere conferment of discretionary power. The
equality clause and the spirit of rule of law are said to be violative
when the discretionary powers are exercised arbitrarily. This is the
theory of guided power. It explains that court must intervene when

66 P. J. Irani v. Madras, (1962) 2 SCR 169; Sirdar Indir Singh v. Rajasthan,

(1967) SCR 605.
67 Annual Survey of Indian Law, 2005, Vol. XLI, p. 11.
68 Bharat Heavy Electricals Ltd. v. M. Chander Shekhar Reddy, (2005) 2 SCC
481.
69 NCT of Delhi v. Sanjeev, (2005) 5 SCC 181.
 151

the executive authority exercises the discretionary power vested in

it arbitrarily^o and that discretionary powers must be exercised
keeping in view the purpose for which it is conferred and the
objects sought to be achieved'^i

IV. Constitutional Philosophy of Welfare State vis-a-vis

Administrative Discretion
A careful examination of the Constitution of India shows that
the wise founding fathers have intended to establish a welfare
society securing a social order for the promotion of the welfare of
its people. Article 38 of the Constitution of India envisages that the
State shall strive to promote the welfare of the people by securing
and protecting as effectively as it may a social order in which
justice, social, economic and political, shall inform all the
institutions of national life. Clause (2) of Article 38 obligates the
State to put efforts to minimize the inequalities in income, and
endeavours to eliminate inequalities, in status, facilities and
opportunities not only amongst individuals but also among groups
of people arising different areas or engaged in different vocations.'^^

The objectives contained in Article 39 makes it amply clear

that it is the duty of the state to ensure for its people adequate
means of livelihood, fair distribution of wealth, equal pay for equal
work and protection for children and labour. ^3 A reading into
Articles 38 and 39 with the Preamble of the Constitution would
show that the framers of the Constitution intended to build a

70 M. Nagara v. Union of India, AIR 2007 SC 71 at 101, para 107.

71 Clariant International Ltd. v. Security and Exchange Board of India, (2004)
8 s e c 524.
72 For details see Constitution of India, Art. 38; also see Aashiriwad v. Union
of India, (2007) SCC 624.
73 Id., Article 39.
 152

welfare society and an egalitarian social order where it could be

possible to reap the benefits of the freedom in its true perspective.

The resolve contained in the Preamble read with Article 38

and 39 would show that the framers of tJie Constitution of India
have intended to establish a duty-based society. It postulates not
only the duty of the legislators but also of the administrators
towards the society to function in such a way that it becomes
possible to cherish the dreams of welfare society where all would
be benefitted under the shadow of the law of the land. All the
organs of the State have been subjected to the duties to uphold the
spirit of law in the process of governance of the country. The
Constitution of India seeks to establish a concept of rule of law
freed from the arbitrariness of human will. The concept of
absolutism has been rejected and the supremacy of rule of law has
been declared in letter and spirit as the cardinal principle for the
governance of Indian society. Article 14 of the Constitution clearly
mandates the principle of equality in the governance of the State.
The basic philosophy that for the good of the greater number,
interest of individuals or smaller groups should be subordinated
and sacrificed to the extent necessary is deeply embedded in letter
and form of the formulation of our National Charter. This aspect is
evident from various provisions of the law of the land.'^'*

It is thus evident that the duties of the modem welfare state

as cherished under the Constitution of India, are first to legislate
for the purpose of ensuring social, economic and political justice,
second to provide essential services to the society through its
departments or though its instrumentalities by way of

74 For details see Constitution of India, The Preamble, Part III and Part IV.
 153

implementing the policies and programmes as directed by the

Constitution and the law, thirdly to regulate and control the
activities of the individued in every relevant sphere to subserve
common good, and fourthly ensuring of justice as between
individual and individual and between individual and the stateJ^
The instrumentalities of the state have been put under obligation
and entrusted with the duties and responsibilities to implement
the spirit of the establishing welfare society as envisaged by the
framers of the Constitution under National Charter. To be true, a
Constitution of India constitutes the blue print or master plan for
the all round development of the individual and different sections
of the society. The instrumentalities of the State are not only to
enforce obedience of the law against individual but also conform to
the law in all its actions for the purpose of ensuring equality,
welfare and happiness of people J^

The Constitution of India defines the position and powers of

the three organs of the state. It is a fundamental document which
not merely creates the organ of the state but also limits their
authority, because, the organs of the state may breed a complete
tyranny and oppression if no limit is fixed to curb their authority.
To quote Justice Gajendragaddear, former Chief Justice of India:

In a democratic country like India which is governed

by written Constitution, supremacy can be legitimately
claimed by the Constitution. It is the Constitution
which is paramount, which is the law of the land,
which confers on the Parliament and State
legislatures, the executive and judiciary their
respective powers, assigns to them their respective

75 Rama Joes, Seeds of Modem Public Law in Ancient Indian Jurisprudence,

(2000), p.3.
76 Id., pp.3-4.
 154

functions and prescribe limits within which, the said

powers and functions can be legitimately discharged.'^''
The Constitution of India not only declares the supremacy of
law but also principle of rule of law which proclaims that nothing
is parallel to it and presupposes that all the powers vested in the
three organs of the state are to be exercised in accordance with the
spirit of rule of law, for without it the law in its enforcement
through the instrumentalities of the state would only be a n
illusion. It is submitted here that the supremacy of the rule of law
has emerged in the form, of constitutional supremacy which forms
the foundation of our democratic state.^^

The provisions'^^ of the Constitution of India dealing with the

coronation oath of the assumption of the public offices are bound
to take solemn vow to secure welfare of all the subjects of the
realm without any discrimination and provide happiness and
prosperity to the subjects. The significance of taking oath before
assuming office lies in the fact that they would abide by the
Constitution and the laws in the governance of the country to
promote welfare of all the subjects in the realm so that the
cherished goal of welfare state is accomplished. It is needless to
state that the charter and discipline insisted in respect of the
repositories of the powers by the constitution of India applies with
equal force to all the persons who come to exercise the political
and administrative power under the government, if the people are
to be really benefitted.^o

77 Quoted in 46th Report of the Law Commission, p. 3, para 7.

78 Rama Joes, op. cit; pp. 23-28.
79 For details see Constitution of India, Arts. 60, 69 and 159 read with III
Schedule to the Constitution.
80 Rama Joes, op. cit., p. 28.
 155

What is evident from the provisions of the Constitution is the

welfare of the people has been declared as the chief concern of the
state and duty has been cast on every officers and servants to work
for the happiness and welfare of the people. The task to find out
the existence of a perfect law and order in the country without fear
have been assigned to the judiciary. The Supreme Court has
rightly observed in the landmark case of Ghulam Sarwar v. Union
of India,8i that safeguard against the abuse of power under the
Constitution is the good sense of the executive.

It is evident from the study of the Constitution of India that

ensuring the welfare of the people is the quintessence of the rule of
law which can be achieved only by having the laws regulating the
conduct of individuals and their enforcement through the officers
and the servants of the State.^2

It may be submitted here that the aim of establishing welfare

state would be merely an empty slogan unless the supremacy of
law enshrined in our National Charter is adhered to strictly. What
is required is that all governmental actions should conform to the
rules fixed and announced before hand to ensure certainty in their
behaviour, which could be foreseen by citizens thereby enabling
them to plan their individual affairs on the basis of their
knowledge.83 The administrative agencies of the government are
required to conform their activities to legal rules and procedure
developed and applied by the courts. Truly speaking, the
supremacy of law denotes in clear-cut terms the absence of
arbitrary powers. The constitutionality of administrative action is

81 AIR 1967 SC 1335.

82 For details see Constitution of India, Part XIV, Articles 318-313.
83 Friedrick, A Hayek, Road to Serfdom, cited by K. C. Davis, Administrative
Law and Government (1st ed.), p. 49.
 156

upheld subject to some minimum judicial review when the rights of

the people are at stake, thereby harmonizing between the
supremacy of law and discretionary powers of the government.

It is now well settled that a very wide latitude is available to

the conferment of discretionary powers on the administrative
authorities. Having regarding to the mushroom growth of welfare
activities, the investment of discretionary power with the
administrative agencies have been recognised without any
exception. Industrialization, urbanization, freedom of person and
property, respect for contract, movement for status to contract
have given birth to problems which could not be neglected by the
state. The notion of welfare society has compelled the State to
enact welfare legislations in abundance for agrarian reforms,
upliftment of labourer, regulation of industrial and economic
enterprises. Moreover, tremendous increase in state activities
under the slogan of welfare state and the popular demand for
equitable distribution of social benefits have gradually necessitated
to confer more and more discretion on the administrative agencies
to discharge their functions effectively. What is desirable is that
the vast bulk of perplexing problems can be solved by the experts
rather than by ordinary brains who are not equipped by their
training to make decisions upon technical questions of great
complexities. It is submitted here that in this background
conferring of discretionary powers on the administrative agencies
has become almost inevitable. The complicated issues involving
safety measures in coal mines, summary abatement of public
measures which endangers the public health or safety are the
subjects where immediate action is necessary. To find answers to
these complicated issues in befitting manner administrative
 157

agencies need discretionary powers to provide immediate solution

to the problems.

V. Constitutional Philosophy of Rule of Law

The Constitution of India lays down a cardinal principle of

governance which affords no sanction for the exercise of arbitrary
powers by authorities set up thereunder.^'* This principle is
popularly known as the rule of law. To be true, a rule of reason,
rule against arbitrariness and discrimination, rule of fair play and
natural justice are cardinal components of rule of law.^s

A look at the Constitution of India shows that rule of law is a

basic requirement which postulates that equality before the law or
equal protection of the laws is required by the state to ensure that
every person in India feel secured against the arbitrary exercise of
power by the state. The rule of law aims at providing for a system
which secures to its citizen adequate procedure for the redress of
their grievances against the state. The rule of law pervades the
entire field of administration and regulate every organ of the state.
It obligates the instrumentalities of the state to discharge their
functions in just and fair manner.^^ The absence of arbitrary power
is the first essential ingredient of the rule of law which implies that
the discretion, when conferred upon executive authorities, must be
confined within the clearly defined limits.^7

84 Annual Survey of Indian Law, 1972, p.242.

85 Annual Survey of Indian Law, 1990, Vol. XXVI, p. 365.
86 Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2295; S. P. Gupta v.
Union of India, AIR 1982 SC 149; P. Saba Murthy v. State of A. P., AIR
1987 SC 663; Madhwa v. State of Bihar, AIR 1987 SC 579; A. K. Kraipali v.
Union of India, (1969) 2 SCC 262 at 269.
87 S. G. Jaisinghani v. Union of India, AIR 1969 SC 1427 at 1433.
 158

The concept of rule of law is correlated to the basic postulate

of equality before law which guarantees that justice should not
only be done but it must also be seen to be done.^s while
elaborating the scope of rule of law Justice Miller has thrown light
on the scope of rule of law. To quote him:

No man . . . is so high that he is above the law. No

officer of the law may set that law at defiance with
impunity. All the officers of the Government from the
highest to the lowest are the creatures of the law and
are bound to obey it.89
There is no den3dng the fact that the whole generation of the
modem world owes to the concept of the rule of law, to the thesis
of Dicey especially for its three meanings as interpreted by him.^o
For him, the rule of law meaint "the absolute supremacy of pre-
dominance or regular law as opposed to the influence of arbitrary
power and excludes the existence of arbitrariness, or prerogative or
even wide discretionary authority on the part of the govemment.^i
He firmly asserted that wherever there was discretion, there was
room for arbitrariness which led to insecurity of legal freedom of
the citizen.92 HQ ignored the privileges and immunities enjoyed by
the Crown and the Government under the cover of constitutional
maxim that the Icing can do no wrong'. To him, the statutes which
conferred discretionary powers on the executive defied the spirit of
rule of law for it could not be called in question in ordinary court of
law.93 It is under the guise of rule of law that Dicey could not

88 Dalmia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104 (Para
18).
89 Quoted in P. C. Jain, Administrative Adjudication : A CompEirative of
France, UK, USA and India, (1981), p. 158.
90 A. V. Dicey, Law of the Constitution, (8th ed.), p. 183.
91 Id., p. 198.
92 M. P. Jain and S. N. Jain, Principles of Administrative Law, (2005), p. 14.
93 Ibid.
 159

appreciate the growth of administrative law in England. The

concept of rule of law, for Dicey, meant to curb the government's
power and to keep it within bounds.^'* Dicey opined that the
principle implicit in the rule of law denotes that the executive must
act under the law, and not by its own decree. He believed that
executive does not have powers of its own but all its power flow
and emanate from the law of the land.^^ He insisted on the absence
not only of arbitrary but even of wide discretionary powers.

It may be submitted here that the deep analysis of Dicey's

rule of law establishes three basic rules with regard to the
governance in England:

(1) That only ordinary courts by their ordinary legal mgmner, as

opposed to administrative courts and their procedure,
should adjudicate upon any distinct breach of law on the
basis of which only, a person might be punished or be
required to pay damages.^^
(2) That the executive is not immune from the subjection of the
ordinary law of the land administered by the ordinary law
courts (as opposed to administrative law and administrative
courts).97
(3) That individual rights and liberties are secured only by the
remedies afforded to citizen by the judiciary and not by their
declaration in the Constitution.^^

He propagated the viewpoint that wide discretionary powers

ought not to be given to administrative authorities as according to

94 Id., p. 16.
95 Ibid.
96 A. V. Dicey, op. cit., pp. 183-184.
97 Id., pp. 189-190.
98 Id., pp. 191-197.
 160

him it amounted to an invasion of rule of law. He expounded that

rule of law implies, "a government of laws and not of men.'^^ Like
Dicey, Dickinson was of the opinion that supremacy of law
requires adjudication of citizens' right in a regular common law
court and the facilities of challenging any administrative act in
such court. 100

Prof. Wade, while expanding the scope of rule of law, unlike

Dicey, propagated that the government under the rule of law
demands proper legal limits on the exercise of powers conferred on
the administration. The rule of law requires that power must first
be approved by the legislature and must then be granted by
legislature within definable limits. These limits must be consistent
with the fundamental some principles of natural justice so that a
standard is imposed on the administration which commands itself
to public conscience. He believes that the instinct for justice must
be allowed to infuse the work of executive government, just as it
must infuse the work of Parliament and the works of the court.loi
Prof. Wade while differing with A. V. Dicey on the scope of rule of
law, opines that administrative authority should follow procedural,
safeguards, for however, wide the power of the state and however
wide the discretion they confer, it is always possible to require
them to be exercised in fair manner, and if exercised fairly, they
will be exercised more efficiently. He believed that it was only by
procedural fairness that drastic governmental powers were
rendered tolerable. 102 Similarly, a judge of the United States
Supreme Court HonT^le Justice Jackson said: "Procedural fairness

99 P. C. Jain, Administration Adjudication, op. cit., p. 161.

100 Hauriou, La Jurisprudence Administrative De 1892, at 1929, 47 (1929),
cited by Schwartz, op. cit., p. 113.
101 H. W. R. Wade, Administrative Law, (1971), p. 46.
102 Id., p. 171,
 161

and regularity are of the indispensable essence of liberty. Severe

substantive law can be endured if they are fairly and impartially
applied."i03 They are one of the most essential elements in the rule
of law. While expanding the ambit of principle of rule of law, Prof.
Wade endeavours to include 'natural justice' within the ambit of
rule of law and feels that application of the rules of natural justice
is necessary to channalise and control the discretionary powers
conferred on the administration. He suggests that the rules of
natural justice should be applied strictly to all administrative acts
in so far as the nature of the case admits. For, all powers ought to
be exercised fairly both in appearance and reality. ^O"*

The constitutional principles of rule of law constitute a

bulwark between the governor and the governed, shielding the
individual from hostile discrimination on the part of those with
political power. 105 xhe doctrine's most obvious application to
constitutional theory is the requirement that the actions of the
executive, and those of every other civil authorities or government
officials should be justified in law. Rule of law stipulates that no
one is entitled, by nature of his office, to disregard the law. No
special authority is permitted to the administration to act outside
his legal power, ^o^ International Commission of Jurists in 1959
expressed its opinion to the fact that rule of law should be
employed not only to safeguard and advance the civil and political
rights of the individuals in free society but also establish social,
economic, educational and cultural conditions under which his

103 Quoted in H. W. R. Wade, Administrative Law, op.cit., p. 171,

104 Id., p. 172,
105 T. R. S. Allan, Legislative Supremacy and the Rule of Law : Democracy
and Constitutionalism, The Cambridge Law Journal, 1985, p. 111.
106 Id., p. 113,
 162

legitimate aspirations and dignity may be realised, ^o^ f h e J^IQ Qf

law requires that nature and limits of official encroachments on
the liberties of the citizen be clearly stated in advance of any action
against him in the name of state, ^o^ The governmental action in
relation to the citizen be circumscribed by rules which limit the
scope of official discretion. The idea which revolves around the
concept of rule of law is that the power of government must be
exercised for the general welfare of the society and it ought to be
regulated by established and promulgated laws, i^^ The rule of law,
Lord Reid has observed, implies that the courts must stand as
mediators between government and citizens, seeking to ensure that
any statutory powers claimed by public officials are properly
authorized, and that the citizens can safely rely on the relevant
statutory wording in formulating his plan and deciding on the
scope of his liberties. ^^^

The constitutional principle of rule of law serves as a potent

weapon to bridge the gap between the legal doctrine of
Parliamentary sovereignty and political doctrine of sovereignty of
the people. What is important is that a rule of law as a
constitutional dogma operates as a weapon to strengthen
democracy by mandating that the powers of government
democratically derived, are applied with proper respect for the
legitimate expectations of the government. The doctrine of ultra-
vires has therefore, emerged as a powerful weapon to fight abuse of

107 Joseph Raz, The Authority of Law, (1979), p. 211.

108 T. R. S. Allam, op. cit., p. 117,
109 John Locke, Two Treatises of Government, Book H, para 137,
110 Black-Clawson, International Ltd. v. Papierwereke Waldhof Ashaffenburg
A.G., (1975) AC 591 at 613 G,
 163

discretionary powers granted by statute, m What is required is that

rule of law must be adhered to strictly so that the rights and
aspiration of the people are not too readily sacrificed to official
convenience. 112

The Supreme Court of India has consistently^ i3 held that in

a democracy governed by the rule of law, the executive government
or any of its officer cannot be allowed to possess arbitrary powers
over the interests of the individual. Every action taken under the
umbrella of administrative discretion must be in conformity with
reason and should be free from arbitrariness. The Apex Court has
categorically held in Shrilekha Vidyarthi v. State of UP,"^ that
every state action, in order to survive, must not be susceptible to
the vice of arbitrariness which is basic to the rule of law, the
system which governs us. Non-arbitrariness being necessary
concomitant of rule of law, it is imperative that all actions of every
public functionary, in whatever sphere, must be guided by reason
and not humour, whim, caprice or personal predilections of
persons entrusted with the task on behalf of the state and exercise
of all power must be for public good instead of being an abuse of
power. 115

111 R. V. Northumberland Compensation Appeal Tribunal, ex. P. Shaw, (1952)

1 KB 338,
112 Arthurs recognised the legitimacy of courts' function of protecting
transcendent constitutional values.
113 Netaibag and others v. State of West Bengal, (2000) 8 SCC 262 at 264;
Vitarelly v. Sitan, 359 US 535; Amarjit Singh Ahluwalia v. State of
Punjab,(1975) 3 SCC 503; Sukhdev Singh v. Bhagat Ram, (1975) SCC
(L&S) 101; R. D. Shetty v. International Airport Authority of India, AIR
1979 SC 1628; I. R. Coelho v. State Tamil Nadu, AIR 2007 SC 864 at 888,
para 124-128; Nataibag v. State of WB, (2000) 8 SCC 262 at 264 C
114 (1991) 1 SCC 212; State of Kerala and others v. K. Prasad and another,
(2007) 7 SCC 140 at 146.
115 Ekta Shakti Foundation v. Govt, of NCT Delhi, (2006) 10 SCC 337;
Secretary State of Kamataka v. Uma Devi, (2006) 4 SCC 1; Principal,
 164

The Supreme Court of India, while explaining the ambit of

rule of law h a s held that commitment to 'rule of law' is the heart of
parliamentary democracy. One of the important element of rule of
law is legal certainty,^i^

The Supreme Court in Som Raj v. State of Haryana has

rightly observed that absence of arbitrary power is the first
postulate of rule of law upon which whole constitutional edifice is
based. If the discretion is exercised without any principle or
without any rule, it is a situation amounting to anti thesis of rule
of law. 117 The survey of the cases decided by the Apex Court shows
that the concept of rule of law has developed many facets which
are not only negative providing constrains on governmental action
but affirmative also imposing an affirmative duty of fairness on the
government. 118 The courts have from time to time insisted that
exercise of discretionary powers be accompanied by reasons. The
scope of rule of law has been expanded intending to secure for the
individual fair dealing by the state. The courts have shown
keenness to the fact that while exercising discretionary powers the
ambit of fair play is not lessened in view of dominating capacity of
state over the individuals, n^

It is quite evident from the survey of the decisional law in

this area that the courts are making all concerted efforts to

Madhav Institute of Technology and Science v. Rajander Singh Yadav,

(2000) 6 s e c 608,
116 Reliance Energy Ltd. v. Maharashtra State Road Development Corporation
Ltd., (2001) 8 s e c 3 at 4; Mahabir Auto Stores v. Indian Oil Corporation,
(1990) 3 s e c 752.
117 (1900) 2 s e c 653, 658-659.
118 ADM V. Shivakant Shukla, AIR 1976 SC 1207; Kesavananda Bharati v.
State of Kerala, AIR 1973 SC 1461; Indira Nehru Gandhi v. Raj Narain,
AIR 1975 SC 2299; Veena Sethi v. State of Bihar, AIR 1983 SC 339; State
of Punjab V. G. S. Gill, (1997) 6 SCC 129.
119 I. P. Massey, Administrative Law, (2005) p. 24.
 165

establish a rule of law society by insisting on fairness. 120 'Yhe

efforts of the court in legitimizing 'due administrative powers' and
illegitimising 'undue powers' by operationalizing substantive and
procedural norms and standards appear to be a high bench-mark
of judicial activism for heading towards establishing and cementing
the philosophy of rule of law in India. 121

The term 'rule of law' can be looked at from two different

angles. The formalistic sense of rule of law refers to an organised
power as opposed to a rule of law by one man. The ideological
sense of rule of law speaks about the regulation of the relationship
of the citizen and the government. The ideological aspect of rule of
law addressed itself to equality, freedom and accountability which
denotes that the rulers rule with deference of the people and
therefore, must be accountable to them in the ultimate analysis. It
predicates that the holders of the public powers must be able to
publically justify the exercise of public power not only as a legally
valid but also socially just, proper and reasonable. 122

The study of rule of law in modem perspective appears to be

fairly wide when looked at in its past perspective. The new phase of
growth of rule of law sounds high and is an embodiment of an
ideal for the government to achieve. The Delhi Declaration 1959^23
which was later on confirmed at Lagos in 1961 reveals that the
ideal aspect of rule of law implies that the function of the

120 State of M. P. v. Rama Shankar Raghuvanshi, AIR 1983 SC 374; Sheela

Barse v. State of Maharashtra, AIR 1983 SC 378.
121 For details see M. P. Jain, Changing Face of Administrative Law in India
and Abroad, (1982), p. 3.
122 Upendra Baxi, Development in Indian Administrative Law, Public Law in
India, (1982) (A. G. Noorani, ed.), p. 134.
123 See, Goodhart, The Rule of Law and Absolute Sovereignty, Pennsylvania
Law Review, Vol. 106, pp. 946-963.
 166

government in a free society should be so exercised as to create

conditions in which dignity of man as an individual is upheld. It
aims not only at the recognition of certain evil or political rights
but also creation of certain political, social, educational and
cultural conditions which are essential to the full development of
his personality. Similarly, the Apex Court of India has recently
endeavoured to hammer out some fine principles of Third World
Jurisprudence extending the reach of the rule of law to the poor
and the down trodden, the ignorant and the illiterate, who
constitute the bulk of humanity in India. ^24

The judicial trend with regard to understanding the growing

scope of the rule of law has undergone a vast change. The glance of
the recent judicial decisions would certainly show that the judicial
activism in India has succeeded in establishing a rule of law
society which implies that no matter how high a person may be the
law is always above him. The study of cases evidently reveals that
court is developing techniques by which it can force the
government not only to submit to the law but also to create an
environment where people can develop capacities to exercise their
rights properly and meaningfully. The courts have made the
administration to understand the fact that every government
servant is a trustee of the society and is accountable to for due
effectuation of constitutional goals, ^^s

VI. Conflict of Values : Reflection of Balancing Approach

Conference of discretionary powers on the administration

has become a way of life of the welfare state. The commitment of

124 Veena Sethe v. State of Bihar, AIR 1983 SC 339.

125 Superintending Engineer v. Kuldeep Singh, (1997) 9 SCC 199.
 167

the framers of the Constitution to establish an egalitarian society

has multiplied the chances of conferment of discretionary powers
on the administrative authorities. The wise founding fathers of the
Constitution have had intended to put on the state the
responsibility of seeking that everyone is provided with the
necessities of life. Therefore, Act after Act h a s put upon the
administration the responsibility, the duty of providing for the
welfare of their inhabitants. In order to achieve the constitutional
goals, plethora of administrative agencies have taken place to carry
out the task necessary for the achievement of the constitutional
dreams. The administrative agencies have been charged with the
several duties along with the discretionary powers necessary for
the attainment of constitutional goal. The principle that runs
through all the recent welfare legislations is that the State is
responsible for seeing that all the supplies and services which are
necessary for the individual well-beings are available to all its
inhabitants. The social revolution designed under the Constitution
of India has resulted in the creation of great number of new duties
of a kind unknown before that is, positive duties of the individuals
towards the state and of the state towards the individual. ^26

The administrative authorities have been vested with the

discretionary powers with a purpose that these instrumentalities
would vindicate the rights and duties assigned to them or imposed
on them by the law of the land. The most decisive consideration is
the feeling that the new rights and duties are dealt with as part of
an administrative system. To be true, the most significant feature
of our legal system is increasing powers of the executive. These
powers touch the life of everyone of u s at innumerable points and

126 Afred Denning, Freedom Under the Law, (1974), pp. 755-76.
 168

they are inseparable part of modem society. 127 At every point,

however, these powers involve interference with private rights and
interests. Therefore, it become inevitable that a j u s t balance is
struck in the matter. This motion of exercise of power by the
administration is popularly known as balancing approach to
resolve the conflict of values arising during the course of
administrative process. ^^8

It may, however, be submitted here that there is no denying

the fact that power corrupts the man and absolute power corrupts
absolutely. It may happen that an official who is the possessor of
power may not realise when he is abusing it. Its influence is so
insidious that he may believe that he is acting for the public good
when, in truth, all he is doing is to assert his own brief authority.
He may turn tyrant and defeat the very purpose for which the
discretion has been conferred on him. Sometimes, the authorities
may slip into their schemes intended to by the Parliament and
sometimes they may try to delegate to other people, powers which
Parliament intended they should exercise themselves. No one may
question that the power exists with the authority for the law has
granted them, but the question that would h a u n t the mind will be
what remedy the court would provide if they are misused or
abused.

All this necessitates the presence of a strong judiciary so

that powers so vested in the administrative authorities are
scrutinized with the assurance that the purpose intended to by the
legislature is fulfilled and there is no infringement of the rights of
the individuals concerned. It is for the court to insist that a public

127 Id., p. 94.

128 Ibid.
 169

authority must exercise its power genuinely in the public interest.

The courts must be prepared to look into the purpose with which
the executive exercise their power and do not allow them to be
sued for any purpose other than that for which they are
conferred. 129

It is for the court to prevent the potential threat to justice

and freedom from the greatly extended discretionary powers to the
administration without scrutinizing administrative efficiency and
expediency so that the claims of justice with the needs of the
government are conciled on the Bentham's principle of
maximization of happiness with minim of pain. The conflict of
value and a balancing approach stresses for the need to find
answer to the question : what is to happen when authority does
not exercise power when it ought to exercise? The fact is that the
executive are under a general duty to exercise due diligence as the
courts will not tolerate inertia or procrastination, ^^o Law does not
permit the authorities to escape their responsibility by doing
nothing if duties to do are cast under law.

Reviewing the position generally, the chief point which

emerges from the perusal of the decisional law is that the principle
of rule of law has been allowed to act as a beaconing light and
guiding star and court does not tolerate anything weakening the
grip of rule of law designed in the Constitutional set up. The
judicial trend shows that the rule of law is evolving into a very
effective instrument of controlling exercise of discretionary power.
It has been used to veto any provision of law which seeks to confer

129 Id., at p. 115.

130 Id., at p. 123.
 170

too broad discretionary powers.^^i It is now settled law that the

court will not allow the administrative authorities to act arbitrarily.
Any arbitrary decision is per se violative of the rule of lawi32
envisaged in our National Charter. The courts have ruled in many
cases that administrative officers cannot refuse to exercise
discretion at his sweet will and pleasure. The government and its
officers have a duty to act in a joint and fair manner and discretion
should not result in discrimination. ^33 f h e spirit of discretionary
powers is always coloured with bonafide belief that every
administrative act must be done fairly. The Supreme Court has
reiterated the principle that courts do not review discretionary
decisions on merit, ^^4 The court has observed that absolute power
is anathema under the constitutional order. What is forbidden is
the 'naked power.'^35 Action which irrationally digs u p absolute
circumstances and obsessively reaches a decision based thereon
cannot be sustained, ^^e in the words of the court:

Though the subjective opinion cannot be questioned

by the court yet the court can consider whether
circumstances relevant or conditions precedent for the
formation of subjective opinion existed on the basis of
which the administrative authority was satisfied in
making the order in question. ^^'^
Taking the strict viewpoint on the exercise of discretionary
powers, the court ruled that an executive authority must be

131 Om Prakash v. Jammu and Kashmir, AIR 1981 SC 1001; Ramana v.

International Airport Authority, AIR 1979 SC 1628.
132 Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487.
133 T. V. Anandon v. State, AIR 1981 Kerala 242; Vishnu Das Hundumal v.
State of M. P., AIR 1981 SC 1636.
134 P. Kasilingam v. P.S.G. College of Technology, AIR 1981 SC 789; State of
Kamataka V. K. B. Walavakar, AIR 1981 SC 1968.
135 Baldev Raj v. Union of India, AIR 1981 SC 70.
136 Ibid.
137 Vijay Bahadur Singh v. Secretary Secondary Education, AIR 1981 Cal 105.
 171

rigorously held to the standards by which it professes it action to

be judged and it must scrupulously observe those standards on
pain of invalidation of an act in violation of them.i^s The court has
observed that it has become necessary to structure and restrict the
power of executive power of the government to prevent its arbitrary
application or exercise.

The norms laid down by the courts undoubtedly reveal that

whenever power is conferred on high and responsible officers they
are expected to act with caution and importantly while discharging
their duty as vesting of the discretionary powers in the state,
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
responsibility. ^39 ^ large catena of cases are there to show that
exercise of discretion may be vitiated by some element which
makes it as an abuse of discretion. I'^o

While upholding the spirit of discretionary power, the courts

are of the view that if the legislative policy is clear and definite and
discretion is vested by the statute on the executive or
administrative authority to make selective application of the law to
certain classes or groups of persons as an effective methods for
carrying out that policy, the statute itself cannot be condemned as
discriminative, but the exercise of that discretion in an arbitrary
manner or in violation of that policy can be attacked as offending
the right for equal protection of the laws.i'*! Showing the trust in
administrative authorities, courts have held that when power is
conferred on fairly high officers, abuse of power by such officers

138 Sukhdev v. Bhagat Ram, AIR 1975 SC 1331.

139 K. L. Gupta v. Bombay Municipal Corporation, (1968) 1 SCR 674.
140 S. R. Venkatraman v. Union of India, AIR 1979 SC 49.
141 B. Y. Kshatriya v. Union of India, AIR 1963 SC 1591.
 172

cannot be easily assumed. What the courts insisted is that any

unregulated grant of power, must always be held invalid
irrespective of the fact that the holder of the power is a high or a
low officer. i'*2

Conceding the law making power to the legislature, the Apex

Court has observed that court cannot u s u r p the functions
assigned to the legislative bodies and even indirectly require the
legislature to exercise its power to law-making in a particular
manner. Court cannot assume to itself a supervisory role for the
law making power of the legislature. It should not overstep the well
recognised bounds of its own jurisdiction. ^^^^ It can interfere only if
the policy decision in patently arbitrary discretionary or
malafide.144

Now it is well settled that the courts do not ordinarily

interfere with the policy decisions unless such policy could be
faulted on the grounds of malafide, unreasonableness,
arbitrariness, unfairness, etc. The courts are not expected to
express their opinion as to whether at a particular point of time or
in a particular situation any such policy should have been adopted
or not. It is best to be left to the discretion of state. I'^s

Justice Chagla, C. J. was right to observe:

We are not oblivious of the fact that in order that the

modem state should function, the government must
be armed with the large power. But the High Court
does not interfere with the exercise of those powers.

142 Chintalingam v. Govt, of India, AIR 1971 SC 474.

143 Municipal Committee Patiala v. Model Town Residents Association, (2007)
8 s e c 687.
144 Dhampur Sugar (Kashipur) Ltd. v. State of Utteranchal, (2007) 8 SCC 445.
145 Ugar Sugar Works Ltd. v. Delhi Administration, (2001) 4 SC 31.
 173

The High Court only interferes when it finds that those

powers are not exercised in accordance with the
mandate of the legislature. Therefore, far from
interfering with the good governance of the state the
court helps the good governance by constantly
reminding government and its officer that they should
act within the four comers of the statute and not
contravene any of the conditions laid down as a
limitation upon their undoubtedly wide powers, i'*^

To sum up, the potential threat to justice and freedom

arising from the greatly extended discretionary powers needs to be
prevented without sacrificing administrative efficacy and
expediency. The conflict of values vis-a-vis a balancing approach
aims at trying to reconcile a claim of justice with the needs of
growing discretionary powers to be vested with the government. It
is revealed from the foregoing discussion that Indian legal system
seeks to concile the conflicts through three different principles
produced hereunder:

(1) That the legislature in India has not been left absolutely free
to confer dangerous, uncontrolled, unfettered and
unchecked discretion on administrative agencies. The
constitutional mechanism has perfectly intended to
vouchsafe the rights of the individuals providing sufficient
basis for the courts to invalidate the legislation conferring
dangerous, uncontrolled, unfettered, naked, unlimited
discretion on administrative authorities without laying any
standard or guidance. ^'^'^
(2) That although courts have conceded practically an unlimited
area of freedom to administrative authorities to exercise their

146 State of Bombay v. Leixmidas Ramchhodas, AIR 1952 Bom 468; Union of
India v. Prakash P. Hinduja, (2003) 6 SCC 195.
147 For details see Constitution of India, Art. 14.
 174

discretion in any manner they like, yet the arbitrary and

capricious exercise of discretion have never been allowed to
prevail upon the rights of the people. The scrutiny of judicial
decisions establish beyond doubt that the courts have
structured a well designed network compelling the
discretionary powers to be exercised objectively, fairly,
reasonably, in good faith and for the bonafide use strictly in
accordance with the dictate of the empowering Act. The
courts at regular interval have endeavoured to evolve
stringent procedural safeguards to channelize the
administrative discretion in consonance with the legislative
intent.
(3) That the judiciary has whittingly and cautiously exercised its
reviewing power in case the administrative authority violated
the principle of legality. The courts have adopted the policy
of compensation in cases where the individual suffers
because of the wrong of the administrative authority.

Hence, it may be epitomized here that the plea of

administrative efficiency and expedience h a s often overweighed the
demand of individual justice. It is only in some glaring cases that
an individual h a s succeeded in seeking aggradisement of his rights
and interests. We may share the viewpoint of Sir Alfred Denning
that properly exercised discretionary powers by the administrative
authorities : but abused they lead to the totalitarian state breeding
brutality, injustice, exploitation, arbitrariness thereby leading the
masses to absolute despotism. ^^^^ That is why a heavy burden has
been shifted on the judiciary to come forward as a bulwark of
liberty of the individuals' rights and interests, and at the same

148 Sir Alfred Denning, op. cit., p. 126.

 175

time extending its full cooperation to the government in

furtherance of the goal establishing a welfare state intended by the
wise founding fathers of the Constitution.

VII. Sum-up

The foregoing study reveals that the Constitution of India

has spelt out some concrete fundamental principles on which the
state and the people are governed. The organs of the state have
been clothed with powers and responsibilities with an expectation
that these organs will prompt and promote the goal of establishing
a welfare society. It is also evident from the above discussion that
the polity opted by the people of India has been intentionally
circumscribed by the philosophy of the limited government. Rule of
law has been made the cornerstone to subject the h u m a n conduct
to the governance of legal norms.

It is also evident from the foregoing study' that the

Constitution has philosophized and cherished that the rule of law
and Indian democracy go hand in hand and the executive does not,
in anyway, stand as an obstacle to actualize the goal of egalitarian
society. It is also established beyond shadow of doubt that the
framers of the Constitution have believed in Trust Theory' whereby
the recipients of the people's power discharge their duties in
accordance with the 'Faith Clause' envisaged by the framers under
the National Charter. To assure that the organs of the government
do not, in any way, abuse the power belonging to the people, being
exercised on their behalf by the state functionaries, care has been
taken in the Constitution to strengthen the domain of rule of law.
It is perhaps with this viewpoint in mind that the Apex Court in
the landmark case of Keshwanand Bharti v. State of Kerala, AIR
 176

1973 SC 1461 has held tJiat rule of law is the basic structure of
the Constitution built on the basic foundation that the dignity and
freedom of the individual cannot by any form of amendment, be
destroyed. It is also evident that idea of welfare state has also been
declared as the basic element of constitutional structure.
Emphasis has been laid to secure individual freedom to the
citizens.

The study shows that the Constitution does nowhere

prohibit the conferment of discretionary powers on the
administrative agencies. What it mandates is that every state
action, in order to survive, must not be susceptible to the vice of
arbitrariness.

Various jurists have expressed their viewpoints on the

relationship between the discretionary powers and the rule of law.
The majority view, except Dicey, that has surfaced is that
admiinistrative discretions are inevitable to run the administration
and strive for the well-being of the society. For them there is no
contradiction between the administrative discretion and the rule of
law provided that the powers are used as a weapon to promote
welfare and interests of the people in the society. The modem
jurists like Jenning, Schwartz, Gamer and many others believe
that the rule of law must be understood in the global background
having its universal validity. While promoting dynamism in
promoting the spirit of administrative law, these jurists opine that
administrative law is now at a turning point moving towards a
new phase and hence no contours can be laid down to demarcate
the limits of the administrative powers to be conferred on the
administrative authorities. However, they believe that there is a
 177

need to evolve a strong mechanism to control the abuse of

discretionary powers through effective judicial control.

The study discloses that conferment of discretionary power is

now a need of the hour for it is not possible for the administration
to function without discretion. The judiciary has, as is apparent
from the scrutiny of catena of cases, held that the conferment of
discretionary powers nowhere transgresses the domain of rule of
law. The study also shows that courts are reluctant to interfere
with the conferment of discretionary powers and presume that
every discretionary power is preceded by well defined guidelines
which would certainly regulate the exercise of such discretion.
What is evident is that the judiciary has always believed that
legislature must have articulated a clear cut statutory intent,
purpose, policy and objectives. The judiciary h a s intervened only
when the legislature has failed in its duty to lay down the purpose,
policy and objectives. The study of the cases decided by the Apex
Court from time to time reveals that judiciary h a s never treated
discretionary power as an evil. The attitude of the courts, since the
beginning, has been pro-discretionary, subject to the condition
that the public officers would discharge their duties honestly in
accordance with the spirit of law. The judicial trend further reveals
that necessary guidelines for the exercise of discretionary power
are must to save the individuals from the arbitrary actions.
Uncontrolled discretion, the courts opine, is destructive of the
principle of 'equality before law' and may work against the
democratic spirit. Disclosure of a definite policy is essential. On the
other hand, the court holds the viewpoint that every discretionary
power is not necessarily discriminatory. It becomes discriminatory
only when discretion is exercised arbitrarily.
 178

It is also an admitted fact that judiciary h a s developed a high

degree of tolerance towards the exercise of discretionary powers by
the administrative authorities. The consensus that may arise after
thorough examination of the judicial pronouncements on
administrative discretion is that rule of law and discretion do not,
in any way come in conflict with each other, rather it is correlated
to the basic postulate of equality-rule which guarantees that
justice should not only be done but it m u s t also be seen to have
been done. The judiciary has always shown its inclination towards
strengthening the procedural safeguards which would control the
exercise of discretion for the purpose for which intend to under the
Act.

To sum up, the dogma of the rule of law is now being

understood as a potent weapon to bring a balance between the
functioning of administrative authorities on the one side and the
rights of the people on the other. The concept of rule of law has
developed both positive as well as negative facets. It is well settled
law that courts do not ordinarily interfere with the policy decision
unless such policy is faulted on the ground of malaflde,
unreasonableness, arbitrariness. To conclude, the need is to settle
a compromise between these two conflicting claims so that the
administration is enabled to function in a better way to serve the
need of the people so as to cherish the dreams of welfare society.