Administrative Discretion And Fundamental Rights


Administrative Discretion And Fundamental Rights: Articles 13 to 35 of the constitution of India has guaranteed certain fundamental rights to the people. If the law confers and wide discretionary power on an administrative authority which infringes the fundamental rights guaranteed under the Constitution then such law may be declared ultra-vires. Articles 32, 226 and 227 of the constitution of India contain strong power to control the administrative authority if they exceed the limit or abuse the powers given to them. The courts have use the fundamental rights as a tool to control to some extent either bestowal of discretionary power on the administration or manner of their exercise.

No law can clothe administrative discretion with a complete finality, for the courts always examine the ambit and even the mode of its exercise for the angle of its conformity with fundamental rights.
The fundamental rights thus provide a basis to the judiciary in India to control administrative discretion to a large extent. There have been a number of cases in which a law, conferring discretionary powers, has been held violative of a fundamental right. The following discussion will illustrate the cases of judicial restraints on the exercise of discretion in India.

Article 14
Article 14 of Indian Constitution declares that “state shall not deny to any person equality before law and equal protection of the laws throughout the territory of India.” Thus this Article speaks about the “equality before law and equal protection of the laws.” In addition to this provision the right to equality has been again accepted under Arts 15 and 16. Under Article 15 there is a provision for the prohibition of discrimination on the ground of religion, race, caste, sex or place of birth. Upon these grounds state shall not impose any liability or disability of any kind. Similarly under article 16 equality of opportunity has been granted to all citizens in the matters of public employment. Equality before law English concept. Equality before law simply prohibits class legislation, it does not prohibit classification. Equal protection clause is part of American Constitution also. Nainsukhds Vs State of U.P., it was held that a law which provided for election on the basis of separate electorates for members of different religions and communities was unconstitutional.

Administrative discretion and Article 19

There are seven fundamental rights guaranteed to the citizens of India under Article, 19, which are as follows:

  • (a) Freedom of speech and Expression
    • Freedom of Assembly
    • Freedom to form Association
    • Freedom of Movement
    • Freedom to reside and to settle
    • Freedom to acquit, hold and dispose of property (This fundamental right has been omitted by Constitution 44th Amendment Act 1978)
    • Freedom of profession, occupation, trade or business.
  • The restriction on act- 19 must be constitutionally valid and must satisfy the following two tests:
    • (i) The restriction must be for the purpose mentioned in clause 2 to 6 of Article 19.
    • (ii) The restriction must be reasonable.

The reasonable restrictions are open to judicial review.

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