Judicial Review of Administrative Action

Extracts from Mohd. Mustafa v Union of India and Ors., Civil Appeal 6905 of 2021:
“The grounds on which administrative action is subject to judicial review are illegality,
irrationality and procedural impropriety. The following observations made by Lord
Diplock in Council of Civil Service Unions and others v. Minister for Civil Service are
apt:
“By ‘illegality’ as a ground for judicial review I mean that the decision-maker
must understand correctly the law that regulates his decision-making power and
must give effect to it. Whether he has or not is par excellence a justiciable
question to be decided, in the event of dispute, by those persons, the judges, by
whom the judicial power of the state is exercisable.
By ‘irrationality’ I mean what can by now be succinctly referred to as
‘Wednesbury unreasonableness’. It applies to a decision which is so outrageous
in its defiance of logic or of accepted moral standards that no sensible person
who had applied his mind to the question to be decided could have arrived at it.
Whether a decision falls within this category is a question that judges by their
training and experience should be well equipped to answer, or else there would be
something badly wrong with our judicial system. To justify the Court’s exercise of
this role, resort I think is today no longer needed to Viscount Radcliff’s ingenious
explanation in Edwards (Inspector of Taxes) v. Bairstow, of irrationality as a
ground for a court’s reversal of a decision by ascribing it to an inferred though
unidentifiable mistake of law by the decision makers. “Irrationality” by now can
stand on its own feet as an accepted ground on which a decision may be
attacked by judicial review.
I have described the third head as “procedural impropriety” rather than failure to
observe basic rules of natural justice or failure to act with procedural fairness
towards the person who will be affected by the decision. This is because
susceptibility to judicial review under this head covers also failure by an
administrative tribunal to observe procedural rules that are expressly laid down
in the legislative instrument by which its jurisdiction is conferred, even where
such failure does not involve any denial of natural justice. But the instant case is
not concerned with the proceedings of an administrative tribunal at all”.

The discretionary power vested in an administrative authority is not absolute and

unfettered. In Wednesbury, Lord Greene was of the opinion that discretion must be
exercised reasonably. Explaining the concept of unreasonableness, Lord Greene stated
that a person entrusted with discretion must direct himself properly in law and that he
must call his own attention to the matter which he is bound to consider. He observed
that the authority must exclude from his consideration matters which are irrelevant to
the matter he is to consider. Lord Greene concluded that if an authority does not obey
aforementioned rules, he may truly be said, and often is said, to be acting
unreasonably.
Conditions prompted by extraneous or irrelevant considerations are unreasonable and
liable to be set aside by Courts in exercise of its power under judicial review. A decision
can be arrived at by an authority after considering all relevant factors. If the
discretionary power has been exercised in disregard of relevant consideration, the
Court will normally hold the action bad in law. Relevant, germane and valid
considerations cannot be ignored or overlooked by an executive authority while taking
a decision.”
Extracts from Tata Cellular v Union of India., AIR 1996 SC11
“Judicial review is concerned with reviewing not the merits of the decision in support of
which the application for judicial review is made, but the decision-making process
itself.”
“The duty of the court is to confine itself to the question of legality. Its concern should
be : 1. Whether a decision-making authority exceeded its powers? 2. committed an error
of law 3. committed a breach of the rules of natural justice 4. reached a decision which
no reasonable tribunal would have reached or 5. abused its powers.”
“…shortly put, the grounds upon which an administrative action is subject to control by
'judicial review can be classified as under :
(i) Illegality: This means the decision-maker must understand correctly the law that
regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out additional of further
grounds in courts of time. As a matter of fact, in R v Secretary of State for the Home
Department ex parte Brind, [1991]1 AC 696 Lord Diplock refers specifically to one
development, namely, the possible recognition of the principle of proportionality. In all
these cases the test to be adopted is that the court should, "consider whether something
has gone wrong of nature and degree which requires its intervention".
"By "irrationality" I mean that can now be succinctly referred to as "Wednesbury
unreasonableness" Associated Provincial Picture Houses v. Wednesbury Corpn., [1948)
1 KB 233. It applies to a decision which is so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had applied his mind to the
question to be decided could have arrived at."
Two other facts of irrationality may be mentioned:-
“(1) It is open to the court to review the decision-maker's evaluation of the facts. The
court will intervene where the facts taken as a whole could not logically warrant the
conclusion of the decision-maker. If the weight of facts pointing to one course of action is
overwhelming, then a decision the other way, cannot be upheld.”
“(2) A decision would be regarded as unreasonable if it is impartial and unequal in its
operation as between different classes”

Extracts from OM Kumar., AIR 2000 SC 3689:-

“We shall, therefore, have to examine the cases of Sri Om Kumar and of Sri Virendra
Nath from the stand point of basic principles applicable under Administrative Law,
namely, Wednesbury principles and the doctrine of proportionality. It has, therefore,
become necessary to make reference to these principles and trace certain recent
developments in the law.

I (a) Wednesbury principle:

Lord Greene said in 1948 in the Wednesbury case that when a statute gave discretion to
an administrator to take a decision, the scope of judicial review would remain limited.
He said that interference was not permissible unless one or other of the following
conditions were satisfied-namely the order was contrary to law, or relevant factors were
not considered, or irrelevant factors were considered; or the decision was one which no
reasonable person could have taken. These principles were consistently followed in UK
and in India to judge the validity of administrative action. It is equally well known that
in 1983, Lord Diplock in Council for Civil Services Union v. Minister of Civil Services,
(1983) 1 AC 768 (called the GCHQ case) summarised the principles of judicial review of
administrative action as based upon one or other of the following-viz. Illegality,
procedural irregularity and irrationality. He, however, opined that 'proportionality' was
a 'future possibility.'

(b) Proportionality:

The principle originated in Prussia in the nineteenth Century and has since been adopted
in Germany, France and other European countries. The European Court of Justice at
Luxembourg and the European Court of Human Rights at Strasbourg have applied the
principle while judging the validity of administrative action. But even long before that,
the Indian Supreme Court had applied the principle of 'proportionality' to legislative
action since 1950, as stated in detail below.

By 'proportionality', we mean the question whether, while regulating exercise of

fundamental rights, the appropriate or least restrictive choice of measures has been
made by the legislature or the administrator so as to achieve the object of the
legislation or the purpose of the administrative order, as the case may be. Under the
principle, the Court will see that the legislature and the administrative authority
'maintain a proper balance between the adverse effects which the legislation or the
administrative order may have on the rights, liberties or interests of persons keeping in
mind the purpose which they were intended to serve'. The legislature and the
administrative authority are, however, given an area of discretion or a range of choices
but as to whether the choice made infringes the rights excessively or not is for the
Court. That is what is meant by proportionality.

The above principle of proportionality has been applied by the European Court to protect
the rights guaranteed under the European Convention for the Protection of Human
Rights and Fundamental Freedoms, 1950 and, in particular, for considering whether
restrictions imposed were restrictions which were 'necessary'-Within Articles 8 to 11 of
the said convention (corresponding to our Article 19(1) and to find out whether the
restrictions imposed on fundamental freedoms were more excessive than required.
(Handyside v. UK, (1976) I EHR p. 737. Articles 2 and 5 of the Convention contain
provisions similar to Article 21 of our Constitution relating to life and liberty. The
European Court has applied the principle of proportionality also to questions of
discrimination under Article 14 of the Convention (corresponding to Article 14 of our
Constitution). (See European Administrative Law by J. Schwarze, 1992, pp. 677-866.

(II) Proportionality and Legislation in U.K. & India:

On account of a Chapter on Fundamental Rights in Part III of our Constitution right

from 1950, Indian Courts did not suffer from the disability similar to the one
experienced by English Courts for declaring as unconstitutional legislation on the
principle of proportionality or reading them in a manner consistent with the charter of
rights. Ever since 1950, the principle of 'proportionality' has indeed been applied
vigorously to legislative (and administrative action) in India. While dealing with the
validity of legislation infringing fundamental freedoms enumerated in Article 19(1) of the
Constitution of India-such as freedom of speech and expression, freedom to assessable
peacably, freedom to form associations and unions, freedom to move freely throughout
the territory of India, freedom to reside and settle in any part of India-this court had
occasion to consider whether the restrictions imposed by legislation were
disproportionate to the situation and were not the least restrictive of the choices. The
burden of proof to show that the restriction was reasonable lay on the State.
'Reasonable restrictions' under Article 19(2) to (6) could be imposed on these freedoms
only by legislation and Courts had occasion throughout to consider the proportionality of
the restrictions. In numerous judgments of this court, the extent to which 'reasonable
restrictions' could be imposed was considered. In Chintaman Rao v. State of U.P., [1950]
SCR 759, Mahajan J, (as he then was) observed that 'reasonable restrictions' which the
State could impose on the fundamental rights 'should not be arbitrary or of an
excessive nature, beyond what is required for achieving the objects of the legislation.'
'Reasonable' implied intelligent care and deliberations, that is, the choice of a course
which reason dictated. Legislation which arbitrarily or excessively invaded the right
could not be said to contain the quality of reasonableness unless it struck a proper
balance between the rights guaranteed and the control permissible under Article 19(2) to
(6). Otherwise, it must be held to be wanting in that quality. Patanjali Sastri CJ in State
of Madras v. V.S. Row, [1952] SCR 597, observed that the Court must keep in mind the
nature of the right alleged to have been infringed, the underlying purpose of the
restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing conditions of the time. This principle of
proportionality vis-a-vis legislation was referred to by Jeevan Reddy J in State of A.P. v.
MC Dowell & Co., [1996] 3 SCC 709 recently. This level of scrutiny has been a common
feature in the High Court and the Supreme Court in the last fifty years. Decided cases
run into thousands.

Article 21 guarantees liberty and has also been subjected to principles of

'proportionality'. Provisions of Criminal Procedure Code, 1974 and the Indian Penal
Code came up for consideration in Bachan Singh v. State of Punjab, [1980] 2 SCC 684,
the majority upholding the legislation. The dissenting judgment of Bhagwati J See [1982]
3 SCC 24 dealt elaborately with 'proportionality' and held that the punishment provided
by the statute was disproportionate.

So far as Article 14 is concerned, the Courts in India examined whether the classification
was based on intelligible differentia and whether the differentia had a reasonable nexus
with the object of the legislation. Obviously, when the Court considered the question
weather the classification was based on intelligible differentia, the Courts were
examining the validity of the differences and the adequacy of the differences. This is
again nothing but the principle of proportionality. There are also cases where legislation
or rules have been struck down as being arbitrary in the sense of being unreasonable
See Air India v. Nergesh Meerza and Ors.. [1981] 4 SCC 335 at 372-373. But this latter
aspect of striking down legislation only on the basis of 'arbitrariness' has been doubted
in State of A.P. v. Mc Dowell and Co., [1996] 3 SCC 709.

In Australia and Canada, the principle of proportionality has been applied to test the
validity of statutes [See Cunliffe v. Commonwealth, (1994) 68 Aust. L,J 791 (at 827, 839)
(799, 810. 821). In R. v. Oakes. (1986) 26 DLR (4th) 200 Dickson, CJ of the Canadian
Supreme Court has observed that there are three important components of the
proportionality test. First, the measures adopted must be carefully designed to achieve
the objective in question. They must not be arbitrary, unfair or based on irrational
considerations. In short, they must be rationally connected to the objective. Secondly,
the means, must not only be rationally connected to the objective in the first sense, but
should impair as little as possible the right to freedom in question. Thirdly, there must
be 'proportionality' between the effects of the measures and the objective. See also Ross
[Link] School Dishut, No. 15 [1996] 1 SCR 825 at 872 referring to proportionality.
English Courts had no occasion to apply this principle to legislation. Aggrieved parties
had to go to the European Court at Strasbourg for a declaration.

In USA, in City of Boerne v. Flares. [1997] 521 U.S. 507, the principle of proportionality
has been applied to legislation by stating that "there must be congruence and
proportionality between the injury to be prevented or remedied and the means adopted to
that end".

Thus, the principle that legislation relating to restrictions on fundamental freedoms could
be tested on the anvil of 'proportionality' has never been doubted in India. This is called
'primary' review by the Courts of the validity of legislation which offended fundamental
freedoms.

IIIA Proportionality and Administration Action (In England):

In Administrative Law, the principle of 'proportionality' has been applied in several

European Countries. But, in England, it was considered a future possibility in the GCHQ
case by Lord Diplock. In India, as stated below, it has always been applied to
administrative action affecting fundamental freedoms.

(i) From Wednesbury to strict scrutiny or proportionality:

The development of the principle of 'strict Scrutiny" or 'proportionality' in Administrative

Law in England is, however, recent. Administrative action was traditionally being tested
on Wednesbury grounds. But in the last few years, administrative action affecting the
freedom of expression or liberty has been declared invalid in several cases applying the
principle of 'strict scrutiny'. In the case of these freedoms, Wednesbury principles are no
longer applied. The Courts in England could not expressly apply proportionality in the
absence of the Convention but tried to safeguard the rights zealously by treating the said
rights as basic to the Common Law and the Courts then applied the strict scrutiny test. In
the Scatcher Case Alt. General v. Guardian Newspapers Ltd., (No.2) (1990) 1 AC 109 (at
pp. 283-284), Lord Goff stated that there was no inconsistency between the Convention
and the Common Law. In Derbyshire Country Council v. Times Newspapers Ltd., (1993)
AC 534, Lord Keith treated freedom of expression as part of Common Law, Recently, in
R v. Secretary of State for Home Department, Ex P. Simms, [1999] 3 All ER 400 (H.L.),
the right of a prisoner to grant an interview to a journalist was upheld treating the right
as part of the Common Law. Lord Hobhouse held the policy of the administrator was
disproportionate. The need for a more intense and anxious judicial scrutiny in
administrative decisions which engage fundamental human rights was re-emphasised in
R v. Lord Saville Ex. pt., [1999] 4 All ER 860 870, 872 CCA. In all these cases, the
English Courts applied the 'strict scrutiny' test rather than describe the test as one of
'proportionality'. But, in any event, in respect of these rights 'Wednesbury' rule has
ceased to apply.

(ii) Brind and proportionality: Primary and Secondary review:

However, the principle of 'Strict Scrutiny' or 'proportionality' and primary review came
to be explained in R v. Secretary of State for the Home Department, ex. P. Brind, (1991)
1 A.C. 696. That case related to directions given by the Home Secretary under the
Broadcasting Act, 1981 requiring BBC and IBA to refrain from broadcasting certain
matters through persons who represented organisations which were prescribed under
legislation concerning the prevention of terrorism. The extent of prohibition was linked
with the direct statement made by the members of the organisations. It did not however,
for example, preclude the broadcasting by such persons through the medium of a film,
provided there was a 'voice-over' account, paraphrasing that they said. The applicant's
claim was based directly on the European Convention of Human Rights. Lord Bridge
noticed that the Convention rights were not still expressly engrafted into English Law but
stated that freedom of expression was basic to the Common Law and that, even in the
absence of the Convention, English Courts could go into the question (See p. 748-749).

"........ Whether the Secretary of State, in the exercise of his discretion could reasonably
impose the restriction he has imposed on the broadcasting organisations"
and that the Courts were "not perfectly entitled to start from the premise that any
restriction of the right to freedom of expression requires to be justified and nothing less
than an important public interest will be sufficient to justify it."

Lord Templeman also said in the above case that the Courts could go into the question
whether a reasonable minister could reasonably have concluded that the interference
with this freedom was justifiable. He said that 'in terms of the Convention' any such
interference must be both necessary and proportionate (ibid pp. 750-751).

In a famous passage, the seeds of the principle of Primary and Secondary review by
Courts were planted in the Administrative law by Lord Bridge in the Brind case. Where
convention rights were in question the courts could exercise a right of primary review.
However, the Courts would exercise a right of secondary review based only on
Wednesbury principles in cases not affecting the rights under the Convention. Adverting
to cases where fundamental freedoms were not invoked and where administrative action
was questioned, it was said that the Courts were then confined only to a secondary
review while the primary decision would be with the administrator. Lord Bridge
explained the primary and secondary review as follows:

"The primary judgment as to whether the particular competing public interest justifying
the particular restriction imposed falls to be made by the Secretary of State to whom
Parliament has entrusted the discretion. But, we are entitled to exercise a secondary
judgment by asking whether a reasonable Secretary of State, on the material before him,
could reasonably make the primary judgment".

(iii) Smith explains Proportionality further: Primary and Secondary roles of the Court
The principle of proportionality and the primary role of the Courts where fundamental
freedoms were involved was further developed by Simon Brown LJ. in the Divisional
Court in R.v. Ministry of Defence. Exp. Smith, (1996) Q.B. 517 at 541 as follows.
Adverting to the primary role of the Court in cases of freedoms under the Convention, the
learned Judge stated:

"If the Convention for the Protection of Human Rights and Fundamental Freedoms were
part of our law and we are accordingly entitled to ask whether the policy answers a
pressing social need and whether the restriction on human rights involved can be shown
disproportionate to its benefits, then clearly the primary judgment (subject only to a
limited' margin of appreciation') would be for us and not for others; the constitutional
balance could shift."

Adverting to the position (in 1996) i.e.-before the Convention was adopted-Simon Brown
LJ Stated that the Courts had then only to play a secondary role and apply Wednesbury
rules. The learned Judge said:
"In exercising merely secondary Judgment, this Court is bound, even though acting in a
human rights context, to act with some reticence."

On appeal, the above principles were affirmed in the same case in R v. Ministry of
Defence Exp. Smith, (1996) 1 All ER. 257 CA. In the Court of Appeal, Lord Bingham
M.R. said the Court, in the absence of the Convention was not thrown into the position of
the decision maker. Henry LJ (p- 272) stated as follows:

"If the Convention were part of our law, then as Simon Brown LJ said in the Divisional
Court, the primary judgment on this issue would be for the judges. But Parliament has
both given us the primary jurisdiction on this issue. Our present Constitutional role was
correctly identified by Simon Brown LJ as exercising a secondary or reviewing judgment,
as it is, in relation to the Convention, the only primary judicial role lies with the Europe
Court at Strasbourg."

Thus, the principle of Primary review and proportionality on the one hand and the
principle of secondary review and Wednesbury reasonableness on the other hand gave a
new dimension to Administrative law, the former applying in the case of fundamental
freedoms and the latter, in other cases.

(iv) Area of discretion of administrator-varies in different situations:

While the Courts' level of scrutiny will be more in case of restrictions on fundamental
freedoms, the Courts give a large amount of discretion to the administrator in matters of
high-level economic and social policy and may be reluctant to interfere: R v. Secretary of
State for the Environment. Ex p. Nothinghanshore Country Council, (1986) AC 240: R v.
Secretary of States for Environment, exp. Hammersmith and Fultan London Borough
Council, (1991) 1 AC 521(597). Smith speaks of 'variable margin of appreciation'. The
new Rule 1 of the Civil Procedure Rules, 1999 permits the Courts to apply
'proportionality' but taking into account the financial issues, complexities of the matter
and the special facts of the case.

(v) Post-Smith and the Human Rights Act, 1998 After Smith, the English Human Rights
Act, 1998 has since been passed and is to be effective from 2.10.2000. The possibility of
the demise of Wednesbury rules so far as administrative action affecting fundamental
freedoms are concerned, is now clearly visualised. (See Prof. R.P. Craig's Administrative
Law. 4th Ed. 1999 pp. 585-586) Though the Act itself does not explicitly enjoin the
English Courts to apply the test of 'proportionality', it is arguable that it is implicit
because Section 2(1) (a) requires the Court to take into account any judgment, decision,
declaration or advisory opinion of the European Court of Human Rights when the Courts
thinks it fit relevant to proceedings regarding Convention rights.

Under Article 3( 1) of the Human Rights Act, 1998, the English Court can now declare
the legislative action as incompatible with the rights and freedoms referred to in the
Schedule. The Minister is then to move Parliament for necessary amendment to remove
the incompatibility. While doing so, the English Court, can now apply strict scrutiny or
proportionality to legislative and administrative action. The principle is now treated as
Central to English Law (See Human Rights Law and Practice by Lord Lester of Herne
Hill, Q.C. & David Pannick Q.C., (1999) Para 3.16). The more the threshold of
Wednesbury irrationality is lowered when fundamental human rights are on play, the
easier it will become to establish judicial review as an effective remedy with Article 13 of
the 1998 Act (See, ibid, Supplement August, 2000) (Para 4.13.12).

The Privy Council, in a case arising under the Constitution of the Republic of Trinidad
and Tobago had occasion to deal with life and liberty and validity of certain instructions
imposed by Government prescribing time limits for convicts of death sentence to submit
representations to international bodies (as per Conventions ratified by the State). The
privy Council held that the instructions were violative of 'porportionality' and due
process. (See Thomas v. Baptists) (2000) 2 AC I at 20 (Per Lord Millet for majority).
Recently, Lord Irvine of Lairg, the Lord Chancellor has explained the position of
'proportionality' after the Commencement of the English Human Rights Act, 1998. (See
'The Development of Human Rights in Britain under an Incorporated Convention on
Human Rights) (1998 Public Law, 221) (at pp. 233-234). The difference between the
approach of Courts in the cases governed by this Act and the traditional Wednesbury
rules has been pointed out by the Lord Chancellor as Follows:

"Although there is some encouragement in British decisions for the view that the margin
of appreciation under the Convention is simply the Wednesbury test under another guise,
statements by the Court of Human Rights seem to draw significant distinction. The Court
of Human Rights has said in terms that its review is not limited to checking that the
'national authority exercised its discretion reasonably, carefully and in good faith'. It has
to go further. It has to satisfy itself that the decision was based on an "acceptable
assessment of the relevant facts" and that the interference was no more than reasonably
necessary to achieve the legislative aim pursued".

Explaining 'Strict Scrutiny' or 'proportionality' as above, In the wake of the Human

Rights Act, 1998, the Lord Chancellor referred to the Principles laid down by Simon
Brown LJ in Ex.P. Smkith. In cases under the Human Rights Act, 1998, he said "a more
rigorous scrutiny than the traditional judicial review will be required." The Lord
Chancellor further observed:
"In areas where the Convention applies, the Court will be less concerned whether there
has been a failure in this sense (i.e. Wednesbury sense) but will inquire more closely into
the merits of the decision to see for example that necessity justified the limitations of a
positive right, and that it was no more of a limitation than was needed. This is a
discernible shift which may be seen in essence as a shift from form to substance."

*Thus, the principle of primary and secondary review respectively in Convention cases
and non-convention cases has become more or less crystalised. These Principles were
accepted in Ganayutham.

*See also Sir John Laws 'The Limitations of Human Rights in Britain: 1998 Public Law
254 (at 262,265): Davind Pannick, Principles of Interpretation of Convention Rights
under the Human Rights Act and the Discretionary area of judgment' 1998 Public Law
545 (at 549). Towards the Nut Cracking Principle. Reconsidering the objections to
proportionality by Garreth Wong 2000 Public Law 92) (vi) The recent case in UK in ITF
(1999):

While the English Courts were settling down to the principle of 'strict scrutiny' or
'proportionality' for review of administrative action touching fundamental freedoms,
leaving Wednesbury principles to apply to other non-convention cases, a new approach
has recently been made in a case decided by the House of Lords in R v. Chief Constable
of Sussesc. ex.p. International Trader's Ferry Ltd., (1999) 1 All E.R.129. In that case, the
decision of the police not to provide the required help to the ITF for transport of goods
across the English Channel by securing adequate police force to remove the activitist
protesters from the scene,- was upheld. It was stated that the chief Police Constable had
properly balanced the right to protest and the right to free movement of goods, by taking
into consideration, the lack of finances and the number of policeman available and the
risk of injury to protesters etc. (see a country view of our Supreme Court recently
in Navinchandra N. Majithia v. Stale of Meghalaya and Ors.. JT [2000] Suppl. 1 SC
538).

In that connection, the House of Lords appeared to deviate and almost equate
Wednesbury and proportionality. Lord Slynn for the majority after referring to Brind said
that in 'Practice", ' Wednesbury reasonableness and proportionality' may mean the same,
and that whichever test is adopted, the result is the same. Lord Cooke went further and
said that Lord Greene's test in Wednesbury was 'tautologous and exaggerate' and he
advocated a simpler test: "was the decision one which a reasonable authority could
reach?"
It must be said that the House of Lords has deviated both from proportionality and
Wednesbury. This deviation, in our view, is likely to lead to considerable vagueness in
the administrative law which has just now been crystallising. It is difficult for us to
understand how the primary role of the Courts in cases involving fundamental freedoms
and the secondary role of Courts in other cases not involving such rights and where
Wednesbury rule is to be applied, can be equated.

In our opinion, the principles laid down in Brind and Exp. Smith and also as explained by
the Lord Chancellor to which we have made reference earlier are more clear-cut and
must be adhered to. A differentiation must, in our view, be respectively maintained
between the Court's primary and secondary roles in Convention cases and non-
Convention cases (see in this Connection see Prof. Craig, Admn. Law, 1999, 4th Ed. pp.
573, 589, 621 dealing with Lord Cooke's new test).

lll(b). Proportionality and Administrative Action in India:

(i) Fundamental Freedoms under Article 19(1) & Article 21.

In the Indian scene the existence of a charter of fundamental freedoms from 1950
distinguishes our law and has placed our Courts in a more advantageous position than in
England so far as judging the validity of legislative as well as administrative action. We
have already dealt with proportionality and legislation. Now, we shall deal with
administrative decisions and proportionality.

Now under Articles 19(2) to (6), restrictions on fundamental freedoms can be imposed
only be legislation. In cases where such legislation is made and the restrictions are
reasonable yet, if the concerned statute permitted the administrative authorities to
exercise power or discretion while imposing restrictions in individual situations, question
frequently arises whether a wrong choice is made by the administrator for imposing
restriction or whether the administrator has not properly balanced the fundamental right
and the need for the restriction or whether he has imposed the least of the restrictions or
the reasonable quantum of restriction etc. In such cases, the administrative action in our
country, in our view, has to be tested on the principle of 'proportionality', just as it is
done in the case of the main legislation. This, in fact, is being done by our Courts.

Administrative action in India affecting fundamental freedoms has always been tested on
the anvil of 'proportionality' in the last fifty years even though it has not been expressly
stated that the principle that is applied is the 'proportionality' principle. For example, a
condition in a licence issued to a cinema house to exhibit, at every show, a certain
minimum length of 'approved films' was questioned. The restriction was held reasonable
[see R.M. Seshadri v. Dist. Magistrate Tanjore and Anr., AIR (1954) SC 747. Union of
India v. Motion Picture Association, [1999] 6 SCC 150 also related, inter alia, to validity
of licensing conditions. In another case, an order refusing permission to exhibit a film
relating to the alleged obnoxious or unjust aspects of reservation policy was held
violative of freedom of expression under Article 19 (1) (a) S. Rangarajan v. P. Jagjivan
Ram and Ors., [1989] 2 SCC 574. Cases of surveillance by police came up for
consideration in Malak Singh and Ors. v. State of P&H and Ors., [1981] 1 SCC
420. Cases of orders relating to movement of goods came up in Bishambhar Dayal
Chandra Mohan and Ors. v. State of U.P. and Ors., [1982] 1 SCC 39. There are
hundreds of such cases dealt with by our Courts. In all these matters, the proportionality
of administrative action affecting the freedoms under Article 19 (1) or Article 21 has
been tested by the Courts as a primary reviewing authority and not on the basis of
Wednvsbury principles. It may be that the Courts did not call this proportionality but it
really was.

In Ganayutham, the above aspect was left for further discussion. However, we are now
pointing out that in administrative action affecting fundamental freedoms, proportionality
has always been applied in our country though the word 'proportionality' has not been
specifically used.

We may point out that in Israel, the Supreme Court of Israel has now recognised
'proportionality' as a separate ground in administrative law- different from
unreasonableness. It is stated that it consists of three elements. First, the means adopted
by the authority in exercising its power should rationally fit the legislative purpose.
Secondly, the authority should adopt such means that do not injure the individual more
than necessary. And third, the injury caused to the individual by the exercise of the power
should not be disporportional to the benefit which accrues to the general public. Under
this test, the court recently invalidated several administrative actions (see De Smith,
Woolf, Jowell, first Cumulative Supplement to Judicial Review of Administrative Action,
1998, p. 114).

(ii) Article 14 and Administrative Action:- Discriminative classification and

arbitrariness:

We next come to the most important aspect of the case. Discussion here can be divided
into two parts.

(a)(I) Classification test under Article 14:

Initially, our Courts, while testing legislation as well as administrative action which was
challenged as being discriminatory under Article 14, were examining whether the
classification was discriminatory, in the sense whether the criteria for differentiation
were intelligible and whether there was a rational relation between the classification and
the object sought to be achieved by the classification . It is not necessary to give citation
of cases decided by this court where administrative action was struck down as being
discriminative. There are numerous. (ii) Arbitrariness test under Article 14:

But, in E.P. Royappa v. State of Tamil Nadu, [1974] 4 SCC 31, Bhagwati, J. laid down
another test for purposes of Article 14. It was stated that if the administrative action was
'arbitrary', it could be struck down under Article 14. This principle is now uniformly
followed in all Courts more rigorously than the one based on classification. Arbitrary
action by the administrator is described as one that is irrational and not based on sound
reason. It is also described as one that is unreasonable.

(b) If, under Article 14, administrative action is to be struck down as discriminative,
proportionality applies and it is primary review. If it is held arbitrary, Wednesbury
applies and it is secondary review:

We have now reached the crucial aspect directly arising in the case. This aspect was left
open for discussion in future in Ganayutham but as the question of 'arbitrariness' (and
not of discriminatory classification) arises here, we wish to make the legal position clear.

When does the Court apply, under article 14, the proportionality test as a primary
reviewing authority and when does the Court apply the Wednesbury rule as a secondary
reviewing authority? From the earlier review of basic principles, the answer becomes
simple. In fact, we have further guidance in this behalf.

In the European Court, it appears that administrative action can be challenged

under Article 14 of the Convention (corresponding to Article 14 of our Constitution) as
being discriminatory and be tested by applying the principle of 'proportionality'. Prof.
Craig refers to the judgment of the European Court under Article 14 in Lithgow v. UK,
(1996) ECHR 329 as follows;

"The differential treatment must not only pursue a legitimate aim. It had to be
proportionate. There had to be relationship of proportionality between the means
employed and the aim sought to be realised".

Similarly, in the European law, in relation to discrimination on ground of sex, the

principle of proportionality has been applied and it has been held that the State has to
justify its action. In EU Law and Human Rights [by Lammy Betten and Nicholas Grief
(1998 at P. 98)], it is stated:

"If indirect discrimination were established, the Government would have to show 'very
weighty reasons' by way of objective justification. bearing in mind that derogations from
fundamental rights must be construed strictly and in accordance with the principle of
proportionality". [Johnstone v. Chief Constable of the RVC, (1986) ECR 1651
(para38.51)].

In the context of Article 14 of the English Act, 1998, (which is similar to our Article 14)
Prof. Craig refers to the above principle. (See Administrative Law, Craig 4th Ed., 1999
Page 652). Thus, it would appear that under Article 14 of the European Convention,
principle of proportionality is invoked and where questions of discrimination are
involved and the Court is a primary reviewing authority. According to Prof. Craig, this is
likely to be the position under Article 14 of the English Act, 1998.

In the US, in the matter of discrimination, tests of 'intermediate scrutiny' and 'strict
scrutiny' have been laid down. In cases of affirmative action, the US Courts have hitherto
been applying the intermediate scrutiny test'. See the discussion in Indira Sawhney v.
Union of India. [1992] Supp. 3 SCC at 217, at PP.634-685 by Jeevan Reddy, J. But
recently, however, in 1995, the US Supreme Court has shifted, in matters of affirmative
action, from the 'intermediate scrutiny' test to the 'strict scrutiny' test. See Adarand
Constructors Inc. v. Pena, (1995) 75 US 200 referred to by the Constitution Bench
recently in Ajit Singh (II) v. State of Punjab, [1999] 7 SCC 209, at P. 232.

It is clear from the above discussion that in India where administrative action is
challenged under Article 14 as being discriminatory, equals are treated unequally or
unequals are treated equally, the question is for the Constitutional Courts as primary
reviewing Courts to consider correctness of the level of discrimination applied and
whether it is excessive and whether it has a nexus with the objective intended to be
achieved by the administrator. Here the Court deals with the merits of the balancing
action of the administrator and is, in essence, applying 'proportionality' and is a
primary reviewing authority.

But where, an administrative action is challenged as 'arbitrary' under Article 14 on the

basis of Royappa (as in cases where punishments in disciplinary cases are challenged),
the question will be whether the administrative order is 'rational' or 'reasonable' and
the test then is the Wednesbury test. The Courts would then be confined only to a
secondary role and will only have to see whether the administrator has done well in his
primary role, whether he has acted illegally or has omitted relevant factors from
consideration or has taken irrelevant factors into consideration or whether his view is
one which no reasonable person could have taken. If his action does not satisfy these
rules, it is to be treated as arbitrary. In G.B. Mahajan v. Jalgaon Municipal Council,
[1991] 3 SCC 91, at 111. Venkatachaliah, J, (as he then was) pointed out that
'reasonableness' of the administrator under Article 14 in the context of administrative
law has to be judged from the stand point of Wednesbury rules. In Tata's Cellular v.
Union of India, [1994] 6 SCC 651 (at PP. 679-680); Indian Express Newspapers v.
Union of India, [1985] 1 SCC 641 at 691), Supreme Court Employees' Welfare
Association v. Union of India and Anr., [1989] 4 SCC 187, at. 241 and U.P. Financial
Corporation v. GEM CAP (India) Pvt. Ltd., [1993] 2 SCC 299, at 307, while Judging
whether the administrative action is 'arbitrary' under Article 14 (i.e. Otherwise then
being discriminatory, this Court has confined itself to a Wednesbury review always.

Thus, when administrative action is attacked as discriminatory under Article 14, the
principle of primary review is for the Courts by applying proportionality. However,
where administrative action is questioned as 'arbitrary' under Article 14, the principle
of secondary review based on Wednesbury principles applies.”

1. Hukam Chand Shyam Lal v. Union Of India And Ors, AIR 1976 SC 789

Facts:-
The appellants' telephones were disconnected and taken temporary possession of by the
Superintendent of Police, North District and the General Manager, Telephones
respectively on various dates acting under the instructions of the Administrator, Delhi,
who was personally satisfied that illegal forward trading (satta) in agricultural
commodities was being practised on a large scale by them through their telephones.
The Orders were purportedly made under s. 5(1) of the Indian Telegraphs Act,
1895, and Rule 422 of the Indian Telegraphs Rules, 1951. These orders were assailed
by the appellants by a writ petition under Art. 226 of the Constitution which was allowed
by a single Judge of the High Court, resulting in a special appeal by the Union of India,
which was accepted.
The order reads as under:

"Whereas the Administrator of Delhi is satisfied that illegal forward trading (satta) in
agricultural commodities is being practised on a large scale through the following
telephones installed in the rooms/cabins in the premises of the Coronation Hotel,
Fatehpuri, Delhi, thereby affecting adversely the price of the supply essential to the life of
the community.

Whereas public emergency exists and the Administrator, Delhi is satisfied that the
continuation of satta at the aforesaid premises through the telephones given above is
prejudicial to public interest and as such it is necessary to take temporary possession of
all the aforesaid telephones from the premises in question."
The General Manager, Telephones, Delhi also, made orders on November 28, 1972 and
December 5, 1972, purporting to act under Rule 422 of the Indian Telegraphs Rules,
1951, (for short, the Rules) for disconnecting the telephones and non-exchange lines. One
of those orders, dated November 28, 1972, may be extracted as a specimen:

"The Delhi Administration has certified vide order No. F5/20/72/C-HG dated 27-11-1972
that public emergency exists and that continuation of "satta' at the premises of
Coronation Hotel Fatehpuri through the telephones is pre judicial to public interest.

The undersigned in exercise of the powers conferred under rule 422 of Indian
Telegraphs Rules, 1951 hereby orders to disconnect the telephones and Non-exchange
Lines mentioned in the list supplied by Delhi Administration”

Section 5 of the Indian Telegraph Act, 1895 provides:

"(1) On the occurrence of any public emergency, or in the interest of the public safety,
the Central Government or State Government or any officer specially authorised in this
behalf by the Central Government or a State Government may, if satisfied that it is
necessary or expedient so to do, take temporary possession (for so long as the public
emergency exists or the interest of the public safety requires the taking of such action)
of any telegraph established, maintained or worked by any person licensed under this
Act.

(2) On the occurrence of any public emergency or in the interest of the public safety, the
Central Government or a State Government or any officer specially authorised in this
behalf by the Central Government or a State Government may, if satisfied that it is
necessary or expedient so to do in the interest of the sovereignty and integrity of India,
the security of the State, friendly relations with foreign States or public order or for
preventing incitement to the commission of an offence, for reasons to be recorded in
writing, by order, direct that any message or class of messages to or from any person or
class of persons or relating to any particular subject, brought for transmission by or
transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted
or detained, or shall be disclosed to the Government making the order or an officer
thereof mentioned in the order:

Provided that press messages intended to be published in India of correspondents

accredited to the Central Government or a State Government shall not be intercepted or
detained, unless their transmission has been prohibited under this sub-section."

Indian Telegraphs Rules, 1951:

"421. Disconnection of telephones.-Where the Divisional Engineer is satisfied for
reasons to be recorded in writing that it is necessary to do so, he may, after giving the
subscriber a notice in writing for a period which shall not except in emergent cases be
less than 7 days, disconnect the telephone, and in such case, the subscriber shall be
entitled to refund of rent for the unexpired portion of the period for which the connection
or service was given.

422. Right of disconnection in emergency.-The Divisional Engineer may, in the event of

any emergency, disconnect any subscriber, with or without notice. In case such
disconnection exceeds a period of seven days, the subscriber shall be entitled to
proportionate refund of rent.

427. Illegal or improper use of telephones.-A subscriber shall be personally responsible

for the use of his telephone. No telephone shall be used to disturb or irritate any person
or for the transmission of any message or communication which is of an indecent or
obscene nature or is calculated to annoy any person or to disrupt the maintenance of
public order in any other manner contrary to any provision of law."

Contentions of the appellants that the impugned action of disconnection and

temporary taking over of the telephones was bad:-

(a) No statutory notice was ever given as required under Rules 421 and 422.

(b) The Divisional Engineer did not apply his mind and record his own satisfaction about
the existence of "any emergency" and as such there was a contravention of Rules 421
and 422 which had to be read together.

(c) The reason given in the order to the effect that the appellants were making illegal
and improper use of the telephones by transmitting messages and information in regard
to Satta business which had been banned, was irrelevant and extraneous to Rule 422.

(d) The emergency contemplated by Rule 422 is not the same as "public emergency"
declared under s. 5, but "any emergency", the existence of which was to be established
to the satisfaction of the Divisional Engineer and not any extraneous authority, the
appellate Bench of the High Court.

Decision:-

Appeal was allowed. Impugned Orders were quashed and Respondents were directed to
restore the telephone connection of the Appellants.

Reasoning:-
(1) S. 5(1) of the Indian Telegraphs Act, 1895, if properly construed does not confer
unguided and unbridled power on the Central Government/State Government/Specially
Authorised Officer to take possession of any telegraph. [1065 C]

(2) Conditions pre-requisite for the exercise of power under this section and Rule 422 are:

(a) the occurrence of a "public emergency" not any other kind of emergency.

(b) recording of its satisfaction as to the existence of such an emergency by the

Government or the Authority concerned on grounds germane to an action under
the rule [1065 C-D]

(3) The expression "public emergency" has not been defined in the statute. Read as a
whole, s.5, with the two phrases in sub-section (1) viz. "occurrence of any public
emergency" and "or in the interest of public safety", clarifies that a "public
emergency", within the contemplation of that section, is one which raises problems
concerning the interest of public safety", the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States or public order, or the
prevention of incitement to the commission of an offence. It is in the context of these
matters that the appropriate authority has to form an opinion with regard to
the occurrence of a "public emergency" with a view to taking further action
under s. 5. [1065 D-F]

(4) "Economic Emergency" is not one of these matters expressly mentioned in the
statute. Mere "economic emergency" may not necessarily amount to a "public
emergency" and justify action under s. 5 unless it raises problems relating to the
matters indicated therein. [1065 F- G]

(5) Notice under Rule 421 cannot be dispensed with. The scope of the words "any
emergency" in Rule 422 is wider than the expression "public emergency" under s. 5.
The subjective satisfaction as to the existence of "any emergency" under Rule
422 is that of the Divisional Engineer, on a rational basis on relevant material
which may include any certificate or report of the appropriate Government as to the
occurrence of a "public emergency". The requirement of recording such
satisfaction by the Divisional Engineer with reasons therefor, is implicit in the
Rule. That will be a minimal safeguard against arbitrary exercise of the drastic
power. [1066 A, C-D]

(6) The ground for disconnection and taking over temporary possession of the
telephones viz., 'that illegal forward trading (satta) in agricultural commodities is being
practised" amounts to "improper or illegal use of telegraphs and is not a relevant
consideration under Rule 422. The appropriate course to be followed was that laid
down in R. 427 read with Rr. 416 and 421, after giving an opportunity to explain
their conduct, in consonance with the principles of natural justice. [1066 F-G]

(6) It is well-settled that where a power is required to be exercised by a certain

authority in a certain way, it should be exercised in that manner or not at all, and
other modes of performance are necessarily forbidden. It is all the more necessary
to observe this rule where the power is of a drastic nature and, its exercise in a
mode other than the one provided, will be violative of the fundamental principle of
natural justice. Resort to the wrong and more drastic course provided in rule 422,
on a ground which was not germane to an action under that rule violates the
impugned order, particularly when it is manifest, in the instant case that the
authority was influenced more by this ground and less, if at all, by the existence of
"public emergency" certified by the State [1066 H, 1067 A-B]

2. Dr. Ram Manohar Lohia v. State of Bihar and Others, AIR 1966 SC 740
Facts:-

Rule 30 (1) (b) of the Defence of India Rules, 1962, provided that a State Government
might, if it was satisfied with respect to a person that with a view to preventing him from
acting in a manner prejudicial, inter alia to "public safety and maintenance of public
order" it is necessary to do so, order him to be detained. A District Magistrate to whom
the power of the Government of the State of Bihar had been delegated under s. 40(2) of
the Defence of India Act, 1962, ordered the detention of the petitioner under 'the
rule. The order stated that the District Magistrate was satisfied, that with a view to
prevent the petitioner from acting in any manner prejudicial to the "public safety
and the maintenance of law and order," it was necessary to detain him. Prior to the
making of the order the District Magistrate had, however, recorded a note stating that
having read the report of the Police Superintendent that the petitioner's being at large was
prejudicial to "public safety and maintenance of public order'', he was satisfied that the
petitioner should be detained under the rule.

The petitioner moved the Supreme Court under Art. 32 of the Constitution for a writ of
habeas corpus directing his release from detention, contending that : (i) though an order
of detention to prevent acts prejudicial to public order may be justifiable an order to
prevent acts prejudicial to law and order would not be justified by the rule; (ii) the order
mentioned a notification which did not contain the necessary delegation; (iii) the District
Magistrate acted beyond his jurisdiction by considering the danger not only in his
district but in the entire State; and (iv) all the conditions mentioned in the rule must
be cumulatively applied before the order of detention could be made.

Held:-

Per Raghubar Dayal, J, : This Court can investigate whether the District Magistrate
exercised the power under r. 30 honestly and bona fide, or not, that is, whether he ordered
detention on being satisfied as required by r. 30.

Per Mudholkar, J.: Before an entry into the portals of this Court could be dented to a
detenu, he must be shown an order under r. 30(1) of the Defence of India Rules made by
a competent authority stating that it was satisfied that the detenu was likely to indulge in
activities which would be prejudicial to one or more of the matters referred to in the rule.
If the detenu contends that the order, though it purports to be under r. 30( I), was not
competently made, this Court has the duty to enquire into the matter. Upon an
examination of the order, if the Court finds that it was not competently made or was
ambiguous, it must exercise its power under Art. 32, entertain the petition thereunder and
make an appropriate order.

Per Sarkar J.: The order detaining the petitioner would not be in terms of the rule unless it
could be said that the expression "law and order" means the same thing as "public order''.
What was meant by maintenance of public order was the prevention of disorder of a
grave nature, a disorder which the authorities thought was necessary to prevent in view of
the emergent situation created by external aggression; whereas, the expression
"maintenance of law and order" may mean prevention of disorder of comparatively lesser
gravity and of local significance only.

Courts are only entitled to look at the face of the order, because the satisfaction which
justifies the order under the rule is the subjective satisfaction of the detaining authority. If
on its face an order of detention is in terms of the rule, ordinarily, a court is hound to stay
its hands and uphold the order. When an order is on the face of it not in terms of the rule,
a court cannot enter into an investigation whether the order of detention was in fact in
terms of the rule. So the State cannot be heard to say of prove that an order was in fact
made to prevent act's prejudicial to public order though the order does not say so. It is not
a case where the order is only evidence of the detention having been made under the rule.
The order 'is conclusive as to the state of the mind of the person who made it and no
evidence is admissible to prove that state of mind. Extraneous evidence such as the note
made by the District Magistrate was not admissible to prove that the rule has been
complied with.
This is not taking too technical a view, but is a matter of substance. If a man can be
deprived of his liberty under a rule by the simple process of the making of an order, he
can only be so deprived if the order is in terms of the rule. If for the purpose of justifying
the detention such compliance by itself is enough, a non-compliance must have a contrary
effect A mere reference in the detention order to the rule is not sufficient to show that by
"law and order" what was meant was public order".

Per Hidayatullah and Bachawat, JJ. : The satisfaction of the detaining authority cannot be
subjected to objective tests and courts are not to exercise appellate powers over such
authorities and an order proper on its face, passed by a competent authority in good faith,
would be a complete answer to a petition for a writ of habeas corpus. But when from the
order itself circumstances appear which raise a doubt whether the officer concerned had
not misconceived his own powers, there is need ,to pause and enquire. The enquiry then
is, not with a view to investigate the sufficiency of the materials but into the officer's
notions of his power. If the order passed by him showed that he thought his powers were
more extensive than they actually were, the order might fail to be a good order. No doubt,
what matters is the substance; but the form discloses the approach of the detaining
authority to the serious question and the error in the form raises the enquiry about the
substance. When the liberty of the citizen is put within the reach of authority and the
scrutiny by courts is barred, the action must comply not only with the substantive
requirements of law but also with those forms which alone can indicate that the substance
has been complied with.

The District Magistrate acted to "maintain law and order" and his order could not
be read differently even if there was an affidavit the other way. If he thought in
terms of "public order" he should have said so in his order, or explained bow the
error arose. A mere reference to his earlier note was not sufficient and the two
expressions cannot be reconciled by raising an air of similitude between them. The
contravention of law always affects order but before it can be said to affect public
order, it must affect the community or the public at large. One has to imagine three
concentric circles, the largest representing "law and order", the next representing
"public order" and the smallest representing “security of State". An act may affect
"law and order" but not "public order," just as an act may affect "public order"
but not "security of the State". Therefore, by using the expression "maintenance of
law and order" the District Magistrate was widening his own field of action and was
adding a clause to the Defence of India Rules.

The use of the expression "maintenance of law and order" in the impugned order makes it
ambiguous on its face and therefore the order must be held to be had. No doubt the order
also refers to public safety. But then the questions arise: What is it that weighed with the
District Magistrate, the apprehension regarding public safety or an apprehension
regarding maintenance of law and order? Was the apprehension entertained by the
District Magistrate that the petitioner, if left at large, was likely to do something which
will imperil the maintenance of public order generally, or was it that he
apprehended that the petitioner's activities may cause disturbances in a
particular locality ? His order, which was the only material which could be considered,
gave no indication on those questions. The expression "law and order" does not find any
place in the rule and is not synonymous with "public order". "Law and order" is a
comprehensive expression in which would be included not merely public order but
matters such as public peace, tranquility, orderliness in a locality or a local area and
perhaps other matters.

3. Ashadevi, Wife of Gopal Ghermal Mehta (Detenu) v. K. Shiveraj, Addl. Chief

Secretary to the Government of Gujarat, (1979) 1 SCC 222
A detention order, under s. 3(1) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974, was passed by the respondent against the
detenu (appellant's husband) with a view to prevent him from engaging in transporting
smuggled gold. When the detenu was in the custody of the Customs officers, his advocate
addressed a letter and sent a telegram to them protesting against his detention and illegal
custody beyond 24 hours and also expressing an apprehension that he was being detained
with a view to obtain confessional statements under duress. It was admitted that the
advocate's request for permission to remain present at the time of interrogation of the
detenu was turned down by the Customs officers. The advocate was also told that the
detenu would be produced before a Magistrate at 5.30 p.m. On the day of her request. But
that was not done. He was produced on the following day and was remanded to judicial
custody permitting further interrogation by the Customs officers. During such
interrogation while in judicial custody, the detenu refused to sign the further statements
and squarely resiled from his earlier confessional statements disowning the facts therein
stated. While the detenu's application for bail was pending before the Magistrate,
the respondent passed the impugned order. In her petition under Art. 226 of the
Constitution for the issue of a writ of habeas corpus the appellant contended that the
order of the detaining authority was liable to be set aside because full facts of the case
were not intimated to it before detention order was passed and, therefore, there was
complete non-application of mind of the detaining authority to the attendant vital
circumstances. The High Court dismissed the petition.

Allowing the appeal, HELD:

(1) The impugned order was invalid and illegal because there was complete non-
application of the mind of the detaining authority to the most material and vital
facts which would have influenced the mind of The detaining authority one way or
the other as these were neither placed before it nor considered by the detaining
authority. [223E]

(2) It is well settled that if material or vital facts, which would influence the mind of
the detaining authority one way or the other on the question whether or not to make
the detention order, are not placed before or are not considered by the detaining
authority it would vitiate its subjective satisfaction rendering the detention order
illegal. The detaining authority must exercise due care and caution and act fairly
and justly in exercising the power of detention and if taking into account matters
extraneous to the scope and purpose of the statute vitiates the subjective satisfaction
and renders the detention order invalid then failure to take into consideration the
most material or vital facts likely to influence the mind of the authority one way or
the other would equally vitiate t the subjective satisfaction and invalidate the
detention order. [222A B]

In the instant case three facts were not communicated to or placed before the detaining
authority before it passed the impugned order against the detenu viz., (i) during the
interrogation, in spite of the request, neither the presence nor consultation of the advocate
was permitted, (ii) in spite of intimation to the advocate by the Customs officers the
detenu was not produced before the Magistrate at the appointed time and (iii) the
confessional statements were squarely retracted by the detenu at the first available
opportunity while he was in judicial custody. The first two had a bearing on the question
whether the confessional statements had been extorted under duress from the detenu or
not while the third was in relation to the confessional statements which formed the
foundation of the impugned order and as such were vital facts having a bearing on
the main issue before the detaining authority.

(3) The fact that the request to have the presence or consultation of the lawyer was made
and refused ought to have been intimated to the detaining authority. Further in passing
the detention order the detaining authority based its decision on the detenu's
confessional statements and, therefore, it was obligatory upon the Customs officers
to report to the detaining authority the retraction of those statements by the detenu.
In fact of retraction would have its own impact one way or the other on the
detaining authority before making up its mind whether or not to issue the impugned
order of detention. [223A B]
 4. Commissioner of Police, Bombay [Link], AIR 1952 SC 16:-
An application by the respondent for permission to build a cinema on a site within the
City of Bombay was rejected by the Commissioner of Police, Bombay. The respondent
applied for reconsideration of his application and the Commissioner, acting on the advice
of the Cinema Advisory Committee, granted the application on the 16th July, 1947,
though he indicated in an affidavit filed later that but for this advice he would have
refused the application again. Subsequently, under instructions from Government the
Commissioner sent the following communication to the respondent: "I am directed by
Government to inform you that the permission to erect a cinema at the above site granted
to you under the office letter dated 16th July, 1947, is hereby canceled." The respondent
applied to the High Court of Bombay for an order under s. 45 of the Specific Relief Act
directing the Commissioner of Police, Bombay, to withdraw the cancellation and to grant
permission for the erection of the cinema, and the High Court directed the Commissioner
of Police "to withdraw the order of cancellation passed by him." The Commissioner of
Police appealed to the Supreme Court.

Held, (i) that there was nothing in the letter dated 16th July, 1947, to indicate that the
decision was not that of the Commissioner himself given in the bona fide exercise of the
discretion vested in him. The sanction was not consequently invalid merely because the
Commissioner decided to accept the advice of the Cinema Advisory Committee even
though without that advice he would not have granted the permission.

(ii) There was no valid cancellation of the license because (a), the order of cancellation
communicated to the respondent 'was one made by the Government of Bombay and not
by the Commissioner on his own authority; he acted in the matter only as a transmitting
agent; (b), under the rules framed under 136 section 22 (1) (f), (1) (g) and (n) of the City
of Bombay Police Act 1902 the Government of Bombay had no power to cancel of
license once issued. The only person vested with authority to grant or refuse a license
for the erection of a building to be used for purposes of public amusement is the
Commissioner of Police.

(iii) The relief sought by the respondent of an injunction to direct the Commissioner of
Police to grant permission for the erection of a cinema could not be granted because he
had already granted permission and there was no valid order of cancellation.

(iv) The other relief asking for an injunction directing the commissioner to withdraw the
cancellation also could not be granted because Rule 250 vests the Commissioner with an
absolute discretion in the matter.
(v) Though there was no specific provision of law compelling the Commissioner to
exercise the discretion vested in him under Rule 250, inasmuch as the enabling power
vested by Rule 250 was vested in the Commissioner for the welfare of the public at large
it was coupled with a duty to exercise it when the circumstances so demanded. The
Commissioner could consequently be ordered under s. 45 of the Specific Relief Act to
exercise his discretion and decide whether the licence should or should not be cancelled.

(vi) The words "any law" in s. 45 do not mean statutory law alone but embrace all kinds
of law whether referable to a statutory provision or otherwise. Therefore the performance
of duties under the rules can be compelled under the provisions of s. 45.

(vii) There was no other specific and adequate legal remedy open to the respondent
within the meaning of s. 45 for though the respondent could have ignored the so-called
order of cancellation , he could only have done so. at his peril as it purported to emanate
from the State Government and was served by a public officer. The remedy of injunction
was not a proper and adequate remedy in the circumstances of the present case.

(viii) The petition was not incompetent under s. 46 of the Specific Relief Act as there had
been a demand of justice and a denial thereof within the meaning of the section in the
circumstances of the case.

(ix) Public orders, publicly made, in exercise of a statutory authority cannot be construed
in the light of explanations subsequently given by the officer making the order of what he
meant or of what was in his mind, or what he intended to do. As such orders are meant to
have public effect and are intended to affect the acting and conduct of those to whom
they are addressed' they must be construed objectively with reference to the language
used in the order itself.

5. Kesavan Bhaskaran v. State of Kerala, AIR 1961 Ker 23

The facts of the petition are that the mother of Saigal had requested the Director of
Public Instruction on October 8, 1959, for exemption under Rule 127E of the
Travancore Education Code to be given to the son. The Rule provides as
follows:- .

"No English School Leaving Certificate will be granted to any person unless
(a) he has been a pupil on the rolls of Form VI of a recognised English High
School during the whole of the school year in which he applies for a certificate;

(b) he has completed fifteen years of age on or before the first day of July of the
year, in which he applies for the certificate;

Note; -- It shall however be competent to the Director to grant exemption

from this rule in deserving cases in favour of Pupils on whose behalf
recommendations for exemption are received from their respective
Headmasters, provided such recommendations are invariably accompanied
by certificates of physical fitness from medical practitioners (in the subjoined
"form) holding at least the L. M. P. Diploma, X X X

(c) he has been recommended for a certificate by the Headmaster of the school
which he attends during the school year in which he applies for the certificate and
has made the prescribed attendance as laid down in Rule 127 Q.A.

(d) he has been certified by the Headmaster of the school which he attends, either
to have had small-pox or to have been vaccinated not more than five years prior to
the written examination at the close of the school year", x x x x

The Headmaster of the School also wrote to the Director of Text Books and
Examinations recommending Saigal being given exemption. The boy was 11
years and 6 months on February 12, 1960. In March 1957 he was allowed to
sit for Public examination for III form and passed the examination obtaining
a certificate. Afterwards he joined Kottapuram High School and by
promotion he reached the School Final Class, which is XIth standard.' It is
seen from the past record of his study that he had creditably passed all the
class examinations, and has been selected for the ensuing Public examination
and has paid the necessary fee. The Director of the Text Books and
Examinations refused to grant him the exemption on the ground stated in his
memorandum, which is Ext. P. 6 in the case. Its relevant extracts are as follows:-

"Saigal B, of Standard XIA, Kottapuram II. S. Parvoor cannot he exempted

from the operation of the rule regarding minimum age as the deficiency in
age in his case is beyond two years".

His father thereafter filed the O. P. and the A, S. praying at the same time for
interim relief. We have heard the application seeking interim relief, and as we are
substantially convinced of the merits, we think the rejection order should be
reviewed.

The learned Advocate of the appellant has urged that discretionary power
under the rule must not be controlled by self-created rules of policy. In
support of this argument he relies on R. v. Flintshire County Council
Licensing County (Stage Plays) Committee, 1957-1 QB 350. There the
committee had adopted a general rule that no alcoholic liquor or tobacco
should be sold in a theatre if adequate drinking facilities were available
nearby and having imposed that condition on one theatre followed it against
the applicant theatre on grounds of consistency. Jenks, L. J., observed that
the committee wrongly pursued consistency at the expense of the merits of
individual cases. The learned Judge at p. 368 observes:-

"I cannot think that the method of approach fulfils the requirement that the
matter should be heard and determined according to law. It seems to me
that it sets up a general principle as to the effect of proximity of other
premises where liquor can be obtained when the proper course is to
consider each case on its merits. It seems to me that it wrongly pursues
consistency at the expense of the merits of individual cases".

Singleton, L. J., also expressed the same view in these words at page 362:--

"It appears to me that the committee paid attention to the desire to be

consistent, in other words, they decided to grant the same form of licence to
the Queen's Theatre as they have done, to the Pavilion Theatre. I do not
think that the cases are in quite the same position, nor do I think that the
committee ought to have imposed Rule 3 on the Queens Theatre unless in
some way that rule could promote order and decency within the house and I
do not think that it could in view of the history of the house".

The argument is therefore well supported that a Tribunal vested with the
discretion is authorised to follow a policy but that should not be used as an
invariable rule and to preclude exceptional circumstances of a particular case
being decided on merits. In the case before us the authority appears to have
made the invariable rule of not granting exemption unless the applicant's
deficiency, in age be less than two years. By adoption of this policy the
authority has disabled and debarred himself from deciding exceptional cases
on their merits. In our opinion fettering of such discretion by self-created rule
of policy is contrary to law, It also is not denied that where there be failure to
exercise discretion, mandamus can be issued, and therefore vesting of
discretionary power in the authority does not preclude our exercising powers
under Article 226 of the Constitution.
5. The next question is whether the duty is cast by law. In this connection the
learned Advocate of the writ petitioner has relied on the observation of Bose, J.,
in Commissioner of Police v. Gordhandas, AIR 1952 SC 16 where the learned
Judge at p. 21 interprets the words 'any law' in Section 45 in these words:

"In our opinion, the words 'any law' are wide enough to embrace all kinds of law
and we so hold".

In this case the administrative direction creates a duty that is to be observed

and which would be enforced by the proper courts under Section 45 of the
Specific Relief Act. The position cannot be different under Article 226 of the
Constitution for rules regarding mandamus under Section 45 should be
generally followed for mandamus under the Article. We feel fortified by
Rudra Narain Roy in the matter of ILR 28 Cal 479 where the Board of
Examiners' was directed to inquire into each individual case and form its own
opinion. Accordingly the appeal is allowed. The Director's order of January
29, 1960, rejecting the request of exemption is cancelled and be is directed to
determine the request of exemption on its merits unfettered by the earlier
rule of Policy of not exempting where the deficiency in age is beyond two
years.