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Article 14 and Administrative Discretion: The Relevance

Updated: Jun 4, 2021

The author, Megha Sugandhi, is a fourth-year student from Symbiosis Law School, Hyderabad.

This article begins with a meaningful insight of the term “administrative discretion” along with a detailed study of its purpose and ambit. Then, it studies the relationship between Administrative law and the Constitution of India so as to understand the governance and administrative powers of the officers. This part of the article establishes a bond between the two to apprehend the flow of powers and functions of the executive officials. Further, it scrutinizes the significant interrelation between Article 14 and discretion of executive officials and is concluded through a series of salient precedents.


Executive officials are the authority vested with the powers and functions of administration. The administrative law derives its structure and core principles like the “audi alteram partem”, the “rule of law”, and the “principles of natural justice” from the Constitution of India along with other specific statutes. It is the Indian Constitution that empowers administrative officers with certain discretionary power so as to enable them to function for the welfare of the public. Administrative powers and duties are, generally, defined by statutes and are called “ministerial powers”.

Nonetheless, the possibility that situations where the executive officers cannot act in accordance to the law is well understood by the lawmakers. This is why they have granted discretionary powers to the administration for certain circumstances. Such powers have become essential for the growing economy and society at large to authorize the implementers of law to act according to the need of the hour.

It is well-established that power is often misused and so does happen with discretionary powers as such power comes without rigid restrictions. Administrative officers tend to misuse their powers by acting out for revenge or by non-application of their mind. When circumstances like these arise, the judiciary is forced to intervene and scrutinize their actions in the interest of justice. The judiciary through its review powers acts as a means to control acts of the administration from violating fundamental rights.


Powers and functions of the Administrative Law are classified into three categories namely Quasi-Legislative, Administrative and Quasi-Judicial powers and functions. Administrative power is further divided into Ministerial and Discretionary power. Ministerial power and functions are the duties of administrative officers provided by certain laws to be performed in a specific manner, leaving nothing to their judgment and discretion.[1] Ministerial powers and functions are considered exceptional as the majority of the functions of administrative officers are discretionary.

Discretionary power of the administrative officers, on the other hand, is choosing from the available alternatives but such discretion is subject to the use of reason and justice and not personal notions.[2] The term ‘discretion’ is different from ‘administrative discretion’ and means the right and freedom to decide a course of action in a particular situation. Here, a person has complete freedom to do as he wishes without interferences and his actions do not affect or harm the public at large. But under administrative discretions, the discretion comes with the need for fulfilling principles of natural justice, following reason, granting justice and all of this for the sole benefit and welfare of the public.


The relationship between administrative law and constitutional law is that both constitute parts of the public law. There are various differences between the two, one of which being that constitutional law is anti-majoritarian and administrative law is anti-authoritarian.[3] The constitutional law grants powers and rights to the officers and citizens of the country, subject to its limitations. Whereas, the administrative law provides for the exercise of power granted by the constitution with principles of fairness, reasonableness, and justice.[4]

According to Ivor Jennings, administrative law is concerned with the bureaucratic authorities' powers and duties., whereas, constitutional law focuses on the general concepts of fairness and reasonability with regard to administrative organizations.[5] Constitutional law makes governing public-centric while keeping the State ethical in its acts with the aid of administrative law. Administrative discretion is subject to limitation and restriction provided by statutes because constitutional law doesn’t permit absolute discretion as it would lead to arbitrariness and failure of justice.

Administrative discretion is controlled by the judiciary with the help of Fundamental Rights. Article 13 of the Indian Constitution deals with power vested with the judiciary to review actions of administrative authorities in situations where officers have used their discretion by making rules or passing orders that violate Fundamental Right(s) of any citizen. Such review shall be for the enforcement of Fundamental Rights guaranteed under Part III of the Constitution and to ensure the welfare of the public.


Article 14 guarantees to every person “equality before law” and “equal protection of laws”. Article 14 embodies “the principle of “non-discrimination”.[6] It is well-settled from the language of the law that equals have to be treated equally even in the matter of executive action and discretion.[7]

Under Article 14 courts can control administrative discretion in two ways:[8]

- By examining the law in question and declaring it unconstitutional if it grants broad and vague discretionary power to the administrative officers, and,

- By viewing and checking whether the actions taken and decisions made by the officers were in accordance with the object of the statute providing such power along with following the principles of Natural Justice and reasonability.

Further, some of the grounds for attacking the exercise of discretion, even if it is granted by a valid and lawful statute or by the Constitution of India, are: (a) exercise beyond the scope of power granted by law, i.e., ultra-vires to the law; (b) power not exercised by proper authority; (c) improper exercise of discretion; (d) arbitrary use of discretion; and (e) exercise of discretion with mala fide intention.

In the case of State of West Bengal v. Anwar Ali Sarkar[9], a law passed by the West Bengal legislature allowing the establishment of special courts for “the speedier trial of such offences, cases, or groups of cases as the State Government may direct by general or special order” was challenged as violating Article 14. In contrast to the usual criminal procedure followed in courts, these courts were to follow a procedure that was more strict and less favorable to the accused in defending himself. The legislation was declared invalid as it created on grounds or guidelines for measuring and classifying persons or cases or offences to be tried by such special courts. Vesting such unguided discretion with the executive was found to be unfair and the necessity of “speedy trial” was held to be ambiguous and undefined for reasonable classification.

In E.P. Royappa v. State of Tamil Nadu[10], the petitioner, an officer of the Indian Administrative Services, challenged order granting him a temporary post made by executive officers on ground of discrimination. It was the petitioner’s contention that he was given a non-cadre post after serving at a cadre post because of the Chief Minister’s personal vengeance against him. His contention was rejected and Justice Bhagwati defined equality as “the antithetic to arbitrariness”. It was held that when an act is arbitrary, it implicitly violates Article 14.[11]

In the case of Maneka Gandhi v. Union of India[12], the petitioner is the holder of the passport issued to her in 1976 under the Passports Act, 1967. She received a letter from the Regional Passport Officer (RPO) in Delhi in July 1977 informing her that the Government of India (GOI) had decided to encumber her passport under Section 10(3)(c) of the Act, requiring her to surrender the passport within seven days of receipt of the letter. The petitioner addressed a letter to the RPO requesting for reasons for making such an order, in reply of which she was told that she was not given reasons for the decision by the GOI keeping the “interest of general public” in mind. Thereupon, the Supreme Court was approached on grounds of the GOI violating Article 14.

The contention made by the petitioner was that the Government of India's seizure of the petitioner's passport without providing her with an opportunity to be heard violates the standards of Natural Justice and, hence, the order is null and void. Furthermore, it was contended that if Section 10(3)(c) of the Act were read to preclude the right to be heard and a trial, it would be unconstitutional and invalid, violating Article 14.

With regards to the issue of principles of Natural Justice, the court held that impounding a person's passport is a major concern because it prohibits the person from exercising his constitutional and fundamental right to travel abroad, which is why expecting a fair hearing is reasonable and legal. The court observed that the authorities in the instant case had ignored the principle of Audi Alteram Partem, which is, let the other side be heard as well, clearly violating their right under Articles 14 and 21.

Further, the Court held that even if the power to confiscate passports is deemed administrative in nature, the principles would be applicable as stated in Ridge v. Baldwin[13] as they are both in the interest of the public and any unjust decision made by them may have serious consequences.

With regards to the issue whether Section 10(3)(c) is in contravention of A.14, the contention of the petitioner was that the power to impound an individual's passport under the provision may be used only on one or more of the specified grounds, but the justification for not providing a reason for a decision that is in the public interest, as in this case, is unclear and vague.

Moreover, according to the provisions of Passport Act, it is up to the discretion of the authority to make a decision and such decision is not appealable. The court held that the meaning of “in the interest of public” has a well-established interpretation and it cannot be termed vague. It was further held that there is limited scope of an authority like the GOI to abuse power and Section 10(3)(c) is not in violation of A.14.

The Court also referred to the case Satwant Singh v. Assistant Passport Officer[14], where the Passports Act was challenged as it empowered the authorities to refuse or grant an issue of passport to applicants at its discretion. The court held the statute invalid as the discretionary power was without any restrictions and directed the Parliament to provide guidelines for such refusal or grant.


The requirement of discretion in administrative action and decision is a well-established rule of administration. Nonetheless, executive officers are often found violating rights of others that are attached with to their discretion. For example, when an administrative officer acts or makes decisions against a particular party merely out of his personal vengeance and without any reasonable and justifiable reason, he infringes that party’s Article 14 of the Indian Constitution.

On the other hand, there may be situations where administrative officers do not perform their discretionary power at all and do not take the required actions, thereby, violating certain rights of an individual. Even under these circumstances, the judiciary can review actions of the administrative officers in the interest of justice. The use of judicial power of review over discretionary powers of the executive officials is a means to control their actions and the same has been observed in a plethora of precedents. By doing so, the judiciary constantly attempts to ensure that the executive is not, in any way, in contravention of law.

[1] M.P. Jain & S.P. Jain, Principles of Administrative Law 424 (6th ed. 2015). [2] UP State Road Transport Corporation v. Mohd. Ismail, 1991 SCR (2) 274. [3] I.P. Massey, Administrative Law 15 (9th ed. 2017). [4] Id., at 15. [5] Sir Ivor Jennings, The Law and the Constitution 217 (5th ed. 1959). [6] Maneka Gandhi v. Union of India, 1978 SCR (2) 621. [7] Man Singh v. State of Haryana, (2008) 12 SCC 331 at 20. [8] Supra note 1, at 461. [9] State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75. [10] E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3. [11] Id., at 85. [12] Supra note 6. [13] Ridge v. Baldwin, [1964] AC 40. [14] Satwant Singh v. Assistant Passport Officer, AIR 1976 SC 1836.

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