Fundamental Rights

How the policy behind statute is determined?


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Even when Legislature does not make effective classification and leaves it to be made by administrative authority the legislature in such a situation law down the policy or the standard according to which the delegate must make the classification.

In P.N. kaushal v Union of India 1978 the Supreme Court has established that the policy of the law must be gathered from the Preamble and shall be read in the light of circumstances in which it is passed. The discretionary power of administrative authority shall be limited within the condition of its exercise laid down in the rules made under the Act.

In State of West Bengal v Anwar Ali Sarkar 1952 the Supreme Court has established that where the standard or guide furnished by the statute is vague and uncertain  it amount to the absence of any guide at all and the law must be struck down as conferring unguided power upon the Executive to discriminate but where the standard offered by the statute is vague or not is to be determined upon an examination of the act read as a whole, the standard prescribed by the Act cannot be held to be vague so as to be gathered from the history of the legislation and the circumstances which prevailed at the time of its enactment, and to ascertain these facts, the court may take affidavit on the behalf of the state.

The above argument leads us to another question, whether denial of equal protection may take place in the administration of law?

In Kedarnath bajoria v State of West Bengal AIR 1954 it was mentioned that the equal protection may be denied not only by legislation but also by administration of law. The principles to be applied where an administrative act is challenged should not be confused with those which are to be applied when the law itself under which the administrative act is purported to be done is challenged.

Where the law itself is not discriminatory and the charges of violation of equal portion is only against the official who is entrusted with the duty of carrying it into operation, the charges will fail if the power has been exercised by the officer in good faith within the limitation imposed by the Act and for the achievement of object of enactment had in view, if, however, the person who alleges discrimination succeeds in establishing that the step was taken intentionally for the purpose of injuring him, or in other words, that it was a hostile act directed against him, the executive act complained of must be annulled, even though the statute itself be not discriminatory.

Thus, it was established in Iron 7 metal traders v Haskiel that when a law is challenged as discriminatory, relevant consideration is the effect of the law and the intention of the Legislature but when a law is itself non-discriminatory but its administration is challenged as discriminatory, the question of intention of the administrative authority becomes material. The administrative action cannot be said to have offended against Article 14 unless it was ‘mala fide’ or actuated by a hostile intention as distinguished from mere oversight. Mala fide intention can be established where there is discrimination if individual is signed out from a number of persons similarly situated for a hostile treatment.


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