It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless contrary is proved, that administration and application of a particular law would be done “not with an evil eye and unequal hand” ((see : A. Thangal Kunju Musaliar vs. M. Venkatachalam Potti, Authorised Official and Income-Tax Officer and another) AIR 1956 SC 246).
In Budhan Choudhry and others vs. State of Bihar (AIR 1955 SC 191) a contention was raised that a provision of law may not be discriminatory but it may land itself to abuse bringing about discrimination between the persons similarly situated. This court repelled the contention holding that on the possibility of abuse of a provision by the authority, the legislation may not be held arbitrary or discriminatory and violative of Article 14 of the Constitution.
From the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional. In such cases, “action” and not the “section” may be vulnerable. If it is so, the court by upholding the provision of law, may still set aside the action order or decision and grant appropriate relief to the person aggrieved.
In Mafatlal Industries Ltd. and Ors. vs. Union of India and Ors. (1997) 5 SCC 536, a Bench of 9 Judges observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable. In Collector of Customs vs. Nathella Sampathu Chetty (1962) 3 SCR 786 this Court observed :
“The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.” It was said in State of Rajasthan vs. Union of India (1977) 3 SCC 592 “it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief.” (Also see: Commissioner, H.R.E. vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Meth (1954) SCR 1005.
As observed in Maulavi Hussien Haji Abraham Umarji vs. State of Gujarat (2004) 6 SCC 672. Unique Butle Tube Industries (P) Ltd. vs. U.P. Financial Corporation and Ors. (2003) 2 SCC 455 and Padma Sundara Rago (dead) and Ors. vs. State of T.N. and Ors. (2002) 3 SCC 533, while interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.