---
title: "Vol 1 0"
book: "PG MPUB 202 (2nd Sem) Administrative & Constitutional Law Amended"
category: "PG MPUB"
publisher: "Ratan Prakashan Mandir Pvt. Ltd."
type: "Educational Material"
---
According to Latest Syllabus
Read For Sure Success
In University Examination
RATAN
TEXT BOOK
ADMINISTRATIVE AND
CONSTITUTIONAL LAW
Vol-1
M.A.Pub.Ad. (Sem-II)
Dr. Anjali Pareekh
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Ratan Prakashan Mandir Pvt. Ltd.
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Unit-1
Administrative & Constitutional Law
Structure
1 .0 Introduction
1.1 Learning Objectives
1.2 Concept, nature and scope of administrative law Self-Check Exercise-1
1.3 Sources, principles and objectives of Administrative Law Self-Check Exercise-2
1.4 Summary
1.5 Glossary
1.6 Answer to self check exercises
1.7 References/Suggested Readings
1.8 Terminal questions
1 .0 Introduction
Administrative law is a subfield within public law, which governs the interactions between citizens and the state, focusing on the use of state power. It forms an essential component of the legal structure supporting public administration. Public administration refers to the execution of public policies and programs across various sectors such as immigration, social welfare, defense, and economic regulation, covering nearly all areas of public service.
This branch of law specifically regulates the actions of government agencies. These actions may include creating rules, making legal decisions, and enforcing specific regulations. Administrative law oversees the decision-making processes within government entities like tribunals, boards, or commissions, which operate within national regulatory systems governing areas such as police law, international trade, environmental protection, taxation, broadcasting, immigration, and transportation. The growth of administrative law in the 20th century corresponds to the increasing number of government agencies formed to regulate the social, economic, and political dimensions of society.
1.1 Learning Objectives
After studying this lesson, the learner will be able to
- Know the concept, definition, nature and scope of administrative law
- Know the sources from where the field of administrative law came out
- Know the principles on which administrative law is based
- Know the objectives of administrative law
1.2 Concept, nature and scope of administrative law
Administrative law is a branch of public law that is concerned with the procedures, rules, and regulations of a number of governmental agencies. Administrative law specifically deals with such administrative agencies’ decision-making capabilities, as they carry out laws passed by state and federal legislatures. An example of administrative law is the regulation and operation of the Social Security Administration, and the administration of benefits to the people.
Administrative law is that body of law which applies for hearings before quasi-judicial bodies, boards, commissions or administrative tribunals supplement the rules of natural justice with their own detailed rules of procedure.
Through jurisprudence, common law or case law, these principles have each been expanded and refined beyond their original simplistic design to form distinct bodies of law forming together what the legal system refers to as administrative law.
Definition of Administrative Law
Administrative law governs the legal framework controlling government activities and the powers exercised by administrative bodies. It consists of rules, regulations, and decisions formed by these agencies to regulate various aspects of governance. Administrative law addresses complaints about government actions that negatively affect individuals, focusing on the legality of government conduct. This involves two primary considerations: the legality of the law itself and the legitimacy of specific actions conducted under that law.
Since governments cannot act on their own, officials perform actions within the boundaries set by laws. Their authority stems from legislation, and they must operate within the limits defined by these laws. If officials overstep these bounds, individuals impacted by such actions may seek judicial review and possible remedies under administrative law.
While defining administrative law precisely is challenging, various jurists have attempted to do so, yet no definition fully captures its nature, scope, and content. Some definitions are overly broad, including unnecessary aspects, while others are too narrow and fail to encompass essential elements.
Ivor Jennings' Definition
Ivor Jennings, in his The Law and the Constitution (1959), defines administrative law as the body of law related to administrative authorities. This widely accepted definition, however, has two issues: it is too broad, as it may include legislation related to public health and urban planning, which aren't traditionally considered part of administrative law. Additionally, it does not distinguish administrative law from constitutional law.
K.C. Davis' Definition
K.C. Davis describes administrative law as governing the powers and procedures of administrative agencies, particularly emphasizing the laws regarding judicial review of administrative actions.
Prof. Wade's Definition
Prof. Wade (1967) argues that any attempt to define administrative law is fraught with difficulty. He classifies state powers into legislative, administrative, and judicial, and suggests administrative law concerns the actions of administrative bodies as distinct from legislative and judicial bodies. However, this definition also faces issues: it overlaps with constitutional law and is too broad, encompassing all areas outside legislative and judicial functions. Moreover, the separation of powers between these functions is not always clear, particularly when administrative authorities legislate under powers granted by the legislature.
Jain and Jain's Definition
Jain and Jain define administrative law as focusing on the structure, powers, and functions of administrative bodies, including the boundaries of their powers, procedures followed in exercising those powers, and legal remedies available when individuals’ rights are violated. This definition highlights four core aspects:
1. The composition and powers of administrative bodies.
2. The limits of those powers.
3. The procedures these bodies follow in exercising their authority.
4. The methods of controlling these bodies, including legal remedies for affected individuals.
Griffith and Street's Definition
Griffith and Street (1963) assert that the main objective of administrative law is to regulate and control the powers of administrative bodies. They focus on three critical areas:
1. The limits of those powers.
2. The types of power exercised by the administration.
3. The mechanisms for ensuring these powers remain within legal bounds.
Improvement to Griffith and Street's Definition
The Indian Law Institute suggests that two additional aspects should be included to present a more comprehensive view of contemporary administrative law:
1. The procedures followed by administrative authorities.
2. The remedies available to individuals impacted by administrative actions.
Garner's Definition
According to Garner, administrative law consists of the rules recognized by courts that govern and regulate the administration of government. It can be viewed as the science of the powers held by administrative bodies, which can be categorized into three types:
1. Legislative or rule-making powers.
2. Executive powers.
3. Judicial or adjudicative powers.
Nature of Administrative Law:
Administrative law is a relatively recent field of law that focuses on the powers granted to administrative authorities, the processes by which these powers are exercised, and the legal remedies available to individuals when these powers are misused by such authorities.
The role of administrative processes is now firmly established and must be recognized as a necessary aspect of modern societies, especially in welfare states. In such states, governments create and manage various social welfare programs aimed at societal progress. However, the implementation of these programs can sometimes infringe upon the rights of citizens. The key challenge is balancing the pursuit of social welfare with the protection of individual rights. The primary objective of studying administrative law is to ensure that administrative authorities remain within their lawful boundaries, preventing the misuse of discretionary powers and ensuring they are not exercised arbitrarily.
Scope of Administrative Law:
Administrative law is a specialized branch of law that focuses on the powers and procedures of administrative agencies. It primarily deals with the adjudicative and rule-making powers of these authorities. The key areas it covers include:
• The creation, structure, and authority of administrative bodies
• Delegated legislation, or the rule-making powers granted to authorities
• The judicial roles of administrative agencies, such as tribunals
• Available remedies, including writs and injunctions
• Procedural safeguards, such as the application of natural justice principles
• Government liability in tort
• The functioning of public corporations
While administrative law is a relatively recent development in the legal field, political science recognizes various administrative organs with specific functions within the administrative machinery. Administrative law focuses on the organization, powers, and functions of these organs, as well as the processes and procedures they must follow. It also outlines the remedies available to individuals whose rights are impacted by the actions of these bodies.
The scope of administrative law can be described as follows:
• It examines the methods and procedures followed by administrative organs.
• It addresses the structure, powers, and functions of these organs.
• It ensures remedies are available for those whose rights are violated by these bodies.
• It investigates how and why administrative organs must be controlled.
As political science has evolved, especially with the concept of federal administration, administrative law has developed as a distinct legal field. It is important to note that this branch of law is specifically concerned with administrative organs and their operations. Delegated legislation plays a central role in administrative law, serving as a crucial foundation for its application.
Self Check Exercise-1
Q.1 The book "The law and the constitution, 1959" is written by?
Q.2 Administrative law and Legal law are entirely different from each other. True/false
Q.3 Administrative and legal law are same. True/false
1.3 Sources, Principles, and Objectives of Administrative Law
Sources
(i) Constitution
The Constitution serves as the foundation for establishing various administrative bodies and agencies. It outlines the framework and powers granted to these authorities, making it the supreme law of the land. Any law or action that contradicts the Constitution holds no validity. This means that all laws and administrative actions must align with the Constitution. It binds the executive branch of government across all areas of administration and sets up various agencies and structures to regulate the exercise of public authority.
(ii) Acts and Statutes
Legislative acts and statutes are crucial sources of administrative law as they provide detailed specifications on the powers, functions, and controls applicable to administrative bodies. These laws establish the legal framework within which these bodies operate.
(iii) Ordinances, Notifications, and Circulars
Ordinances are issued by the President (at the federal level) or the Governor (at the state level) and remain effective for a limited time. They grant additional powers to administrative bodies to address urgent matters. Notifications and circulars issued by higher authorities often delegate or control powers, shaping the authority and actions of lower administrative bodies.
(iv) Judicial Decisions
Court rulings play a vital role in shaping administrative law by establishing new principles that govern administrative actions. These decisions enhance the accountability of administrative authorities and ensure that the actions taken through ordinances, notifications, and circulars comply with constitutional and statutory standards.
Principles of Administrative Law
Judicial Review
Judicial review in administrative law refers to the power of the courts to oversee administrative actions to ensure that government decision-makers act within their legal boundaries. Administrative powers often involve discretion, where authorities must decide between different courses of action or even choose whether to act at all. However, discretion must stay within legal limits to avoid arbitrariness. Judicial review focuses on the legality of decisions made, rather than their content or merits, setting boundaries for the exercise of discretionary authority.
Principle of Legitimate Expectation
The principle of legitimate expectation was introduced to limit the right to be heard. It originated in English case law, where certain alien students had no legitimate expectation of an extension of their permits as a result of government policy. While policies can create legitimate expectations, they can also revoke them. Therefore,
governmental decisions that go against established expectations can be questioned, but the principles of public policy can override these expectations.
Principle of Reasonableness
Reasonableness is a key element of administrative discretion. It refers to the need for administrative decisions to be grounded in logical evaluation, weighing public and private interests. The principle of reasonableness ensures that decision-making is not arbitrary and that it strikes a balance between various factors that may be relevant to the case at hand.
Principle of Good Governance
Good governance emphasizes the processes by which decisions are made and implemented, rather than focusing on the outcome alone. It ensures that the decision-making process is transparent, inclusive, and accountable. Good governance includes principles such as:
• Participation
• Consensus-building
• Accountability
• Efficiency
• Equity
• Rule of law
• Transparency
Principle of Natural Justice
Natural justice is a procedural safeguard to ensure fairness in decision-making. Although not codified in law, it has evolved through judicial decisions. It requires that justice be done and be seen to be done, particularly in matters affecting individuals' rights and freedoms. It aims to prevent arbitrary decisions by ensuring that affected parties are given a fair opportunity to be heard.
The Principle of Rule of Law
The rule of law is a fundamental principle stating that no one is above the law, including government officials. It ensures that laws govern the land and that every individual, regardless of status, is subject to the law. Rooted in the works of philosophers like Aristotle, the rule of law underpins modern administrative law by limiting arbitrary powers and maintaining legal order.
The Principle of Accountability
Accountability in administrative law means that decision-makers must justify their actions in an appropriate forum, whether politically or legally. Politically, public officials, such as ministers, are accountable to Parliament. Legally, judicial review allows courts to assess whether administrative decisions are made in accordance with the law. This principle is crucial in distinguishing between legitimate government action and arbitrary decision-making.
Classification of Power
The separation of powers is a core principle in constitutional law, ensuring that the executive, legislative, and judicial branches each have distinct roles. This doctrine prevents the concentration of too much power in one branch and ensures checks and balances. The separation of powers has shaped constitutions worldwide, ensuring that the functions of government are clearly delineated, thus preventing the abuse of power.
Objectives of Administrative Law
In recent years, administrative law, which governs the actions of government administrative agencies, has faced challenges and limitations. This decline has led to ineffective operations within numerous governmental bodies, contributing to various economic and environmental crises, such as those involving British Petroleum, Enron, Wall Street, and the automobile industry. Most governmental agencies in the United States fall under the executive branch, with only a few under the judicial or legislative branches.
The primary objectives of administrative law include:
• Regulating Governmental Powers: Ensuring that government powers are exercised within legal boundaries.
• Providing Remedies for Aggrieved Individuals: Offering legal recourse to those affected by administrative decisions or actions.
• Ensuring Equality between the State and the Public: Upholding fairness and equality in administrative processes.
• Promoting Efficient Use of Government Authority: Ensuring that governmental power is used effectively and responsibly.
• Public Welfare: Ensuring the public benefit and utility through effective government programs and services.
• Resolving Disputes between the Government and the Public: Facilitating the resolution of conflicts involving government actions or policies.
• Addressing Social Issues: Helping to identify and resolve social challenges through administrative measures.
• Improving Administrative Performance: Enhancing the efficiency and effectiveness of the administrative processes.
• Upholding the Rule of Law: Ensuring that all actions are in accordance with established laws and principles of justice.
Constitutional and Administrative Law
Constitutional and administrative law deals with the distribution and exercise of governmental power within a state. It encompasses not just the authority to create legal rules but also the accountability of those responsible for enacting, applying, and enforcing these rules. While constitutional and administrative law both regulate the interaction between the state and individuals, they differ from private law areas such as contract or property law, which govern relationships between private persons. The distinction between constitutional law and administrative law is often blurred, as both branches are intertwined. However, one way to differentiate them is to view constitutional law as concerning the overall structure and governance of the state, whereas administrative law regulates the functioning of governmental powers, especially as influenced by the courts.
In the UK, Parliament holds supreme law-making power and exercises it through the passage of statutes, which are a primary source of constitutional law. If a government minister acts unreasonably or illegally, such actions may be subject to judicial review, which is a form of administrative law.
Studying Constitutional and Administrative Law
Unlike other legal subjects, constitutional law sources are not always clearly written in statutes or case law. Many of its principles are based on historical and political factors, often reflecting broader constitutional ideas that can be political in nature. To understand constitutional law, one must engage with current events and real-world issues, as they frequently influence constitutional debates. For instance, significant constitutional questions have arisen in recent years in the UK, such as debates over the repeal of the Human Rights Act 1998, Brexit, and elections
leading to a hung Parliament. Thus, studying these developments enhances one's understanding of constitutional law.
Constitutional and Administrative Law in India
In India, both constitutional and administrative law are parts of public law, and it is often difficult to distinguish between the two, as the boundaries are somewhat artificial. Historically, administrative law was included within constitutional law texts, and no separate, independent treatment was given to it. According to legal scholar Holland, constitutional law outlines the organization of governmental bodies, while administrative law focuses on how they function in practice.
While constitutional law deals with the overall structure of the state, including the powers of different branches and their interactions with individuals, administrative law provides more detailed regulations on the operation of government powers and duties. Constitutional law addresses fundamental principles, while administrative law focuses on specifics and public needs. In countries with written constitutions, like India, the distinction between these two branches is not as clear-cut as in places like England.
In such nations, constitutional law derives from the constitution, while administrative law is based on statutes, judicial precedents, and customs. India, with its written constitution, regulates the powers and roles of the legislature, executive, and judiciary, and its constitutional law sets the foundation for administrative law. As Maitland notes, constitutional law outlines the framework, while administrative law addresses the specific functions of those powers.
The Relationship between Constitutional and Administrative Law in India
Administrative law in India can be assessed based on several criteria:
• The actions must adhere to rules and regulations.
• These rules must comply with the relevant statute.
• Actions and rules should align with constitutional provisions.
• Constitutional amendments must conform to the fundamental structure of the constitution.
Although administrative law exists separately, its overlap with constitutional law is evident in certain areas. This intersection—referred to as the "watershed"—includes mechanisms in the Constitution that control administrative actions, such as Articles 32, 136, 226, 227, 300, and 311, and directives under Part IV. Administrative agencies created by the Constitution, such as those mentioned in Articles 261, 263, and 315, are also part of this overlapping zone. Additionally, constitutional limits on the delegation of powers and the protection of fundamental rights help shape the scope of administrative law.
The Doctrine of Watershed in Administrative Law
The "watershed" doctrine plays an important role in defining the relationship between constitutional and administrative law. It provides a framework for understanding how both branches interact and ensures a clear demarcation of their respective boundaries. English scholars like Dicey and Holland recognized that constitutional and administrative laws are interconnected and mutually dependent.
Evolution of Constitutional and Administrative Law in India
Administrative law has become a critical feature of modern governance and has ancient roots. Traces of administrative law can be found in the governance systems of ancient India, particularly during the Maurya and
Gupta periods, which were characterized by a centralized and organized administration. The rule of Dharma, which emphasized principles of justice and fairness, influenced early administrative practices.
In India, administrative law draws from various sources, including statutes, common law, and constitutional provisions. In countries like the US and UK, administrative law relies on statutes, precedents, and other legal mechanisms. In India, constitutional law serves as the primary source of administrative law, as it sets the framework for governance and the exercise of administrative powers.
Statutes also play a significant role in administrative law, with laws passed by the parliament forming part of the constitutional framework. Additionally, ordinances—issued by the President or state governors during legislative recesses—allow for emergency laws that can impact administrative functions. These ordinances, however, are subject to judicial review and must adhere to constitutional principles.
Notable Case Law
In the Rustom Cavasjee Cooper v. Union of India case, the Supreme Court ruled that ordinances made on improper grounds could be challenged. Similarly, in S.R. Bommai v. Union of India, the Court held that proclamations under Article 356 (President’s Rule) could be subject to judicial review if deemed unconstitutional.
Self Check Exercise-2
Q.1 Constitutional and administrative law is concerned with the distribution and the exercise of power within the state. True/False
Q.2 The quote “Not only should justice be done, but it should be seen to be done” is not in written form but developed by courts in its judicial decisions. True/False
1.4 Summary:
Administrative law is the law governing the Executive, to regulate its functioning and protect the
common citizenry from any abuse of power exercised by the Executive or any of its instrumentalities. It is a new branch of law which has evolved with time and shall continue to
evolve as per the changing needs of the society. The aim of administrative law is not to take away
the discretionary powers of the Executive but to bring them in consonance with the ‘Rule of law’.
1.5 Glossary
• Rule of law - the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power or wide discretionary power.
• Separation of power - the vesting of the legislative, executive, and judiciary powers of government in separate bodies.
• Accountability - accountability is the acknowledgment and assumption of responsibility for actions, products, decisions, and policies including the administration, governance, and implementation within the scope of the role or employment position and encompassing the obligation to report, explain and be answerable.
1.6 Answers to self check exercises
Self Check Exercise-1
Q.1 Ivor Jennings
Q.2 False
Q.3 False
Self Check Exercise-2
Q.1 True
Q.2 True
1.7 References/Suggested Readings
1. https://legaldictionary.net/administrative-law/
2. http://www.duhaime.org/LegalDictionary/A/AdministrativeLaw.aspx
3. https://kalyan-city.blogspot.com/2010/10/concept-of-administrative-law.html
4. https://en.wikipedia.org/wiki/Administrative_law
5. https://www.lawyersnjurists.com/article/explain-the-nature-and-scopes-of-
administrative- law-and-distinguish-it-from-constitutional-law/
6. https://www.lawnotes.in/Scope_of_Administrative_Law
7. https://ezinearticles.com/?The-Importance-of-Administrative-Law&id=4622784
8. https://blog.ipleaders.in/administrative-law-1/
9. https://legaldictionary.net/administrative-law/
10. http://www.duhaime.org/LegalDictionary/A/AdministrativeLaw.aspx
11. https://kalyan-city.blogspot.com/2010/10/concept-of-administrative-law.html
12. https://en.wikipedia.org/wiki/Administrative_law
13. https://www.lawyersnjurists.com/article/explain-the-nature-and-scopes-of-administrative- law-
and-distinguish-it-from-constitutional-law/
14. https://www.lawnotes.in/Scope_of_Administrative_Law
15. https://ezinearticles.com/?The-Importance-of-Administrative-Law&id=4622784
16. https://blog.ipleaders.in/administrative-law-1/
17. Dr. J.J.R. UPADHAYA, Administrative Law (Central Law Agency, 30 D/1 Motilal Nehru Road, Allahabad, 10th edn. 2016).
18. S.P Sathe, Administrative Law (LexisNexis, 14th Floor, Vijay Building, 17 Barakhamba Road, New Delhi-110001, 7th edn. 2004)
19. M.C. Jain Kagzi, The Indian Administrative Law (Universal Law Publishing Co.Pvt. Ltd., New Delhi, 7th edn. 2014).
20. https://www.lawteacher.net/free-law-essays/administrative-law/relationship-between-
constitutional-law-and-administrative-law-administrative-law-essay.
21. https://www.abyssinialaw.com/component/k2/item/294-constitutional-law-and-administrative-law.
22. https://www.lawnotes.in/Relationship_between_Constitutional_Law_and_Administrative_Law
23. http://www.supremecourtcases.com/index2.php?option=com_content&itemid=54&do_pdf=1&i d=6769
1.8 Terminal questions
Q1 Discuss the sources of administrative law.
Q2 What are the objectives of administrative law.
Unit-2
Rule of Law
Structure
2.0 Introduction
2.1 Learning Objectives
2.2 Meaning, Origin, Dicey’s Concept and Exceptions to rule of law
Self-Check Exercise-1
2.3 Rule of law and Indian constitution & Modern concept of rule of law Self-Check Exercise-1
2.4 Summary
2.5 Glossary
2.6 Answer to self-check exercise
2.7 References/Suggested Readings
2.8 Terminal questions
2.0 Introduction
Do you think the law should provide equal protection and punishment to all individuals, regardless of their caste, race, religion, or social status? Or should there be separate laws and procedures for different groups of people? These are some of the questions that arise when studying any legal system. Understanding the concept of the ‘Rule of Law’ can help approach these questions with a clear perspective.
Every country has a system of legal rules that apply to all or certain groups of people. In a democratic society, one of the core principles is that no one is above the law, a concept known as the Rule of Law. This principle ensures that every individual, regardless of their social standing, is subject to the law. Under the Rule of Law, laws are not influenced by a person’s status, whether it be for protecting rights or administering justice.
The Rule of Law is essential to any democratic political structure. It denotes a system where government actions are bound by law, and the law holds supremacy over the arbitrary decisions of officials. Government officers, regardless of their rank, are equal under the law, which promotes fairness and prevents misuse of power. It ensures that no one, not even government officials or the ruling class, is above the law. This principle highlights the idea that everyone, irrespective of their role or authority, is equal before the law.
As stated in the UN Vienna Declaration of 1993, “Human rights are universal, indivisible, interdependent, and interrelated and should be protected and promoted in a fair and equitable manner through something as fundamental and pervasive as the rule of law.” Recent incidents, such as the encounter of gangster Vikas Dubey, have reignited debates about the Rule of Law. Many critics, especially from the opposition, argue that such actions contradict the fundamental principles of law. In a time when encounters and mob lynching are becoming more visible, it is crucial to understand the importance of the Rule of Law in these situations. This article will explore the concept of Rule of Law and trace its evolution to address modern challenges.
2.1 Learning Objectives
After studying this lesson, the learner will be able to
- Know the meaning, definition and origin of rule of law
- Know the A.V Dicey’s concept of rule of law
- Know the exceptions to rule of law and its connect with Indian constitution
- Know the modern concept of rule of law
2.2 meaning, origin, dicey’s concept and exceptions to rule of law
The term "Rule of Law" signifies governance based on law rather than the whims of individuals. The phrase is rooted in the French concept le principe de legalité, meaning the principle of legality.
Prof. Wade defined the Rule of Law as the idea that "the government should be subject to the law, not the law subject to the government." Black's Law Dictionary further specifies it as the supremacy of law, where decisions are made based on established principles or laws, without the influence of personal discretion.
Various scholars have described the Rule of Law as the embodiment of ultimate authority, which no one, regardless of status or power, can bypass. As Lord Denning stated in Gouriet v. Union of Post Office Workers, every individual, regardless of their position, is subject to the law.
The Rule of Law is a foundational principle of constitutional governance, as expressed by Max Weber, who described it as "legal domination"—a government led by law, not by individuals. In practice, this means that everyone, from government officials to citizens, must act according to the law.
The doctrine of the Rule of Law emphasizes the supremacy of law, ensuring no person or entity is above it. Even the actions of the executive branch must be carried out within the boundaries of the law.
In a parliamentary democracy, the Rule of Law imposes a duty on citizens to follow the law. For this to be meaningful, the law itself must be just, not arbitrary or oppressive. One of the main goals of the Rule of Law, like other constitutional principles, is to protect individual freedoms and fundamental rights. It ensures that the government cannot misuse the law to suppress or infringe upon citizens' rights, as outlined in the Bill of Rights.
In the Indian context, the concept of the Rule of Law has evolved. The Supreme Court has clarified and expanded upon the principle through its rulings, in line with A.V. Dicey’s foundational ideas. The Rule of Law is now considered a part of the Constitution's basic structure, and as such, it cannot be altered or removed by Parliament. The ideals of liberty, equality, and fraternity enshrined in the Preamble of the Indian Constitution also reflect the principles of the Rule of Law, ensuring no one faces inhumane, discriminatory, or unjust treatment, even in the pursuit of law and order.
Origin of the Rule of Law
The doctrine of the Rule of Law has ancient roots, with early proponents believed to include Greek philosophers such as Aristotle, Plato, and Cicero. In his work Complete Works of Plato, Plato argued that a state where the law is subordinate to the rulers is doomed to fail. In contrast, states where the law holds supreme are blessed and flourish throughout time.
The idea of the Rule of Law can be traced back to Aristotle, who conceptualized it as a set of rules that align with the natural order.
In England, the Rule of Law began to take shape around 1215 when King John signed the Magna Carta. This act symbolized the monarchy's agreement to be governed by law, acknowledging the supremacy of law over the monarchy. The development of the Rule of Law in England evolved further through the power struggle between the monarchy and Parliament. Eventually, Parliament prevailed, becoming the supreme authority, which led to the creation of laws that limited the monarchy's power. This marked the beginning of the Rule of Law in England, with the executive now being subject to the laws passed by Parliament.
In the United States, the Rule of Law was first articulated in 1776 by constitutional lawyer Thomas Paine. He emphasized that in a free country, law should be regarded as the ultimate authority, or the "king," and not any individual or ruler.
The concept of the Rule of Law was further refined by the influential English constitutional scholar Albert Venn Dicey. In his book The Law of the Constitution, Dicey outlined the Rule of Law as a principle where government powers must always be exercised in accordance with established law. This modern interpretation of the Rule of Law asserts that the functions and duties of government, including all its branches, must be carried out within the confines of the law.
Dicey’s Concept of Rule of Law
Albert Venn Dicey is widely recognized as the key proponent of the Rule of Law, although the origins of his doctrine can be traced back to Sir Edward Coke. Coke introduced the idea that "the King is under God and the Law," a concept that laid the foundation for Dicey's later elaboration. In 1885, Dicey advanced this concept in his book Law and Constitution, providing a detailed framework for the Rule of Law. According to Dicey, the Rule of Law rests on three essential principles:
1. Supremacy of Law
The first principle of Dicey's Rule of Law is the supremacy of law, which asserts that law applies equally to all, including those who govern. Dicey believed that the law should be supreme, meaning that the government cannot wield arbitrary power. Punishment can only be meted out for a violation of law, and it must be in accordance with established legal procedures, not based on the whims of the ruling authority. Dicey also emphasized that discretion in governance is inherently linked to arbitrariness, and therefore, discretion should be avoided to prevent potential abuse of power.
2. Equality Before the Law
The second pillar of Dicey’s Rule of Law is the principle of equality before the law. This means that all individuals, regardless of their social status or position, should be subject to the same laws and be judged by ordinary courts, rather than any special courts or laws designed for certain groups. Dicey argued that special laws or courts undermine the principle of equality and that all citizens should be treated equally under the law.
3. Predominance of the Legal Spirit
The third pillar is the predominance of the legal spirit, which Dicey believed was essential for the effective implementation of the Rule of Law. He argued that the judiciary plays a crucial role in enforcing the law and that the courts should be independent and free from outside influence to ensure impartiality. For Dicey, the protection of individual rights and freedoms was the responsibility of the courts, not merely the written constitution. Judicial independence was, therefore, a fundamental aspect of the Rule of Law.
While Dicey's theory has faced criticism from various perspectives, his core argument—that power must be exercised in accordance with the law, free from arbitrariness, and with equality before the law—remains a vital principle in democratic societies today. Dicey’s emphasis on the protection of fundamental rights and the absence of discretionary power continues to resonate in modern legal and political discourse.
Exceptions to Rule of Law
To meet the practical needs of governance, modern democratic countries have introduced several exceptions to the principles of the Rule of Law outlined by Dicey. These exceptions include the expansion of discretionary powers for the administration, the creation of administrative tribunals, and the normalization of preventive detention. Despite these exceptions, the core principles of the Rule of Law continue to be upheld and promoted.
In India, Dicey’s concept of the Rule of Law is not followed strictly, as certain exceptions exist within the Indian Constitution and other laws. Some examples include:
• Discretionary Powers of the Executive:
The Indian Constitution grants significant discretionary powers to the President and the Governor of a state. For instance, under Articles 72 and 161, the President and the Governor have the authority to grant pardons, reprieves, or remission of punishment and to modify the sentences of convicted individuals. Article 85 provides the President with discretion regarding the prorogation of Parliament and the dissolution of the House of People. Additionally, the Governor has discretionary powers under Article 356 in relation to emergency provisions and can also reserve bills for presidential consideration under Article 200.
Furthermore, police officers have broad authority to arrest individuals without a warrant in cases of cognizable offenses, and criminal courts have discretion in imposing sentences.
• Immunities and Privileges:
The principle of equality before the law in India does not necessarily apply equally to private citizens and public officials. Public officials, such as ministers, local authorities, and public officers, enjoy certain privileges, immunities, and powers that ordinary citizens do not. For example:
1. The President and Governor are not accountable to the courts for their executive functions.
2. No criminal proceedings can be initiated against the President or Governor while they are in office.
3. Civil suits against the President or Governor can only be filed after a two-month notice period.
4. Under international law, visiting heads of state, government officials, and foreign diplomats are not subject to the jurisdiction of local courts while carrying out their official duties.
Self-Check Exercise-1
Q.1 Under Article 200 of the constitution, the Governor of a state can reserve a bill for the consideration of the President. True/False
Q.2 “The Law of the Constitutions” is written by?
2.3 rule of law and indian constitution & modern concept of rule of law
The concept of the Rule of Law is not explicitly defined in the Indian Constitution, though it is referenced in numerous judgments by Indian courts. Unlike the principle "The King can do no wrong," which does not apply in India, all public authorities are subject to the jurisdiction of regular courts and the same laws. The Constitution of India stands as the supreme law of the land, overriding the Judiciary, Legislature, and Executive. These three branches of government are required to operate within the boundaries established by the Constitution.
The Rule of Law is integrated into several provisions of the Indian Constitution. For example, the aims of achieving equality, liberty, and justice are reflected in the Preamble. Article 14 guarantees equality before the law and the equal protection of laws. This ensures that no individual is denied equality or protection by the state. The
implication of Article 14 is that the law is supreme and there is no room for arbitrary decisions, as everyone is governed by the Rule of Law. This principle mandates that the law must treat all individuals equally, without bias, which is a key aspect of the Rule of Law. In the Maneka Gandhi v. Union of India case, the Supreme Court emphasized that Article 14 targets arbitrariness in government actions, ensuring fairness and equality in treatment. The Rule of Law, as a fundamental feature of the Constitution, excludes arbitrary behavior; where arbitrariness exists, the Rule of Law is compromised. Articles 15, 16, and 23 further strengthen the concept of equality by allowing for protective discrimination to ensure that equal opportunities are provided.
Article 13 of the Constitution further supports the Rule of Law, as it allows laws, including rules, regulations, and ordinances, to be struck down if they are inconsistent with the Constitution. In Keshavananda Bharti v. State of Kerala, the Supreme Court affirmed that the Rule of Law is a basic feature of the Constitution. In this case, while the Court upheld Parliament's power to amend the Constitution, it ruled that this power cannot extend to altering the Constitution's core principles.
Fundamental rights, which are inalienable and universal, can only be protected by a state that respects the Rule of Law. These rights are enshrined in Part III of the Indian Constitution and cannot be revoked. They can be enforced through Articles 32 and 226 of the Constitution. The Constitution stands as the supreme legal authority, and any law that contradicts its provisions, especially those concerning fundamental rights, will be invalid. A central principle of the Rule of Law, alongside justice and equality, is liberty. Article 21 guarantees the right to life and personal liberty, stipulating that no person can be deprived of these rights except through a procedure established by law, ensuring the supremacy of the law. This provision also guarantees that individuals cannot be convicted for actions that were not classified as offenses at the time they occurred. The Indian Constitution also recognizes the principles of double jeopardy and protection from self-incrimination.
Article 19, which provides various freedoms to individuals, aligns with the Rule of Law, as these freedoms can only be restricted on reasonable grounds. These restrictions must satisfy the criteria set out in Articles 14, 19, and 21. These three Articles are considered crucial to the Indian Constitution, often referred to as the "Golden Triangle" of the Constitution. In the E.P. Royappa v. State of Tamil Nadu & Another case, the Supreme Court ruled that the state must fulfill all the requirements under Articles 14, 19, and 21 to justify any limitation of a fundamental right.
An essential extension of the Rule of Law is judicial review. Judicial review is a critical component of the Rule of Law as it not only safeguards constitutional principles but also examines the legality of administrative actions. All actions by state authorities and bureaucrats are subject to judicial review and must be accountable to the courts for their reasonableness.
These principles of the Rule of Law, not of arbitrary authority, form the foundation of civilized nations. The Indian Constitution also ensures the independence of the judiciary, which serves as the guardian of the Constitution and the fundamental rights of citizens. Judicial review is regarded as one of the Constitution's basic features, and as such, the Rule of Law is deeply embedded in the structure of the Indian Constitution.
Indian Case Laws
As mentioned earlier, while the Indian Constitution does not explicitly provide for the rule of law, the Supreme Court has affirmed its importance as an essential element of the Constitution through various judgments. Some of the significant cases include:
A.K. Gopalan v. State
This case, also known as the Habeas Corpus case, involved a challenge to the detention orders issued during an emergency, arguing that they violated the principles of the rule of law, which is a fundamental feature of the Indian Constitution. The Supreme Court was asked to decide whether the rule of law exists in India beyond the provisions of Article 21. The majority of the bench answered in the negative, but Justice Khanna, in his dissenting opinion, argued that the rule of law is a cornerstone of any civilized society and a symbol of a free society. He emphasized
that the rule of law is the only way to balance individual liberty and public order. He concluded that even without a specific provision like Article 21, the state cannot deprive a person of their life and liberty without legal authority.
A.K. Kraipak v. Union of India
In this case, the Supreme Court addressed whether the principle of natural justice should apply in administrative functions. The Court held that all state instruments must adhere to the rule of law and discharge their duties in a fair, just, and reasonable manner, forming the fundamental principle of the rule of law. This principle applies universally to all areas of administration, as every branch of the state is governed by the rule of law.
Indira Nehru Gandhi v. Raj Narayan
This case involved a challenge to the 39th Amendment, which placed the election of the President, Prime Minister, Vice-President, and Speaker of the Lok Sabha beyond judicial review. The Supreme Court ruled the amendment unconstitutional, holding that it violated the basic structure of the Constitution, specifically the rule of law. The Court argued that the rule of law, which opposes arbitrariness, does not allow Parliament to pass retrospective laws validating an invalid election.
Bachan Singh v. State of Punjab
This landmark case addressed the imposition of the death penalty under Section 302 of the Indian Penal Code. While the majority of judges held that the death penalty could be imposed in the "rarest of rare" cases, Justice Bhagwati dissented, stating that the death penalty was unconstitutional as it violated Articles 14 and 21 of the Constitution. Justice Bhagwati emphasized that the rule of law prohibits arbitrariness and unreasonableness and argued that the legislative and executive powers must be checked by the independent judiciary to protect citizens' rights.
Sambamurthy v. State of Andhra Pradesh
In this case, the Supreme Court upheld the rule of law as a basic feature of the Constitution. The case involved a challenge to Clause 5 of Article 371-D, which granted the government the power to modify or annul decisions made by an administrative tribunal. Chief Justice Bhagwati ruled that Clause 5 was unconstitutional as it violated the principle of the rule of law. He affirmed that judicial review is an essential aspect of the rule of law, allowing courts to ensure that laws are followed and enforced by the executive and other authorities.
Yusuf Khan v. Manohar Joshi
The Supreme Court in this case reaffirmed that the state has a duty to maintain law and order, ensuring that no act of violence exceeds the limits set by the rule of law.
These cases collectively highlight the growing significance of the rule of law in India, with the judiciary actively working to strengthen and uphold its principles.
Modern Concept of Rule of Law
As observed earlier, the understanding of the Rule of Law has undergone significant modifications to meet contemporary needs. Professor Baxi highlights the evolution of Indian judicial thought on this concept, especially in landmark cases such as Keshavananda, Indira Gandhi, and Habeas Corpus. Over a period of more than 25 years, these cases reflect the changes in how the judiciary has interpreted the Rule of Law. The Supreme Court of India has offered a more liberal and expansive interpretation, broadening the scope of the Rule of Law to emphasize controlled power rather than arbitrary authority.
The modern conception of the Rule of Law has evolved to provide a framework for governments to aspire to, with much development stemming from international discussions. One such key development is the Delhi Declaration of 1959, which was later reaffirmed in Lagos in 1961 by the International Commission of Jurists. This formulation emphasizes the importance of human dignity as a core value, with the Rule of Law ensuring conditions that respect and promote individual dignity. This dignity extends beyond civil and political rights to include social, economic, educational, cultural, and developmental rights. In essence, for the Rule of Law to be truly effective, it must be
accompanied by strong human rights protections, particularly in developing countries like India, where these mechanisms are vital.
Additionally, moderating the original ideas of Dicey in today's context, Professor Wade has expanded the concept of Rule of Law. He includes a necessary focus on the effective control of delegated legislation, particularly when such legislation imposes penalties. Wade emphasizes that laws should be as clearly defined as possible, and that all individuals, whether private citizens or public officials, must be subject to the same ordinary laws. Importantly, he underscores the need for impartial and independent tribunals to determine individuals' rights, ensuring that fundamental rights are safeguarded by ordinary legal systems.
Self-Check Exercise-2
Q.1 Principle of rule of law is the basic structure of the constitution. True/False
Q.2 Judicial Review is not the essential part of rule of law. True/False
2.4 Summary
The judgment mentioned above illustrates the evolving nature of the Rule of Law in India. While the core principles of the Rule of Law are not always followed strictly in India, the application of these principles has been adjusted over time to address the needs of specific situations.
The Rule of Law is a cornerstone of governance in any civilized democracy, serving as a direct counter to arbitrariness. In a democratic country like India, the Rule of Law is a point of pride. In criminal cases, a prescribed legal process is followed: when a crime is committed, the perpetrator is apprehended, subject to judicial approval. Suspects are questioned, evidence is gathered, and interrogations are held. A case is developed, and the court reviews the evidence and testimonies. The accused has the right to defend themselves legally.
After careful examination of the case based on the law, the judiciary delivers a verdict, which can be appealed. This entire process is a standard in all civilized societies, not only because criminal law presumes innocence until proven guilty, but also because it ensures the legitimacy of the system and prevents the arbitrary exercise of power. The essential principle of the Rule of Law is that all individuals, even those accused of crimes, are entitled to basic human rights and due process. Practices like encounter killings directly contradict this principle, undermining due process. Adherence to the Rule of Law is fundamental to the functioning of a democratic society, as without it, democracy becomes a hollow concept.
2.5 Glossary
• Judicial Review - power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution. Actions judged inconsistent are declared unconstitutional and, therefore, null and void.
• The Union executive - consists of the President, the Vice-President, and the Council of Ministers with the Prime Minister as the head to aid and advise the President.
• Fundamental Rights - Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law.
2.6 Answers to self-check exercises
Self-Check Exercise-1
Q.1 True
Q.2 A.V. Dicey
Self-Check Exercise-2
Q.1 True
Q.2 False
2.7 References/Suggested Readings
• https://indiankanoon.org
• http://www.legalserviceindia.com/
2.8 Terminal questions
Q1 Discuss the A.V. Dicey’s concept of rule of law.
Q2 Bring out some case laws which upheld the concept of rule of law in India.
Unit-3
Natural Justice and its Judicial Interpretation
Structure
3.0 Introduction
3.1 Learning Objectives
3.2 Origin & rules of justice
Self-Check Exercise-1
3.3 Components
Self-Check Exercise-2
3.4S ummary
3.5 Glossary
3.6 Answer to self-check exercises
3.7 References/Suggested Readings
3.8 Terminal questions
3.0 Introduction
The principle of Natural Justice originates from the Roman law term 'Jus Natural' and is linked to common law and moral concepts, although it is not explicitly codified. It is an inherent law of nature that does not stem from any specific statute or constitution. The principle of natural justice holds immense significance in civilized societies, where it is respected by all citizens. In earlier times, when industries were governed by strict and inflexible rules regarding employment, the Supreme Court intervened, ensuring the protection of workers' rights through social justice, economic reforms, and statutory protections.
At its core, natural justice refers to a fair and reasonable decision-making process on any given issue. The focus is not necessarily on the outcome of the decision but on the fairness of the process and the parties involved in making that decision. Natural justice extends beyond the idea of fairness and can take different forms depending on the context.
The principle of natural justice is typically based on three main rules:
1. The Right to be Heard: This rule ensures that anyone affected by a decision has the opportunity to present their side of the story and defend themselves before a decision is made.
2. The Rule Against Bias: This principle emphasizes that the decision-making body should be impartial. The decision must be made in a fair and unbiased manner to meet the standards of natural justice.
3. The Rule of Reasoned Decisions: This rule requires that decisions or judgments made by authorities be based on valid, logical, and justifiable grounds. The reasoning behind the decision should be clearly provided.
3.1 Learning Objectives
After studying this lesson, the learner will be able to
- Know the meaning and origin of natural justice
- Know the situations in which natural justice can be claimed
- Know the rules and components of natural justice
- Know the components of natural justice
3.2 Origin & rules of justice
The principle of natural justice is an ancient concept with roots dating back to early civilizations. The Greeks and Romans were aware of this idea, and it was acknowledged during the time of Kautilya and in his work Arthashastra. The concept also appears in biblical stories, such as the case of Adam and Eve. In the Bible, when
Eve and Adam ate the forbidden fruit, they were given a chance to explain themselves before receiving any punishment, which reflects the principle of natural justice, allowing them an opportunity to defend themselves.
The notion of natural justice was later adopted by English jurists, who derived the term from the Roman phrases jus naturale and lex naturale, which established the foundation for natural law and equity.
In essence, natural justice can be defined as the understanding of what is morally right and wrong. In India, this concept was incorporated early on. For example, in the case of Mohinder Singh Gill v. Chief Election Commissioner, the court affirmed that fairness should be an integral part of all actions, whether judicial, quasijudicial, administrative, or quasi-administrative.
Purpose of the Principle:
• To ensure equal opportunities for being heard.
• To uphold fairness.
• To address gaps and shortcomings in the law.
• To protect fundamental rights.
• To safeguard the basic features of the Constitution.
• To prevent the miscarriage of justice.
The principles of natural justice require that actions be free from bias, and all parties involved should have a fair chance to present their case. Additionally, the reasons behind decisions must be communicated to the relevant parties.
The Supreme Court has emphasized that judicial and administrative bodies must aim to arrive at reasonable and justifiable decisions. The primary objective of natural justice is to avoid miscarriages of justice.
A committee, known as the "Ministers Power," outlined three essential procedural elements related to natural justice:
1. A person should not be a judge in their own case.
2. No one should be condemned without being heard.
3. A party is entitled to know the reasons for decisions made by the authority.
When it can be claimed?
Natural justice applies in situations involving judicial or quasi-judicial actions, such as those carried out by panchayats, tribunals, and similar bodies. This principle encompasses fairness, fundamental moral guidelines, and the identification of various biases. It addresses the necessity of upholding natural justice and identifies specific scenarios where these principles might not be applicable.
In the case of Province of Bombay v. Khushaldas Advani, the court ruled that natural justice must be applied in statutory matters, as it is a fundamental principle that ensures fairness and justice.
Effects on Functions:
• Administrative actions
• Civil consequences
• Doctrine of legitimate expectation
• Fairness in action
• Disciplinary proceedings
For example, in the case of Board of High School v. Ghanshyam, a student who was caught cheating during an examination was barred from continuing. The Supreme Court ruled that the student could not file a Public Interest Litigation against the examination board in this situation.
A key case illustrating the importance of natural justice is Eurasian Equipment & Co. Ltd. v. State of West Bengal. In this case, several executive engineers were blacklisted. The Supreme Court ruled that a person cannot be blacklisted without providing a valid, reasonable justification, and that the individual must be given a fair opportunity to be heard before such a decision is made.
Rules of Natural Justice
• NEMO JUDEX IN CAUSASUA
• AUDI ALTERAM PARTEM
• REASONED DECISION
Nemo Judex In Causa Sua
The principle "Nemo Judex In Causa Sua" translates to "No one should be a judge in their own case," emphasizing the importance of impartiality in legal proceedings. This rule seeks to prevent biases, which may arise consciously or unconsciously, from affecting the fairness of a decision. The purpose of this principle is to ensure that judges make decisions based solely on the evidence presented and the facts of the case, without any personal interest or prejudice.
Types of Bias:
1. Personal Bias
Personal bias arises when a decision-maker has a personal relationship with one of the parties involved, which may lead to an unfair decision. This could be due to family, friendship, or other personal ties that affect the impartiality of the judgment. To successfully challenge a decision based on personal bias, the challenger must provide reasonable grounds for the bias.
Example: In Ramanand Prasad Singh v. UOI, the court held that the selection procedure was not invalidated even though one panel member’s brother was a candidate. However, to ensure fairness, the biased member could have been excluded from the panel.
2. Pecuniary Bias
Pecuniary bias arises when the decision-maker stands to gain or lose financially from the outcome of a case. Even a small financial interest can create the appearance of bias and affect the fairness of the decision.
3. Subject Matter Bias
This type of bias occurs when the decision-maker is directly or indirectly involved with the subject matter of the case. For instance, if a judge has a vested interest in the case’s outcome, it may compromise their ability to make an impartial decision.
4. Departmental Bias
Departmental bias happens when the administrative body has an internal interest in the outcome. If not properly checked, such bias can affect the fairness of the proceedings and lead to unjust decisions.
5. Policy Notion Bias
This bias arises from preconceived ideas or policy decisions held by the decision-maker. It may influence their judgment, even when the facts of the case do not align with the preconceived notions.
6. Bias Due to Obstinacy
In certain cases, bias can arise from obstinacy, where a judge refuses to reconsider or correct their own decisions. A notable example is when a judge of the Calcutta High Court upheld his own judgment on appeal, which violates the principle that no judge should sit in judgment over their own decisions.
Audi Alteram Partem
The principle Audi Alteram Partem, meaning "hear the other side," is a fundamental rule of natural justice. It ensures that no one can be condemned or punished without having the opportunity to be heard. This rule requires that both parties in a dispute be given a fair chance to present their case before any decision is made.
In practice, this principle mandates that a person should be notified of the charges against them and allowed to respond before any penalties are imposed. The components of a fair hearing may vary depending on the case and the authority involved, but the core idea remains that individuals should not be penalized without a valid, reasonable basis. This rule is essential to ensuring fairness in judicial and administrative processes.
Self-Check Exercise-1
Q.1 What is the meaning of Audi Alteram Partem? means that no person can be condemned or punished by the court without having a fair opportunity of being heard
Q.2 “No one should be a judge in his own case” . True/False
3.3 Components of Fair Hearing
1. Issuance of Notice
A proper and valid notice must be provided to the concerned parties involved in a case, ensuring they are aware of the proceeding and the charges against them. Even if the law does not explicitly require a notice, one must be issued before decisions are made. The case of Fazalbhai v. Custodian emphasizes this requirement. Additionally, in Kanda v. Government of Malaya, the court ruled that notices should clearly specify the facts and circumstances surrounding the issue, allowing the individual to prepare a defense.
The notice should outline the specific charges against the individual, and any punishment should only relate to the charges listed in the notice, not any others.
2. Right to Present the Case and Evidence
Once the notice is received, the individual must be given a reasonable amount of time to prepare and present their case effectively. The refusal to allow this preparation must not be arbitrary or unreasonable.
3. Right to Cross-Examine
A fair hearing includes the right to cross-examine the evidence or statements presented by the other party.
If this right is denied, it violates the principles of natural justice. Necessary documents and copies should be provided to the accused, and failing to do so can encroach upon natural justice principles. The Indian Evidence Act, 1872 (as amended), defines cross-examination under Section 137.
There are exceptional cases where cross-examination might be denied, such as in the case of Hari Nath Mishra v. Rajendra Medical College, where a male student accused of inappropriate behavior was not
allowed to cross-examine a female student, to prevent embarrassment. Similarly, in Gurubachan Singh v. State of Bombay, keeping a party’s identity confidential may be necessary due to threats to their safety.
4. Right to Legal Representation
Every party involved in an inquiry has the right to be represented by a legal practitioner. This right applies equally to both the party and the department, allowing for fair representation during proceedings, as shown in the case of Sanghi Textile Processor v. Commissioner.
Exceptions to Natural Justice
1. During periods of emergency.
2. When public interest is at stake.
3. When there is an express statutory provision.
4. In cases where the issue is not ofa serious nature.
5. If the decision does not significantly affect the individual’s status.
Applicability of Natural Justice
Natural justice applies in the following contexts:
1. Courts, except in ex-parte cases.
2. Tribunals.
3. Authorities granted discretionary powers, within the bounds of legal limitations.
Reasoned Decision
A reasoned decision is fundamental to ensuring fairness and transparency. It is based on three key grounds:
1. The aggrieved party should have the opportunity to demonstrate to appellate or revisional courts why their case was rejected.
2. A reasoned decision provides clarity and satisfaction to the party who is affected by the ruling.
3. The requirement for reasoned decisions serves as a safeguard against arbitrary actions by the judiciary or executive authorities.
Self-Check Exercise-2
Q.1 Right to Cross Examination is one of the important components of natural justice. True/False
Q.2 Natural Justice is not applicable in tribunals. True/False
3.4 Summary
The principles of natural justice have been embraced by the judiciary as a safeguard for public rights, ensuring that administrative decisions are not made arbitrarily. These principles focus on fairness and play a vital role in upholding just practices throughout legal proceedings. They are crucial in ensuring that fairness is maintained at every stage, particularly when judicial functions are delegated to other authorities.
The central objective of natural justice is to prevent any miscarriage of justice. It is important to recognize that any decision or order that contradicts the principles of natural justice will be considered null and void. Therefore, these principles are fundamental to ensuring the validity of administrative decisions.
The application of natural justice is not confined to specific cases; instead, it varies depending on the nature of the jurisdiction granted to administrative bodies and the rights of individuals involved.
3.5 Glossary
• Legal - connected with the law
• Tribunal - a type of court with the authority to decide who is right in particular types of dispute or disagreement.
3.6 Answers to self check exercises
Self-Check Exercise-1
Q.1 It means that no person can be condemned or punished by the court without having a fair opportunity of being heard.
Q.2 True
Self-Check Exercise-2
Q.1 True
Q.2 False
3.7 References/Suggested Readings
• https://www.academia.edu/23092337/Title_PRINCIPLES_OF_NATURAL_JUSTICE_IN_THE_LIGHT_OF _ADMINISTRATIVE_LAW_An_Analytical_and_comprehensive_study_of_Principle_of_natural_justice_es pecially_in_the_field_Of_administrative_law
• https://www.nacenkanpur.gov.in/download3.inc.php?rid=164
• Mohinder Singh Gill vs. Chief Election Commissioner AIR 1978 SC 851
• Province of Bombay vs. Khushaldas Advani AIR 1950 SC 222
• Board of high school vs. Ghanshyam AIR 1962 SC 1110
• High water mark case- Eurasian equipment and company limited vs. State of West Bengal AIR 1975 SC 266
• Ramanand Prasad Singh vs. UOI, AIR 1996 SCC 64
• Muralidhar vs. Kadam Singh AIR 1954 MP
• Fazalbhai vs. custodian, AIR 1961 SC 284
• Kanda vs. Government of Malaya, 1962 A.C. 322
• Hari Nath Mishra vs. Rajendra Medical College, A.I.R. 1973 S.C. 1260
• Gurubachan Singh vs. State of Bombay, A.I.R. 1952 S.C. 221
• Ludhiana food product, 1990 (47) ELT 294
• A.K.Roy, AIR 1982 SC 710
• Sanghi textile processor vs. Commissioner, 1991 (55) ELT 151 A.P.
3.8 Terminal questions
Q1 Discuss the various situations in which natural justice can be claimed.
Q2 Enumerate the rules of natural justice.
Unit-4
Administrative Discretion & Judicial Control
Structure
4.0Introduction
4.1 Learning Objectives
4.2 Need & Sources of administrative law
Self-Check Exercise-1
4.3 Modes of Judicial Control & Abuse of Discretion
Self-Check Exercise-2
4.4S ummary
4.5 Glossary
4.6 Answer to self-check exercises
4.7 References/Suggested Readings
4.8 Terminal questions
4.0 Introduction
Administrative law refers to the branch of law that governs the powers, functions, and responsibilities of various state organs. There is no universally accepted definition of administrative law, as its meaning varies among different scholars and legal theorists.
Ivor Jennings described administrative law as the set of rules concerning administration, which outlines the organization, powers, and duties of administrative authorities. However, this definition is overly broad and does not distinguish between administrative and constitutional law, nor does it address the manner in which powers and duties are exercised.
The development of administrative law is closely linked to the expanding roles of governments. Historically, states were focused primarily on maintaining order and safeguarding from external threats. While these remain essential functions, a state limited to this traditional role risks losing its legitimacy. With rising political awareness, citizens now demand more from their governments. As a result, modern states are working toward becoming welfare states, focusing on enhancing the social and economic well-being of their populations. This shift has led to the government taking on numerous complex tasks, including addressing issues in health, education, pollution, and social inequality.
As society evolves, so do the challenges it faces, and these challenges often require increased administrative involvement. Governments have taken over functions once handled by private enterprises, further driving the growth of administrative law to address these new responsibilities.
4.1 Learning Objectives
After studying this lesson, the learner will be able to
- Know the need and sources of administrative law
- Acquaint with the modes of Judicial control
- Know the abuse of discretion
- Know the principles of natural justice and their exceptions
4.2 Need & Sources of Administrative Law
A state typically has three main branches: the legislature, the executive, and the judiciary. The legislature's role is to create laws, the executive is responsible for enforcing those laws, and the judiciary oversees the application of laws, ensuring justice is served and resolving disputes.
However, there are instances when the legislature cannot produce the necessary quantity or quality of legislation due to constraints such as time, the technical complexity of the issues, or the inflexibility of laws. Similarly, the judicial process can be slow, costly, and overly complex. To address these limitations, the executive branch has been granted certain powers to fill the gap between the legislature and judiciary.
The ambit of administration is wide and embraces following elements:-
1. It makes policies,
2. It executes, administers and adjudicates the law
3. It exercises legislative powers and issues rules, bye- laws and orders of a general nature.
Sources of Administrative Law
1. Constitution of India: The Constitution serves as the primary foundation for administrative law in India. Article 73 grants the executive power of the Union over matters for which Parliament has legislative authority. Similarly, Article 162 provides similar powers to the States. While the Constitution does not enforce a strict separation of powers, it lays the framework for administrative functions, including the establishment of tribunals, public sector responsibilities, and government accountability.
2. Acts/Statutes: Legislative bodies at both the central and state levels pass Acts to maintain order, collect taxes, and promote social and economic development. These laws empower administrative bodies to carry out various functions. They outline the administration's duties, limit their powers in certain areas, and establish systems for addressing grievances from individuals affected by administrative decisions.
3. Ordinances, Administrative Directions, Notifications, and Circulars: Ordinances are temporary laws enacted by the executive when the legislature is not in session, allowing the government to respond to urgent situations. Administrative directions, notifications, and circulars are issued by the executive under the authority of various Acts to ensure the effective implementation of the law.
4. Judicial Decisions: The judiciary plays a crucial role in shaping administrative law. Courts serve as the ultimate decision-makers in disputes involving the government and its citizens. Through their rulings, courts establish legal principles that guide future administrative actions, including the proper use of government power and liability for breaches of duty or tortious acts by government officials.
❖ Administrative Discretion
It is practically unavoidable for the government to function without granting some level of discretion to its officials, given the variety of situations and circumstances that arise. However, because this discretion can potentially be misused, it is crucial to establish mechanisms that ensure it is exercised fairly and responsibly.
Administrative discretion refers to the authority granted to administrative bodies to make decisions from a range of alternatives, but within the confines of reason, justice, and established rules, rather than personal preferences. The use of discretion must be grounded in legality and consistency, avoiding arbitrariness or vague and unpredictable actions.
❖ Judicial Control over Administrative Actions
Public administration holds significant authority in addressing the needs of citizens within a modern democratic welfare state. This substantial power creates opportunities for arbitrary actions. Therefore, it is essential to regulate this authority through judicial oversight.
The primary goal of judicial control is to prevent the abuse or misuse of power by administrative authorities, ensuring that individuals are treated fairly and justly.
Modes of Judicial Control
(A) Constitutional: The Indian Constitution stands as the supreme law, with all state organs deriving their authority from it. The Constitution explicitly enables judicial review, allowing the judiciary to examine laws to ensure they comply with constitutional principles. If any law is found to violate the Constitution, the court has the power to declare it invalid and void.
Judicial Review: One of the most significant checks on administrative actions is judicial review. This refers to the power of the courts to invalidate legislative and executive actions if they are deemed unconstitutional. Judicial review allows higher courts to assess and nullify actions taken by government bodies that conflict with constitutional standards. It does not involve revisiting the outcome of decisions but instead focuses on reviewing how those decisions were made. Judicial review ensures that the process of decision-making aligns with constitutional mandates.
Concerns during Judicial Review
Judicial review by the court focuses on the following aspects:
1. Whether the decision-making authority has exceeded its granted powers.
2. Whether an error of law has been made.
3. Whether there has been a violation of the principles of natural justice.
4. Whether the decision made is one that no reasonable tribunal would have arrived at.
5. Whether there has been an abuse of power.
Judicial review occurs at two key stages: (i) During the delegation of discretionary power, and (ii) When the administrative discretion is exercised.
(i) Judicial Review at the Stage of Delegation of Discretion
The court oversees the delegation of discretionary powers to administrative authorities by assessing the constitutionality of the law under which these powers are granted, particularly with regard to the fundamental rights outlined in Part III of the Indian Constitution. If the law grants broad and ambiguous discretionary powers, it can be declared ultra vires under Articles 14, 19, and other provisions of the Constitution.
• Administrative Discretion and Article 14: The principle of equality under Article 14 does not demand that everyone be treated identically, disregarding their differences. In fact, treating unequals equally would violate the right to equality. Therefore, reasonable classification is permitted, provided there is a rational connection between the classification and its objective, and it is not applied arbitrarily. The courts ensure that administrative bodies do not engage in unjustified classifications.
• Administrative Discretion and Article 19: Article 19 guarantees specific freedoms to Indian citizens, but these freedoms are not absolute. Restrictions can be imposed, but they must be reasonable and are subject to judicial review. Administrative discretion may affect these freedoms, and the court ensures that such restrictions do not exceed the limits set by the Constitution. The general rule is that executive power should not be exercised arbitrarily, and there must be appropriate oversight to prevent unchecked authority.
(ii) Judicial Review at the Stage of Exercise of Discretion
In India, courts have developed various approaches to regulate the exercise of administrative discretion, generally falling into two categories:
1. Abuse of Discretion: This occurs when an authority fails to exercise its discretion in a fair or appropriate manner.
2. Non-application of Mind: This refers to a situation where the authority is deemed not to have properly considered the relevant factors in making a decision.
Self-Check Exercise-1
Q.1 Administrative law determines the organization, powers and duties of administrative authorities. True/False
Q.2 Judicial Review is the biggest check over administrative discretion. True/False
4.3 MODES OF JUDICIAL CONTROL & ABUSE OF DISCRETION
ABUSE OF DISCRETION
| Malafides | If discretionary power is used by an authority with dishonest intentions or in bad faith, the court can annul the action. Malafide, or bad faith, refers to actions taken with corrupt motives or dishonest intentions. When applied to the exercise of statutory powers, it may involve dishonesty (or fraud) and malice. A power is considered exercised fraudulently if the individual using it seeks to achieve a goal that is different from the one for which the power was originally granted. |
|---|---|
| | | |
|---|---|---|
| Irrelevant considerations | When a statute grants power for a specific purpose, using it for a different objective is not considered a legitimate use of that power and may be invalidated by the courts. If an administrative authority considers factors or circumstances that are irrelevant or unrelated to the purpose outlined in the statute, the administrative action can be deemed invalid. |
| Leaving out relevant considerations | The administrative authority exercising the discretionary power is required to take into account all the relevant facts. If it leaves out relevant consideration, its action will be invalid. |
| Arbitrary orders | The order made should be based on facts and cogent reasoning and not on the whims and fancies of the adjudicatory authority. |
| Improper purpose | The discretionary power is required to be used for the purpose for which it has been given. If it is given for one purpose and used for another purpose it will amount to abuse of power. |
| Colourable exercise of power | When discretionary power is used by an authority for the intended purpose but, in reality, is exercised for a different reason, it is considered a misuse of discretion. This is referred to as a "colourable exercise" of power and can lead to the action being deemed invalid. |
| | Noncompliance with procedural requirements and principles of natural justice | If a statute specifies mandatory procedural requirements and they are not followed, the exercise of power will be deemed invalid. The court determines whether the procedural requirements are mandatory or merely directive. Additionally, the principles of natural justice must be adhered to in such cases. |
| | Exceeding jurisdiction: | The authority is required to exercise the power within the limits or the statute. Consequently, if the authority exceeds this limit, its action will be held to be ultra vires and, therefore, void. |
(b) Non Application of Mind
• Acting under Influence: When an authority exercises its discretionary powers based on instructions or pressure from a superior, rather than making an independent decision, it is considered as failing to exercise its own discretion. In such cases, the decision or action taken is invalid because the authority is not genuinely applying its own judgment.
Case Law: Commissioner of Police v. Gordhandas Bhanji, 1952
Facts: The Police Commissioner, responsible for issuing licenses for cinema theatre construction, granted a license but later revoked it under the government's direction.
Judgment: The cancellation was deemed invalid as the Commissioner did not independently apply his judgment and instead acted based on the government's instructions.
• Self-Imposed Restrictions: When an authority limits its discretion by adhering strictly to predetermined policies or rules, it undermines the individual assessment of each case. Discretionary power must be exercised based on the specifics of each case, and fixed rules should not unduly restrict the authority's ability to make decisions.
• Mechanical and Careless Decision-Making: When an authority fails to carefully consider a matter requiring discretion, and acts in a mechanical or negligent manner, the decision is considered legally invalid due to the lack of genuine deliberation.
(A) Statutory: The method of statutory review can be divided into two parts:
(i) Statutory appeals: There are some Acts, which provide for an appeal from statutory tribunal to the High Court on point of law. e.g. Section 30 Workmen’s Compensation Act, 1923.
(ii) Reference to the High Court or statement of case: There are several statutes, which provide for a reference or statement of case by an administrative tribunal to the High Court
(B) Ordinary or Equitable
In addition to the remedies previously discussed, there are other common remedies available to individuals challenging administrative actions. These remedies are provided by ordinary courts under regular laws and are also referred to as equitable remedies. They include the following:
1. Injunction: An injunction is a preventative legal remedy where a court orders an individual or entity to stop performing a specific action or to refrain from a wrongful act that is either already happening or is about to happen. In India, injunctions are governed by the Specific Relief Act, 1963. This remedy can be issued against both administrative and quasi-judicial bodies to prevent them from acting beyond their legal powers or in violation of the law. It is particularly useful in cases where an administrative body is engaging in acts beyond its authority (ultra vires).
(a) Prohibitory Injunction: A prohibitory injunction prevents the defendant from engaging in an act that would infringe upon the plaintiff's legal rights. It can take the following forms:
1. Interlocutory or Temporary Injunction: A temporary injunction is a provisional remedy granted to maintain the current situation until the court hears the case and delivers a final decision. It can be granted at any stage of a lawsuit and is regulated by the Civil Procedure Code.
2. Perpetual Injunction: A perpetual injunction is issued after the full proceedings and is intended to provide a final resolution on the rights of the parties. While it may not always be expressed as having an indefinite duration, it could be granted for a specific period or contingent on certain conditions. The court may also suspend its operation temporarily to allow the defendant to comply with imposed conditions, after which the plaintiff has the opportunity to respond.
(a) Mandatory Injunction: A mandatory injunction is granted when it is necessary to compel the performance of specific actions to prevent the violation of a legal duty. This type of injunction requires the defendant to take corrective measures or to fulfill an obligation that the court deems necessary. It may require the defendant to restore a situation to its original state or undo any actions that have already been taken. Essentially, it not only prevents the defendant from continuing wrongful conduct but also imposes a positive duty to act in a specific way.
2. Declaratory Action: In someInjcuanscetsionwhere wrong has been done to a person by an administrative act, judgments may be the appropriate remedy. Declaration may be taken as a judicial order issued by the court declaring rights of the parties without giving any further
Mandatory
Prreoliheifb.itory
3. Action for damages: If any injury is caused to an individual by wrongful or negligent acts
Perpetu
Interlocutory Perpetu
of the Government servant, the aggrieved person can file suit for the recovery of damages
from the Government concerned.
Self-Check Exercise-2
Q.1 What do you understand by injunction? It is a judicial process by which one who has invaded or is threatening to invade the rights of another is restrained from continuing or commencing such wrongful act.
Q.2 Malafides and Irrelevant considerations comes under abuse of discretion.True/False
4.4 SUMMARY: in summary, the unit on judicial control provides a comprehensive exploration of the mechanisms through which courts ensure accountability and fairness in administrative actions. By delving into principles such as judicial review, jurisdictional competence, and procedural propriety, students gain a nuanced understanding of how the judiciary upholds the rule of law. This Unit
underscores the vital role of judicial control in balancing governmental powers, protecting individual rights, and maintaining the integrity of the legal system. As future leaders in law and governance, postgraduate students are encouraged to critically engage with these concepts to contribute meaningfully to the evolution of administrative justice.
Moreover, the Unit elucidates the dynamic relationship between administrative discretion and judicial oversight, emphasizing the importance of robust legal frameworks in democratic societies. By analyzing landmark cases and theoretical perspectives, students are equipped to navigate complex legal scenarios and advocate for equitable outcomes. This exploration not only enhances their theoretical understanding but also cultivates practical skills essential for effective legal practice. Ultimately, the study of judicial control inspires a commitment to upholding constitutional principles and ensuring accountability in public administration, thereby reinforcing the foundational pillars of justice and governance in contemporary society.
4.5 Glossary
• Discretion - the freedom and power to make decisions by yourself.
• Statutory - decided or controlled by law.
• Ordinance - an order or rule made by a government or somebody in a position of authority
4.6 Answers to self check exercisesSelf-Check Exercise-1
Q.1 True
Q.2 True
Self-Check Exercise-2
Q.1 It is a judicial process by which one who has invaded or is threatening to invade the rights of another is restrained from continuing or commencing such wrongful act.
Q.2 True
4.7 References/Suggested Readings
• https://www.academia.edu/23092337/Title_PRINCIPLES_OF_NATURAL_JUSTICE_IN_THE_LIGHT_OF _ADMINISTRATIVE_LAW_An_Analytical_and_comprehensive_study_of_Principle_of_natural_justice_es pecially_in_the_field_Of_administrative_law
• https://www.nacenkanpur.gov.in/download3.inc.php?rid=164
• Mohinder Singh Gill vs. Chief Election Commissioner AIR 1978 SC 851
• Province of Bombay vs. Khushaldas Advani AIR 1950 SC 222
• Board of high school vs. Ghanshyam AIR 1962 SC 1110
• High water mark case- Eurasian equipment and company limited vs. State of West Bengal AIR 1975 SC 266
• Ramanand Prasad Singh vs. UOI, AIR 1996 SCC 64
• Muralidhar vs. Kadam Singh AIR 1954 MP
4.8 Terminal questions
Q1 Discuss the various various modes of judicial control on administration.
Q2 Bring out the various points to elucidate the abuse of administrative discretion.
Q3 What are the various sources of administrative law.
UNIT-5
PRINCIPLES OF NATURAL JUSTICE
Structure
5.0Introduction
5.1 Learning Objectives
5.2 Principles of Natural Justice
Self-Check Exercise-1
5.3 Exception to natural justice & effect of failure of natural justice
Self-Check Exercise-2
5.4S ummary
5.5 Glossary
5.6 Answer to self-check exercise
5.7 References/Suggested Readings
5.8 Terminal questions
5.0 Introduction: A fundamental principle in the administration of justice is that justice must not only be executed but also perceived to be executed. This is essential for fostering public trust in the judicial system. The concept of natural justice, rooted in Common Law, outlines procedural principles established by judges.
While the principles of natural justice do not consist of fixed, unchanging rules, their application can vary based on the situation. Nonetheless, these principles form the core upon which judicial oversight of administrative actions is built. In India, the principles of natural justice are derived from Articles 14 and 21 of the Constitution. Courts have consistently emphasized the necessity for administrative bodies to adhere to basic fair procedures, including these natural justice principles.
Learning Objectives
After studying this lesson, the learner will be able to
- Know the principles of natural justice
- Acquaint with exception of natural justice
- Know effect of failure of natural justice
5.2 Principles of Natural Justice:-
The concept of natural justice encompasses several principles, one of which is the Rule Against Bias (nemojudex in causa sua). This rule asserts that an individual should not act as a judge in their own
case. Bias refers to any prejudice, whether conscious or unconscious, that affects a person's judgment regarding a party or issue. Bias can be categorized into three types:
• Pecuniary Bias: The prevailing judicial opinion is that any financial interest, however minimal, that an adjudicator may have in the matter at hand can invalidate the process. A financial interest, no matter how small, disqualifies a person from serving as a judge.
• Personal Bias: Various situations may lead to personal bias, such as if a judge has a close personal relationship with one of the parties involved—whether through friendship, family ties, or professional connections. Hostility toward a party may also create a bias. In such cases, the judge must recuse themselves as the bias would undermine the fairness of the decision.
• Subject Matter Bias: This occurs when a judge has a personal stake in the issue being decided or a direct connection with the case. To justify disqualification on these grounds, the link between the judge and the matter in dispute must be both close and direct.
Subject matter bias can be further divided into the following categories: a) Partiality or direct involvement with the issue at hand b) Departmental bias c) Prior public statements or preconceptions about the matter d) Acting under external influence
Another core principle of natural justice is the Rule of Fair Hearing (audi alteram partem), which ensures that no individual is judged without having the opportunity to be heard. This rule mandates that both parties be allowed to present their case before a decision is made. Key components of this principle include:
• Right to Notice: A fair hearing begins with notice from the relevant authority, informing the affected individual of the charges or claims against them. Without proper notice, an individual cannot adequately prepare a defense. The notice should be clear, unambiguous, and allow sufficient time for preparation.
• Right to Present a Case and Evidence: The individual facing proceedings must be given a full opportunity to present their defense, which typically includes submitting written statements and, where applicable, presenting oral arguments.
• Right to Rebut Adverse Evidence: To ensure fairness, the adjudicator must disclose any evidence that may be used against a party, giving them the chance to challenge or rebut it.
o Cross-Examination: Cross-examination is the process by which a party can question a witness brought by the opposing side. Its purpose is to expose inconsistencies or falsehoods in the witness's testimony.
o Legal Representation: While legal representation is not mandatory in all administrative proceedings, its denial in complex, technical, or serious matters can violate the principles of natural justice. In such cases, access to legal counsel ensures that the individual can effectively present their defense.
• Disclosure of Evidence: For a hearing to be fair, all material evidence that will be used against a party must be made available to them. This allows the affected party to challenge or respond to the evidence adequately.
• Reasoned Orders: A reasoned decision, or a "speaking order," is an essential part of natural justice. It ensures transparency by providing the reasoning behind the decision. Parties have the right to understand the rationale for any decision made against them, which is why many authorities are legally obligated to explain their decisions in detail.
By ensuring these principles are adhered to, the process of adjudication is made fair and just, preserving the integrity of the legal system.
Self-Check Exercise-1
Q.1 What is subject matter bias? A judge may have a bias in the subject matter, which means that he himself is a party, or has some direct connection with the litigation. To disqualify on the ground of bias there must be intimate and direct connection between adjudicator and the issues in dispute
Q.2 Judicial Review is the biggest check over administrative discretion. True/False
5.3 Exceptions to Natural Justice
Statutory Exclusion: The principles of natural justice may be excluded if a statute explicitly or implicitly provides for such exclusion. In these cases, courts will uphold the statutory provisions. However, in India, since Parliament is not above the Constitution, any statutory exclusion must align with constitutional principles and can be challenged if it contradicts constitutional provisions.
Emergency Situations: In certain urgent or emergency situations where immediate action is necessary, the full application of natural justice may be waived. For instance, when swift action is required to protect public safety or morality, the usual requirement for a pre-decision hearing can be bypassed to prevent delay that could harm public interest.
Temporary Disciplinary Action: The rules of natural justice do not necessarily apply to interim disciplinary actions. For example, if an employee is suspended pending an investigation, this suspension is a temporary measure, and the application of natural justice does not usually extend to such interim orders.
Academic Decisions: In cases where a student is expelled from an educational institution due to poor academic performance, the principles of natural justice may not be applicable.
Practical Limitations: When an authority has to deal with a large number of individuals, it may be impractical to offer each person an opportunity to be heard. In such circumstances, courts may not insist on strict adherence to the rules of natural justice.
Effect of Failure of Natural Justice
Government Accountability
The Indian Constitution permits both central and state governments to engage in contracts.
Key Elements for a Valid Government Contract:
For a contract with the government to be valid and enforceable, the following criteria must be met:
1. The contract must be made in the name of the President or Governor of the respective state.
2. The contract must be executed in writing.
3. The execution should be carried out by an individual authorized by the President or Governor.
If a government contract complies with these requirements, the President or Governor becomes personally accountable. The Supreme Court has clarified that these conditions are mandatory, and contracts made without adherence to them are void. Such contracts cannot be ratified or enforced.
Quasi-Contractual Accountability
Under Section 70 of the Indian Contract Act, 1872, when an individual performs a service or delivers something for another person who benefits from it, the beneficiary is obliged to compensate the individual or restore what was delivered. If the criteria in Section 70 are met, even the government may be required to compensate for services rendered or work done by an individual on its behalf.
Tort Liability
A tort is a civil wrong resulting from the breach of a legal duty or a non-contractual obligation, with the primary remedy being damages. The breach of a duty owed to the public distinguishes torts from civil wrongs arising from contractual violations. Not all civil wrongs are classified as torts, as torts arise from a duty owed to the general public, whereas contract breaches are specific to the parties involved.
Vicarious Liability: When one person is held accountable for the actions of another, it is referred to as vicarious liability. For instance, if a servant causes harm through negligence, both the servant and their employer can be held liable. Similarly, the state may be vicariously liable for torts committed by its employees in the course of their duties.
Compensation: If a public servant acts negligently, it may be difficult to obtain compensation directly from the individual, especially if the act was unintentional. In such cases, the focus should be on providing compensation to the affected party rather than punishing the public servant. Therefore, like any employer, the state should be held vicariously liable for the wrongful actions of its employees.
Indian courts are increasingly recognizing cases of administrative negligence and excesses, leading to decisions where the government is held liable for damages, even when the defense of sovereign immunity might have otherwise absolved it.
Responsibility of Public Servants
The state's liability must be differentiated from the accountability of individual state officers. If public servants exceed their authority or act unlawfully, they are personally liable. However, public servants who act in good faith and within the scope of their duties, without bias or malice, cannot be held personally liable for damages.
Liability of Public Corporations
A Statutory Corporation (or Public Corporation) is an entity created under specific legislative acts, either by Parliament or state legislatures. These corporations have defined management structures, powers, and operational areas as stipulated by the governing Act. Multiple corporations can be established under the same Act, such as State Electricity Boards or State Financial Corporations.
Public corporations operate independently from the government, and their employees are not considered government employees. As a result, the government is not liable for the actions of public corporation employees. However, based on the principle of vicarious liability, the corporation itself is responsible for compensating any wrongs committed by its employees or officers.
Examples of Public Corporation
Life Insurance Corporation, Food Corporation of India (FCI), Oil and Natural Gas Corporation (ONGC), Air India, State Bank of India, Reserve Bank of India, Employees State Insurance Corporation, Central Warehousing Corporation, Damodar Valley Corporation, National Textile Corporation, Industrial Finance Corporation of India (IFCI), Tourism Corporation of India, Minerals and Metals Trading Corporation (MMTC) etc are some of the examples of Public Corporations.
The main features of Statutory Corporations are as follows:
It is incorporated tinder a special Act of Parliament or state legislative Assembly
It is an autonomous body and is free from government control in respect of its internal management. However, it is accountable to the Parliament or the state legislature.
It has a separate legal existence.
It is managed by Board of Directors, which is composed of individuals who are trained and experienced in business management. The members of the board of Directors are nominated by the government.
It is supposed to be self sufficient in financial matters. However, in case of necessity it may take loan and/or seek assistance from the government.
The employees of these enterprises are recruited as per their own requirement by following the terms and conditions of recruitment decided by the Board.
A public corporation, also known as a statutory corporation, is an entity distinct and separate from the Government. It does not function as a department or arm of the Government. As a result, its employees are not considered government employees and do not have the protections afforded by Article 311 of the Constitution. However, it is important to note that a public corporation is classified as a "State" under Article 12 of the Constitution, meaning that fundamental rights can be enforced against it. Public corporations are also included under the term "other authorities" and are thus subject to judicial review through writ petitions, either in the Supreme Court under Article 32 or in the High Courts under Article 226 of the Constitution.
Self-Check Exercise-2
Q.1 What is tortuous liability? A tort is a civil wrong arising out of breach of a civil duty or breach of noncontractual obligation and the only remedy for which is damages
Q.2 Judicial Review is the biggest check over administrative discretion. True/False
5.4 Summary: In Summary, the Unit on Judicial Control provides a comprehensive exploration of the mechanisms through which courts ensure accountability and fairness in administrative actions. By delving into principles such as judicial review, jurisdictional competence, and procedural propriety, students gain a nuanced understanding of how the judiciary upholds the rule of law. This Unit underscores the vital role of judicial control in balancing governmental powers, protecting individual rights, and maintaining the integrity of the legal system. As future leaders in law and governance, postgraduate students are encouraged to critically engage with these concepts to contribute meaningfully to the evolution of administrative justice.
Moreover, the Unit elucidates the dynamic relationship between administrative discretion and judicial oversight, emphasizing the importance of robust legal frameworks in democratic societies. By analyzing landmark cases and theoretical perspectives, students are equipped to navigate complex legal scenarios and advocate for equitable outcomes. This exploration not only enhances their theoretical understanding but also cultivates practical skills essential for effective legal practice. Ultimately, the study of judicial control inspires a commitment to upholding constitutional principles and ensuring accountability in public administration, thereby reinforcing the foundational pillars of justice and governance in contemporary society.
5.5 Glossary
• Discretion - the freedom and power to make decisions by yourself.
• Statutory - decided or controlled by law.
• Ordinance - an order or rule made by a government or somebody in a position of authority
5.6 Answers to self check exercises
Self-Check Exercise-1
Q.1 A judge may have a bias in the subject matter, which means that he himself is a party, or has some direct connection with the litigation. To disqualify on the ground of bias there must be intimate and direct connection between adjudicator and the issues in dispute
Q.2 True
Self-Check Exercise-2
Q.1 A tort is a civil wrong arising out of breach of a civil duty or breach of non-contractual obligation and the only remedy for which is damages.
Q.2 True
5.7 References/Suggested Readings
.7 References/Suggested Readings
• https://www.academia.edu/23092337/Title_PRINCIPLES_OF_NATURAL_JUSTICE_IN_THE_LIGHT_OF _ADMINISTRATIVE_LAW_An_Analytical_and_comprehensive_study_of_Principle_of_natural_justice_es pecially_in_the_field_Of_administrative_law
• https://www.nacenkanpur.gov.in/download3.inc.php?rid=164
• Mohinder Singh Gill vs. Chief Election Commissioner AIR 1978 SC 851
• Province of Bombay vs. Khushaldas Advani AIR 1950 SC 222
• Board of high school vs. Ghanshyam AIR 1962 SC 1110
• High water mark case- Eurasian equipment and company limited vs. State of West Bengal AIR 1975 SC 266
• Ramanand Prasad Singh vs. UOI, AIR 1996 SCC 64
• Muralidhar vs. Kadam Singh AIR 1954 MP
5.8 Terminal questions
Q1 Discuss the various modes of judicial control on administration.
Q2 Bring out the various points to elucidate the abuse of administrative discretion.
Q3 What are the various sources of administrative law.
UNIT-II
UNIT-6
JUDICIAL REVIEW
Structure
6.1Introduction
6.2 Learning Objectives
6.3 Need, History, Importance and Scope of Judicial Review of Judicial Review Self-Check Exercise-1
6.4 Features, functions & grounds of Judicial Review
Self-Check Exercise-2
6.5 Summary
6.6 Glossary
6.7 Answer to self-check exercises
6.8 Terminal questions
6.9 References/Suggested Readings
6.0 Learning Objectives
After studying this lesson, the learner will be able to
- Know the need , history, importance and scope of judicial review
- Acquaint with the features of judicial control
6.1 Introduction
Law plays a crucial role in modern society. In exchange for protection against wrongdoing, individuals relinquish certain rights and enter into a social contract with the government. This idea is outlined in the Social Contract Theory, proposed by Hobbes. Within the framework of the Rule of Law, laws without justice can become arbitrary and subject to misuse. To maintain checks and balances on the power of government institutions, Judicial Review has been established. Judicial Review is a process by which the judiciary declares any law that contradicts the Constitution as invalid. This principle was borrowed from the United States Constitution and took several years to be incorporated into India’s legal framework. The judiciary has been instrumental in this process. Judicial Review can apply to Constitutional Amendments, legislative actions, and laws enacted by the legislature. This paper explores the history, development, characteristics, and types of Judicial Review, along with relevant Indian case laws.
In India, the government is divided into three branches: the Legislature, the Executive, and the Judiciary. The Legislature is responsible for making laws, the Executive enforces them, and the Judiciary ensures that both branches operate within constitutional boundaries. To maintain the proper functioning of these branches, the Indian Constitution provides for the Separation of Powers, as outlined in Article 50.
Unlike the strict separation of powers seen in the United States, India follows a more flexible approach. Judicial Review, derived from the American model, grants the judiciary the authority to invalidate any law that conflicts with the Indian Constitution. Under Article 13(2), any law enacted by Parliament that violates the rights granted in Part 3 of the Constitution is considered void from the outset. The judiciary holds the responsibility for interpreting the Constitution comprehensively, acting as its protector. Judicial Review is explicitly provided for in various constitutional provisions, including Articles 13, 32, 131-136, 143, 226, 145, 246, 251, 254, and 372.
Article 372(1) allows for Judicial Review of pre-constitutional laws that were in effect before the Constitution’s adoption. Article 13(2) further asserts that any post-constitutional law passed by Parliament that violates constitutional rights is void. The Supreme Court and High Courts are tasked with safeguarding the fundamental rights granted by the Constitution. If an individual's fundamental rights are infringed upon, they can approach the courts under Articles 32 or 226. Articles 251 and 254 establish that, in case of conflict between Union and State laws, Union law prevails, and State law is deemed void.
6.2 Need, History, Importance, and Scope of Judicial Review
The concept of judicial review arises from the principle of the separation of powers. This principle, also known as checks and balances, is a constitutional doctrine that ensures the three branches of government—the executive, the legislature, and the judiciary—remain distinct from one another. Each branch has its own set of powers and is generally prohibited from exercising the functions of another branch. Therefore, the judiciary cannot replace or interfere with the roles of the executive or the legislature.
Judicial review has been a vital component of the Indian legal system, as evidenced by landmark cases such as L. Chandra Kumar v. Union of India (1997), Indira Nehru Gandhi v. Shri Raj Narain (1975), Golakhnath v. State of Punjab (1967), and Minerva Mills Ltd. v. Union of India (1980). These cases reflect the judiciary’s role in upholding the Constitution, particularly when legislative actions conflict with constitutional principles.
Judicial review has recently been in the spotlight, notably in the case where the Supreme Court of India permitted a floor test in the Maharashtra Assembly. A key issue raised in this case was whether the court had the authority to review the Governor’s decision. Senior advocate Dr. A.M. Singhvi argued that the court indeed had the authority to use judicial review to assess the Governor's satisfaction in calling for a floor test.
An example of judicial review also emerged from the United States, in the Dobbs v. Jackson Women’s Health case, where the U.S. Supreme Court overturned Roe v. Wade (1973), reshaping abortion laws.
History of Judicial Review
The concept of judicial review can be traced back to the Dr. Bonham Case, where Dr. Bonham was prohibited from practicing medicine in London by the Royal College of Physicians due to lacking a license. The case is notable for violating the principles of natural justice, as there was pecuniary bias— since the fine was to be shared between the King and the College.
However, the concept of judicial review was firmly established in the famous Marbury v. Madison case in 1803. When President John Adams, of the Federalist Party, appointed judges on his last day in office, his successor, Thomas Jefferson of the Anti-Federalist Party, refused to deliver the appointment letters. Marbury, one of the appointees, filed a writ of mandamus with the Supreme Court, which ultimately refused to hear the case, thereby asserting the Court’s power to review legislative actions. This marked the development of judicial review in the United States.
Importance of Judicial Review
Judicial review holds significant value for several reasons:
It prevents the executive from becoming tyrannical.
It protects citizens' fundamental rights.
It is essential for preserving the independence of the judiciary.
It is vital for maintaining the supremacy of the Constitution.
It helps curb the misuse of power by both the legislature and the executive.
It ensures the balance of power between the central and state governments in a federal system.
Scope of Judicial Review
While judicial review is a crucial aspect of the legal system, it is not unlimited. Courts can only question a law under specific circumstances:
If the law violates fundamental rights as guaranteed by the Constitution.
If the law contravenes provisions within the Constitution.
If the law exceeds the power or authority granted to the official(s) who enacted it.
Self-Check Exercise-1
Q.1 Judicial Review averts the tyranny of executives. True/False
Q.2 Judicial Review helps in intercepting the misuse of power by the legislature and the executive.
True/False
6.3 Features, Functions & Grounds of Judicial Review
Article 226 of the Indian Constitution allows individuals to approach the High Court if they believe a fundamental or legal right has been violated. Similarly, Article 32 grants the right to move the Supreme Court for violations of fundamental rights or legal questions. However, the ultimate authority for interpreting the Constitution rests with the Supreme Court, whose decisions are binding across the country.
Judicial Review of Laws from Both the State and Central Governments:
Laws enacted by both the central and state governments are subject to judicial review. This includes all laws, orders, ordinances, by-laws, constitutional amendments, and other notifications, as outlined in Article 13(3) of the Constitution of India.
Judicial Review Is Not Automatically Applied:
Judicial review does not automatically come into effect. It must be invoked when a legal question or rule is challenged in court. The Supreme Court does not initiate judicial review on its own; it can only exercise this power when a relevant case is presented before it.
Judicial Review Is Not Suo Motu:
Neither the Supreme Court nor the High Court exercises judicial review on its own initiative (suo motu). Instead, judicial review is invoked when a legal issue is raised before the courts or when a case arises during proceedings where the legality of a law is questioned.
Principle of Procedure Established by Law:
Judicial review operates under the principle of "Procedure established by law," as enshrined in Article 21 of the Indian Constitution. Laws must pass constitutional scrutiny to be valid. If a law does not meet the constitutional standards, the court has the authority to declare it null and void.
Functions of judicial review
Judicial review has two vital functions, namely:
1. Of making the actions of the government legitimate, and
2. To secure the Constitution from any undue encroachment by the government.
Judicial review can be done by whom?
Judicial review is the principle that allows the judiciary to evaluate and assess the actions of the executive and legislative branches of government. While the Indian Constitution follows the principle of separation of powers, where the executive, legislature, and judiciary function independently, the judiciary has been granted the responsibility of overseeing the actions of the other two branches.
In India, both the High Courts and the Supreme Court hold the authority to conduct judicial review. The High Courts derive their power to review from Article 226 and Article 227 of the Constitution, while the Supreme Court's powers for judicial review are outlined in Articles 32 and 136.
Grounds for Judicial Review
Constitutional Amendments
Judicial review applies to constitutional amendments, specifically when they conflict with Fundamental Rights. Amendments found to violate these rights are deemed unconstitutional and void. The history of judicial review in this area is marked by numerous cases, such as Shankari Prasad v. Union of India, Sajjan Singh v. State of Rajasthan, I.C. Golaknath v. State of Punjab, Kesavananda Bharti v. State of Kerala, and I.R. Coelho v. State of Tamil Nadu, where amendments challenging constitutional validity were reviewed and declared unconstitutional if found in conflict with the Constitution.
Illegality and Lack of Jurisdiction
An administrative action without proper jurisdiction is considered void. For example, if an authority lacks the power to carry out a specific act, any action taken by that authority is deemed nonexistent in the eyes of the law. In R. v. Minister of Transport (1934), a minister's order to revoke a license, though lacking proper authority, was deemed ultra vires (beyond their power). Similarly,
in Rafiq Khan v. State of U.P. (1954), the Allahabad High Court found that the Sub-Divisional Magistrate did not have the jurisdiction to modify a Panchayat Adalat’s conviction order. The court used certiorari to annul the actions.
• Administrative actions can be reviewed on the following grounds:
• The rules under which the authority operates are unconstitutional.
• The authority was not properly constituted according to law.
• The authority made decisions based on jurisdictional facts it did not have.
• Essential conditions for the exercise of jurisdiction were ignored.
• The authority was incompetent to act in relation to the subject matter or the parties involved.
Excess of Jurisdiction
An administrative body must act within its defined powers. If it exceeds its jurisdiction, its actions will be considered ultra vires (beyond its legal authority) and void. In County Council v. Attorney General (1902), a local authority permitted to operate tramways began operating buses, a service outside its authorized scope. The court declared the action ultra vires and void.
Abuse of Jurisdiction
Authorities must exercise their powers in good faith and for their designated purpose. Any misuse of power for improper reasons (mala fide) constitutes abuse of jurisdiction. In Pratap Singh v. State of Punjab (1964), a civil surgeon’s suspension and dismissal, seemingly done to settle personal scores with the Chief Minister, was ruled mala fide. The Supreme Court quashed the dismissal, as the actions were not conducted in good faith.
Abuse of jurisdiction may, inter alia, occur in some of the instances as under
Malfeasance in office/improper purpose
Administrative powers must only be used for their intended purpose. In the case of Attorney-General v. Fulham Corporation, the administration was legally authorized to establish warehouses for noncommercial use by local residents. However, the corporation proceeded to open a commercial laundry, which was deemed an overstep of their legal authority, and the action was ruled to be ultra vires.
A mistake apparent on the face of the record
A mistake is considered apparent when it can be identified directly from the record without the need for additional information. In the case of Syed Yakoob v. K.S. Radhakrishnan (1963), the Supreme Court recognized an obvious legal error in the record when the decision made by a lower tribunal was based on the following issues:
1. A clear misinterpretation of the relevant legal provisions,
2. Ignorance of the correct law,
3. Disregard for the proper legal framework,
4. Conclusions based on incorrect legal reasoning.
Consideration of extraneous material
When exercising authority, the decision-maker must consider all relevant factors and disregard those that are trivial. In the case of R v. Somerset County Council, ex p Fewings (1955), the local authority imposed a ban on stag hunting on council-owned land designated for recreational use. The Court of Appeal acknowledged that, in certain circumstances, it is justifiable to ban activities such as stag hunting. In this instance, factors like animal welfare and social considerations were deemed relevant in making the decision.
Mala fide management of power
When a decision is made with dishonest intentions or an ulterior motive, it can be considered as having been made in bad faith. In the case of R v. Derbyshire County Council, ex p Times Supplements (1991), the local education authorities were tasked with notifying qualified individuals to fill certain job vacancies. The Times newspaper had already published articles that were seen by many potential applicants. However, despite this, the Council chose to stop advertising the vacancies in the paper. This decision was challenged in court, and the Derbyshire County Council was found to have made the decision not on educational grounds, but due to a malicious intent to retaliate, thus acting in bad faith.
Fettering discretion
An authority may act beyond its legal power, or ultra vires, if it exercises a particular power, such as implementing a policy, without giving it proper consideration, effectively failing to use its discretion. This principle was demonstrated in the case of H. Lavender & Sons v. Minister of Housing & Local Government (1970). In this case, the local planning authority denied permission to Lavender to extract additional sand and gravel from high-quality agricultural land. Lavender appealed to the Minister of Housing and Local Government, but the appeal was rejected because the Minister of Housing and Local Government was influenced by the Minister of Agriculture, who argued that the land should be preserved for agricultural use. The court overturned the decision, noting that the Minister of Housing and Local Government had failed to exercise independent judgment and instead relied solely on the views of another minister, thus restricting his discretion.
Failure to exercise jurisdiction
When an administrative authority is granted discretionary power by law, it is expected to be used appropriately. Failure to exercise such discretion can occur under several conditions, including:
1. Unauthorized delegation of authority,
2. Imposing limitations on the exercise of discretion,
3. Acting based on the instructions of a superior,
4. Failure to properly consider relevant factors,
5. A situation where power is linked with a duty but is not exercised accordingly.
Types of Judicial Review
Justice Syed Shah Mohamed Quadri identified three primary categories of judicial review, which are as follows:
1. Review of Legislative Actions
This form of judicial review assesses whether the laws passed by the legislature comply with constitutional provisions. Several important Supreme Court cases have addressed this, including:
• Shankari Prasad Case: In Shankari Prasad vs. Union of India (1951), a challenge was raised regarding the First Amendment of 1951, specifically concerning the restriction of the 'Right to Property'. The Court ruled that fundamental rights under Article 13 could not be restricted by constitutional amendments.
• Sajjan Singh Case: In Sajjan Singh vs. State of Rajasthan (1965), the Court upheld the 17th Amendment of 1964, rejecting the position in Shankari Prasad and ruling that constitutional amendments under Article 368 are not subject to judicial review.
• Golaknath Case: In I.C. Golaknath vs. State of Punjab (1967), challenges were made against three constitutional amendments. The Court ruled that Parliament could not amend the Constitution or limit fundamental rights under Article 368.
• Kesavananda Bharati Case: In Kesavananda Bharati vs. State of Kerala (1973), the Court concluded that Parliament cannot alter the basic structure of the Constitution, while acknowledging that changes to the Constitution can be made under Article 368.
• Indira Gandhi Case: In Indira Gandhi vs. Shri Raj Narain (1975), the Supreme Court found Prime Minister Indira Gandhi guilty of electoral malpractice.
• Minerva Mills Case: In Minerva Mills Ltd. vs. Union of India (1980), the Court struck down clauses (4) and (5) of Article 368 inserted by the 42nd Amendment (1976), stating that these clauses violated the basic structure of the Constitution.
2. Review of Administrative Actions
Judicial review in this category ensures that administrative actions comply with constitutional principles. The actions of both Union and State governments, along with their officials, fall under the purview of this review.
3. Review of Judicial Decisions
This type of review is used to correct or revise earlier judicial decisions. Notable instances include:
• Golaknath and Minerva Mills Cases: Both cases are significant in shaping judicial review related to constitutional amendments and fundamental rights.
• Bank Nationalisation Case: In Rustom Cavasjee Cooper vs. Union of India (1970), the Court affirmed that individuals whose property was acquired by force are entitled to compensation. This case is famously known as the Bank Nationalisation case.
Self-Check Exercise-2
Q.1 Article 368 of the Constitution provides the President with the power to bring about changes in the
Constitution. True/False
Q.2 The core structure of the Constitution can be toppled with or amended by the Parliament. True/False
6.4 Summary
In India, the principle of the separation of powers is central, which means that judicial review cannot be exercised in an absolute or unchecked manner. If courts were to wield unlimited and arbitrary power of judicial review, it could lead to inefficiency and disruption in the functioning of all branches of government. To ensure that each branch performs its duties effectively, it is essential that each operates within its designated sphere. Judicial review, as a concept, is an integral part of the Indian Constitution, designed to maintain a system of checks and balances among the government’s three branches.
The role of judicial review in India is significant. It serves as a mechanism to uphold the Constitution and protect fundamental rights guaranteed to citizens. Additionally, it ensures that power is appropriately distributed between the central and state governments, clearly outlining the responsibilities of each branch. The concept of judicial review was further solidified as part of the basic structure doctrine, particularly in the Minerva Mills v. Union of India case. Overall, judicial review in India has evolved as a vital safeguard to protect individual rights, curb arbitrary authority, and prevent injustice.
6.5 Glossary
• Writ - a legal order to do or not to do something, given by a court of law.
• Verdict - the decision that is made by a specially chosen group of people (the jury) in a court of law, which states if a person is guilty of a crime or not.
• Suo-moto - relating to an action taken by a court of its own accord, without any request by the parties involved.
6.6 Answers to self-check exercises
Self-Check Exercise-1
Q.1 True
Q.2 True
Self-Check Exercise-2
Q.1 True
Q.2 False
6.7 References/Suggested Readings
6.8 Terminal questions
Q1 What are the various cases in which judicial review can be illegal? Discuss.
Q2 Bring out the various limitations of Judicial Review.
Q3 What are the various provisions of judicial review in Indian Constitution?
UNIT-7
Principles of Judicial Review
Structure
7.0 Introduction
7.1 Learning Objectives
7.2 Principles & Constitutional provisions of Judicial Review Self-Check Exercise-1
7.3 Procedure & limitations of Judicial Review in India Self-Check Exercise-2
7.4 Summary
7.5 Glossary
7.6 Answer to self-check exercises
7.7 References/Suggested Readings
7.8 Terminal questions
7.0 Introduction: In India, the government is divided into three branches: the Legislature, the Executive, and the Judiciary. The Legislature is responsible for creating laws, the Executive implements them, and the Judiciary oversees both the Legislature and Executive to ensure that the laws are in line with the Constitution. To maintain the proper functioning of these branches within their defined roles, the Constitution of India incorporates the principle of Separation of Powers, as outlined in Article 50.
However, this principle is not as rigidly followed in India as it is in the United States, from which it has been derived. Judicial Review, a concept taken from the U.S. Constitution, grants the Judiciary the authority to annul any law passed by Parliament if it is found to be in violation of the Constitution. According to Article 13(2) of the Indian Constitution, any law that infringes upon the rights guaranteed under Part 3 of the Constitution is considered void from the outset. The Judiciary holds the power to interpret the Constitution fully and acts as its guardian. Judicial Review is further supported by several provisions of the Constitution, including Articles 13, 32, 131-136, 143, 226, 145, 246, 251, 254, and 372.
7.1 Learning Objectives: After studying this lesson, the learner will be able to
- Know the principles and procedure of judicial review
- Acquaint with constitutional provisions and limitations of judicial review
7.2 Principles & Constitutional provisions of Judicial Review
Comity Principle
The principle of comity suggests that different branches of government should work together and respect each other's roles to ensure that all authorities can effectively carry out their duties in accordance with the Constitution's values and rules.
Principle of Subsidiarity
This principle asserts that public functions and powers should be exercised at the most appropriate level, where they can be managed most effectively and responsibly. For example, political issues are best addressed by political authorities, policy decisions by the legislature, and judicial matters by the judiciary.
Principle of Contextuality
According to the principle of contextuality, laws should consider the context in which they are applied. This ensures that the law fulfills its purpose as a tool for societal development and social engineering.
Principle of Proportionality
Under the principle of proportionality, courts use judicial review to assess whether restrictions on rights are balanced against the legitimate objectives they seek to achieve. This principle involves three key aspects:
1. Assessing the Means
The courts examine the methods used by administrative bodies to ensure that the means are within their legal authority, not overly burdensome, and reasonably aligned with the intended goal.
2. Assessing the End
Next, the courts evaluate whether the objectives pursued by the administrative authority are legitimate and within their capacity to accomplish.
3. Balancing the Means and Ends
Finally, the courts check whether there is a reasonable balance between the methods used and the goals sought, ensuring that no excessive harm is caused in pursuit of the objective.
Constitutional provisions for judicial review
| Articles | Provisions |
|---|---|
| | Declares that laws that are unstable with or in derogation of Fundamental |
| Article 13 | Rights shall be null and void. Ensures the right to move the Supreme Court for the enforcement of |
| Article 32 | fundamental rights and entrusts the Apex Court with the power to issue directions or orders, or writs. |
| Article 131 | Provides for the original jurisdiction of the Apex Court in conflicts related to |
centre-state and inter-state.
| Article 132 | Provides for the appellate jurisdiction of the Supreme Court in constitutional cases. |
|---|---|
| Article 133 | Provides for the appellate jurisdiction of the Supreme Court in civil cases. |
| Article 134 | Provides for the appellate jurisdiction of the Supreme Court in criminal cases. |
| Article 134-A | Deals with the certificate for an appeal to the Supreme Court from the high courts. |
| Article 135 | Authorises the Apex Court to exercise the jurisdiction and powers of the |
federal court under any pre-constitution law.
| Article 136 | Empowers the Apex Court to bestow special leave to appeal from any court or tribunal (except military tribunals and court-martial). |
|---|---|
| Article 143 | Provides an authority to the President to seek the opinion of the Apex Court |
on any question of law or fact and on any pre-constitutional legal matters.
| Article 226 | Certifies the high courts with the power of judicial review and to issue directions or orders or writs for the enforcement of fundamental rights or other objectives. |
|---|---|
| Article 227 | Entrusts the high courts with the authority of superintendence over all courts within their respective territorial jurisdiction (except military courts and tribunals). |
| Article 245 | Deals with the territorial extent set by Parliament and the Legislature of the states. |
| Article 246 | Discusses the subject matter upon which laws can be made by Parliament and by the Legislatures of States (i.e., the Union List, State List, and |
Concurrent List).
Article Deduces the hegemony of the central laws in situations where there is a
251 and Article dispute between the central and state laws. Thus, the central law shall 254 prevail over the state law, and the state law will be considered void.
Article 372 Deals with the continuance in force of the pre-constitutional laws.
Self-Check Exercise-1
Q.1 Article 131 Provides for the original jurisdiction of the Apex Court in conflicts related to centrestate and inter-state. True/False
Q.2 Article 372 deals with the continuance in force of the pre-constitutional laws. True/False
Q.3 Article 245 provides an authority to the President to seek the opinion of the Apex Court on any question of law or fact and on any pre-constitutional legal matters.True/False
7.4 Procedure & limitations of Judicial Review in India
Procedure for judicial review in India
Judicial review in India refers to the power of courts to examine the actions of the legislative, executive, and administrative bodies to ensure that they comply with the Constitution of India. This procedure follows certain steps and principles to assess the validity of laws, executive actions, and decisions made by authorities.
1. Filing of Petition
Judicial review can be initiated by filing a petition in the appropriate court. The aggrieved party, who believes that a law or administrative action is unconstitutional, may approach the High Court or the Supreme Court, depending on the matter. The most common remedies for judicial review in India are:
o Writ petitions under Article 32 (in the Supreme Court) and Article 226 (in the High Courts).
o Public Interest Litigations (PILs) are also a common form of petition in judicial review, where individuals or groups can approach the courts to address issues affecting the public at large.
2. Jurisdiction of Courts
o Supreme Court: The Supreme Court, under Article 32, has the authority to review laws or executive actions that violate the Constitution, especially when fundamental rights are at stake.
o High Courts: High Courts have jurisdiction under Article 226 to review administrative actions or laws within their territorial jurisdiction. They may issue writs to enforce rights, quash unconstitutional laws, or direct government bodies to take action.
3. Grounds for Judicial Review
The grounds for judicial review in India include:
o Violation of the Constitution: A law or action that contravenes the provisions of the Constitution is subject to judicial review.
o Fundamental Rights: Any action that infringes upon the fundamental rights of individuals, as guaranteed by Part III of the Constitution, is subject to scrutiny.
o Excess or Abuse of Power: Any law or executive action taken without proper authority or in violation of delegated powers can be struck down.
o Arbitrary or Discriminatory Action: Laws or decisions that are arbitrary, unreasonable, or discriminatory may be challenged on the grounds of fairness and justice.
4. Examination of Legislative Actions
o Judicial review of legislative actions focuses on determining whether a law is constitutional. This includes reviewing whether the law falls within the legislative competence of the concerned legislature, as defined by the Constitution.
o The Court assesses whether the law violates any fundamental rights or the basic structure of the Constitution.
5. Examination of Administrative Actions
The courts examine whether administrative bodies or officials have exceeded their jurisdiction, acted beyond their powers, or made decisions that are unreasonable, arbitrary, or illegal.
o Writs such as mandamus (to compel a duty), prohibition (to prevent an action), certiorari (to quash an unlawful decision), and quashing orders are frequently used in these cases.
6. Scope of Review
Judicial review in India is generally based on constitutional supremacy, where courts ensure that the actions of the legislature, executive, and administrative authorities do not violate the Constitution. The review is not concerned with the merits of the law or action but focuses on its constitutionality and whether it adheres to the constitutional framework.
7. Judicial Precedents
In the process of judicial review, courts rely heavily on precedents and past decisions. For instance, landmark cases like Kesavananda Bharati (1973), which established the "Basic Structure Doctrine," or Minerva Mills (1980), have helped define the scope and limits of judicial review.
8. Role of the Court
The role of the court in judicial review is not to make laws but to ensure that the laws and actions taken by other organs of the state are constitutional. Courts may:
o Strike down laws or executive actions that violate the Constitution.
o Interpret provisions of the Constitution and ensure they are followed.
o Protect fundamental rights and enforce the rule of law.
9. Remedies Available
o If a law, order, or action is found to be unconstitutional, the court may issue directions to strike it down, declare it void, or direct the authorities to take corrective actions.
o The court may also award compensation or issue an injunction depending on the circumstances of the case.
Limitations of judicial review
o There are several limitations that govern the exercise of judicial review by both the High Courts and the Supreme Court of India. When the judiciary exceeds its role and involves itself in matters typically within the domain of the executive, it is referred to as judicial
activism. If this exceeds acceptable boundaries, it may lead to judicial overreach. Below are some of the key limitations on judicial review:
o General Limitations
o Limits on Government Functioning
Judicial review has a restricted scope in terms of both its availability and function. The judiciary's role is confined to reviewing the process by which a decision was made, assessing whether the procedures followed were correct. It does not reassess the merits of the decision or make a fresh judgment. The judiciary evaluates whether the proper procedures were followed rather than providing a ruling on the substance of the decision.
o Violation of Constitutional Limits
If the judiciary goes beyond the powers defined in the Constitution and overrides established laws, it can violate constitutional limits. In such cases, the exercise of legislative powers as outlined by the Constitution may be deemed incorrect.
o Separation of Powers
While the principle of separation of functions is observed, the strict separation of powers is not always maintained. The judiciary has the authority to review and annul laws passed by the legislature that are found unconstitutional. However, this system of checks and balances does not fully adhere to a strict separation of powers.
o Creation of Precedents
Judicial decisions often serve as precedents for future cases, meaning that the rulings made by judges influence the decisions in subsequent cases. This practice ensures consistency but also means that judicial opinions shape future legal interpretations.
o Influence of Personal Bias
Judicial review can sometimes be impacted by personal or selfish motives of the judges involved, leading to decisions that may not be in the best interest of the public. This can have adverse consequences on society as a whole.
o Negative Impact of Frequent Court Interference
Continuous intervention by the judiciary may erode public confidence in the government’s functioning, affecting the trust people have in the integrity, quality, and efficiency of government operations.
o Limitations on Overruling Administrative Decisions
The judiciary does not possess the power to directly overrule decisions made by administrative bodies. In cases where administrative decisions are reviewed, the court’s judgment may substitute the administrative ruling, which could be considered a shortcoming due to the court’s lack of specialized knowledge in certain areas.
o Judicial Activism vs. Judicial Restraint
There is ongoing debate regarding whether a balance should be maintained between judicial activism, where judges take a more proactive role in shaping the law, and judicial self-restraint, where judges limit their intervention to necessary constitutional matters only.
o Doctrine of Strict Necessity
The Doctrine of Strict Necessity holds that the court should only rule on constitutional issues if it is absolutely necessary. This ensures that constitutional questions are addressed only to the extent required, avoiding unnecessary overreach.
o These limitations underscore the importance of the judiciary adhering to its defined role and avoiding excessive interference in matters that are best left to the other branches of government.
Current scenario of judicial review in India
Recently, the Supreme Court of India rejected the idea that the Central Vista project required an exceptional level of judicial review. The Court clarified that the government has the discretion to design policies and make mistakes in the process, provided that constitutional principles are followed.
With the removal of the locus standi rule, the judiciary has been empowered to intervene in matters affecting the public interest, even when no individual party has brought forward a complaint, through mechanisms like suo moto cases and Public Interest Litigations (PILs).
Way Forward
Judges in India hold significant judicial authority, with one of their most important powers being judicial review. This makes it essential for the judiciary to prevent the abuse and misuse of its power, as well as to stop any exploitation or unjust actions.
Additionally, there must be careful consideration when it comes to judicial activism and the appropriate use of Public Interest Litigations (PILs). These mechanisms should not be hijacked for political agendas. It is important for the judiciary to examine the reasoning behind the filing of a PIL or writ petition, especially when a constitutional remedy is being sought. For example, challenges to the Citizenship Amendment Act (CAA) or the revocation of Article 370 were seen by some as politically motivated. Hence, such cases should be thoroughly examined to determine if they have an ulterior motive or if they truly serve the public interest.
Furthermore, there are instances where NGOs, often linked to political parties or foreign entities, may have agendas that undermine the nation's sovereignty. Therefore, it is critical for the courts to carefully assess the motivations of parties involved in seeking judicial remedies.
Another significant constitutional issue arose when the Supreme Court took away the President's power to appoint the Chief Justice of India (CJI). Such actions must be subjected to thorough judicial scrutiny.
• With the power of judicial review, courts serve as guardians of fundamental rights.
• As the role of the modern state grows, the judiciary's involvement in overseeing administrative decisions and actions has also expanded.
• When judicial activism oversteps its boundaries, it risks infringing upon the principle of separation of powers outlined in the Constitution.
• The legislature is responsible for making laws, while the executive's duty is to implement them. The judiciary’s primary function should be interpretation. A delicate balance between these organs of government is crucial to uphold constitutional values.
Self-Check Exercise-2
Q.1 With the power of judicial review, the courts act as a custodian of the fundamental rights.
True/False
Q.2 Article 246 (3) ensures the state legislature’s exclusive powers on matters pertaining to the State List. True/False
Q.3 Article 245 states that the powers of both Parliament and State legislatures are subject to the provisions of the constitution.True/False
7.5 Summary
In India, the principle of the separation of powers has been adopted, which means that judicial review cannot be assumed to have unlimited authority. If the courts were to exercise judicial review in an unchecked and arbitrary manner, it could undermine the functioning of all branches of government. To ensure proper functioning, each branch must operate within its defined limits. Judicial review is an integral part of the Indian Constitution's basic structure, and its role is to maintain a system of checks and balances between the legislative, executive, and judicial branches, ensuring that no organ misuses its power and that actions comply with constitutional norms.
Judicial review serves as a vital safeguard, protecting the Constitution and upholding the fundamental rights enshrined within it. It plays a crucial role in dividing power between the union and the states while clearly defining the roles and responsibilities of each branch of government. This concept of judicial review was solidified in the landmark case of Minerva Mills v. Union of India, where the court reaffirmed its essential role in maintaining the integrity of the Constitution. Ultimately, judicial review serves to protect individual rights, prevent the misuse of power, and avoid the miscarriage of justice.
7.6 Glossary
• Writ - a legal order to do or not to do something, given by a court of law.
• Verdict - the decision that is made by a specially chosen group of people (the jury) in a court of law, which states if a person is guilty of a crime or not.
• Suo-moto - relating to an action taken by a court of its own accord, without any request by the parties involved.
7.7 Answers to self check exercisesSelf-Check Exercise-1
Q.1 True
Q.2 True
Q.3 True
Self-Check Exercise-2
Q.1 True
Q.2 True
Q.3 True
7.8 References/Suggested Readings
7.9 Terminal questions
Q1 What are the various cases in which judicial review can be illegal? Discuss.
Q2 Bring out the various limitations of Judicial Review.
Q3 What are the various provisions of judicial review in Indian Constitution?
UNIT-8
CONSTITUTION AND INDEPENDENCE OF JUDICIARY
Structure
8.0 Introduction
8.1 Learning Objectives
8.2 Structure of Judiciary Self-Check Exercise-1
8.3 Functions of Judiciary Self-Check Exercise-2
8.4 Summary
8.5 Glossary
8.6 Answer to self-check exercises
8.7 References/Suggested Readings
8.8 Terminal questions
8.0 Introduction: The three branches of government in India are the judiciary, legislature, and executive. The judiciary is independent, meaning that it operates separately from the other branches, which are prohibited from interfering with its functions. The judiciary is responsible for interpreting the law, resolving disputes, and ensuring justice is served to all citizens. It is often referred to as the protector of democracy and the guardian of the Constitution. To ensure the smooth functioning of democracy, it is crucial that the judiciary remains impartial and independent.
8.1 Learning Objectives
After studying this lesson, the learner will be able to
- Know the structure and functions of Judiciary
- Analyze the Independence of Judiciary
- Know the International provisions on Judiciary
- Know the provisions to ensure the Independence of judiciary and affecting factors
8.2 Structure of Judiciary:
India operates under a unified judicial system with a hierarchical structure. At the apex is the Supreme Court (SC), followed by the High Courts, and then the district and subordinate courts at the base. The lower courts are directly overseen by the higher courts to ensure consistency and proper functioning.
The following diagram illustrates the organization and structure of the judicial system in India.
Apart from the above structure, there are also two branches of the legal system, which are:
1. Criminal Law: These deal with the committing of a crime by any citizen/entity. A criminal case starts when the local police files a crime report. The court finally decides on the matter.
2. Civil Law: These deal with disputes over the violation of the Fundamental Rights of a citizen.
The SC has three types of jurisdictions. They are original, appellate and advisory. The jurisdiction of the Supreme Court are mentioned in Articles 131, 133, 136 and 143 of the Constitution.
Self-Check Exercise-1
Q.1 Civil Law deal with disputes over the violation of the Fundamental Rights of a citizen.
True/False
Q.2 India has a single integrated judicial system. True/False
8.3 Functions of Judiciary
The judiciary in India performs various important functions:
1. Administration of Justice: The primary role of the judiciary is to apply laws in specific cases and resolve disputes. When a case is brought before the court, it assesses the facts presented through evidence. Based on this, the court applies the relevant laws and imposes penalties when someone is found guilty of breaching the law.
2. Development of Case Law: Sometimes, judges may face difficulties in applying existing laws to particular cases. In such instances, they use their judgment and experience to establish appropriate legal principles, thereby creating case law. Under the doctrine of 'stare decisis,' past judicial decisions generally serve as precedents for future cases.
3. Guardian of the Constitution: The Supreme Court of India safeguards the Constitution by resolving disputes regarding jurisdiction between the central and state governments or between the legislature and executive. It has the authority to declare laws or executive actions unconstitutional if they violate constitutional provisions, a process known as judicial review. This ensures the protection of fundamental rights and maintains the federal balance.
4. Protector of Fundamental Rights: The judiciary plays a key role in protecting the fundamental rights of citizens by ensuring that these rights are not infringed upon by the state or other authorities. It enforces these rights by issuing writs when necessary.
5. Supervisory Role: Higher courts oversee the functioning of subordinate courts, ensuring that judicial processes are carried out properly.
6. Advisory Role: The Supreme Court can offer advisory opinions on constitutional matters, particularly when there is no dispute, and the executive requests such an opinion.
7. Administrative Functions: The judiciary also performs administrative duties, including granting licenses, managing the estates of deceased individuals, and appointing guardians for minors and individuals deemed mentally incapable. Additionally, courts oversee the registration of marriages and other similar matters.
8. Special Role in a Federation: In India’s federal system, the judiciary resolves disputes between the central and state governments and also arbitrates conflicts between states.
9. Conducting Judicial Inquiries: Judges are often called upon to lead inquiries into errors or omissions committed by public officials, providing oversight and ensuring accountability.
Civil Courts
Civil courts handle disputes that involve non-criminal matters, typically related to individuals or entities seeking resolution over personal, property, or financial issues. These are known as civil cases, distinct from criminal cases that deal with violations of criminal law like theft, murder, or arson.
• Civil law is applied in situations where one party sues another. Common civil cases include issues like divorce, eviction, consumer rights, debt disputes, and bankruptcy.
• Judges in civil courts and criminal courts have different roles. In criminal courts, a judge can impose a sentence, such as jail time, on a convicted individual. In contrast, a judge in a civil court can order the guilty party to pay fines or other forms of compensation.
• At the lower end of India's judicial hierarchy, we find District Judges in District Courts, along with Second Class Magistrates and Civil Judges (Junior Division). These positions are responsible for handling less complex cases.
• The court of the district judges is the highest civil court in a district.
• It has both administrative and judicial powers.
• The court of the District Judge is in the district HQ.
• It can try criminal and civil cases and hence, the judge is called District and Sessions Judge.
• Under the district courts, there are courts of the Sub-Judge, Additional Sub-Judge and Munsif Courts.
• Most civil cases are filed in the Munsif’s court.
Civil courts in India operate under four types of jurisdiction:
1. Subject Matter Jurisdiction: This refers to the court's authority to hear cases related to specific topics or legal matters. A court can only try cases that fall within its defined subject scope.
2. Territorial Jurisdiction: A court has the power to hear cases that arise within its designated geographical area or territory. It cannot hear cases outside of its territorial boundaries.
3. Pecuniary Jurisdiction: This relates to the court's authority over cases involving monetary claims or disputes with a specific value. It determines the types of cases based on the financial amount involved.
4. Appellate Jurisdiction: Courts with appellate jurisdiction have the authority to hear appeals. They review decisions made by lower courts. The Supreme Court and High Courts in India are examples of courts that hold appellate jurisdiction.
Self-Check Exercise-2
Q.1 Pecuniary Jurisdiction cases related to money matters, suits of monetary value. True/False
Q.2 Territorial Jurisdiction can try cases even outside its geographical limit. True/False
8.4 Summary
The independence of the judiciary occupies a significant role in the structure of the judiciary. Historically, judicial independence has faced numerous challenges, particularly regarding the appointment and transfer of judges. Courts have consistently upheld judicial independence, recognizing it as a fundamental aspect of the Constitution. This independence is essential for the effective functioning of the Constitution and for realizing a democratic society governed by the rule of law.
As noted in the Judges' Cases, the decision to prioritize executive control over judicial appointments has led to the appointment of some judges against the opinion of the Chief Justice of India. Such a decision was likely not the intention of the Constitution's framers, who aimed to maintain the judiciary's autonomy from the executive branch. The decisions in the Second and Third Judges' Cases, however, marked a positive step toward protecting this independence.
Lord Acton’s quote, “Power tends to corrupt, and absolute power corrupts absolutely,” highlights the importance of maintaining a balance between judicial independence and accountability. To address this,
the Law Commission has proposed a whistleblower provision in a draft bill concerning the removal of Supreme Court and High Court judges. This is a significant development, as it aims to reform the cumbersome process for removing judges while ensuring judicial accountability.
An essential component of judicial independence is the permanence of judicial appointments until retirement. Protection against involuntary transfers, along with adequate remuneration, are critical elements that ensure judges can serve without fear of external influence or pressure.
Additionally, it is vital to find a balance between judges’ accountability and their independence in decision-making. Disciplinary actions should not interfere with the content of their rulings or judicial errors. Moreover, the process for initiating judicial discipline should be separate from the adjudicating body, ensuring transparency and fairness in hearings.
A judge should make decisions based solely on the law and facts, without external influence or instruction. A hierarchical structure that places judges under the authority of higher court officials would undermine this principle. To safeguard independence, legal measures should be in place to prevent any attempts to influence judges.
In conclusion, the importance of judicial independence was recognized early by the framers of the Constitution and has been upheld by the courts as a fundamental feature. However, judicial independence must evolve with societal changes. Judicial accountability and independence must work together to fulfill the intended purpose of the judiciary.
8.5 Glossary
• Contempt of Court- Contempt of court, often referred to simply as "contempt", is the crime of being disobedient to or disrespectful toward a court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the court.
• Criminal Law - a system of law concerned with the punishment of offenders.
• Civil Law - the system of law concerned with private relations between members of a community rather than criminal, military, or religious affairs.
8.6 Answers to self check exercises
a. see 6.2 b. see 6.3 c. see 6.4
8.7 Terminal questions
Q1 Discuss the various provisions to ensure independence of judiciary in India.
Q2 What is the need to ensure independence of Judiciary?
Q3 What are the various factors to affect independence of judiciary?
8.8 References/Suggested Readings
• V.N. Shukla’s Constitution of India (10th Edn 2001), revised by M. P. Singh.
• M.P. Jain, Indian Constitutional Law.(6th Edn 2013)
• Prof. Kailash Rai, Constitutional Law of India.(4th Edn 2013)
• Independence of Judiciary in India: A Critical Analysis available on http://mulnivasiorganiser.bamcef.org/?p=482 accessed on 28/07/2014.
• Independence of Judiciary in Indian Constitution, available on
• accessed on 28/07/2014.
Unit-9
Independence of Judiciary
Structure
8.0 Introduction
8.9 Learning Objectives
9.2 Need, international provisions and independence of judiciary in India
Self-Check Exercise-1
8.10 Factors affecting independence of judiciary in India Self-Check Exercise-2
8.11 Summary
8.12 Glossary
8.13 Answer to self-check exercises
8.14 References/Suggested Readings
8.15 Terminal questions
Introduction: The importance of judicial independence is a crucial aspect of any democratic system, including India. This independence is achieved by preventing interference from government branches such as the legislature and the executive. In a democracy, only an impartial and independent judiciary can safeguard individual rights and deliver justice fairly, without any bias or external influence. For this reason, it is vital that all levels of the judiciary, including the Supreme Court, High Courts, and lower courts, function without undue pressure. In India, the judiciary plays the role of protecting citizens' rights, and ensuring its independence is essential for maintaining democracy.
The framers of the Indian Constitution were acutely aware of the need for an independent judiciary when drafting the Constitution. Dr. B.R. Ambedkar responded to the concerns of the Constituent Assembly by stating:
“There can be no difference of opinion in the House that our judiciary must be both independent of the executive and must also be competent in it. And the question is how these two objects can be secured.”
This statement reflects the framers' understanding that to secure a stable and prosperous society, fundamental rights must be guaranteed, and an independent judiciary is essential for safeguarding and enforcing these rights. In a diverse and complex country like India, the judiciary must be independent to uphold democratic principles and maintain a free society.
The independence of the judiciary is widely recognized as vital for ensuring a just society under the rule of law. The rule of law, which is central to good governance, can only be achieved through an unbiased judiciary. The principle of separation of powers, which delineates the roles of the
legislature, executive, and judiciary, assigns the judiciary the responsibility of ensuring that the other branches remain within constitutional limits and do not interfere with each other’s functions. This supervisory role can only be effectively carried out if the judiciary remains independent. Therefore, an independent judiciary is essential to upholding the separation of powers and maintaining the structure of governance.
While the Constitution of India provides provisions to ensure judicial independence, these provisions only serve as the starting point. The real challenge lies in creating an environment where the judiciary can function effectively and independently, with cooperation from other state organs. The judiciary’s independence must be protected against evolving political, economic, and social changes.
Discussions on judicial independence also often bring up the need for certain restrictions on both the judiciary as an institution and individual judges. Striking the right balance between ensuring judicial independence and imposing necessary constraints is essential for the effective functioning of the judicial system.
Meaning – The Independence of the Judiciary
The concept of judicial independence remains somewhat unclear despite its long-standing presence. While the Indian Constitution emphasizes the importance of judicial independence through various provisions, it does not explicitly define what constitutes the independence of the judiciary.
Discussions on judicial independence primarily stem from the doctrine of separation of powers, which has been a longstanding principle. This doctrine asserts that the judiciary should remain independent from both the executive and the legislature.
An alternative perspective on judicial independence can be found through the work of scholars who have analyzed the issue in-depth. Many scholars focus on the "constituent mechanism," or the components that make up the judiciary, to explain judicial independence. These scholars argue that judicial independence primarily involves the freedom of judges to perform their duties impartially, without external influence. Therefore, judicial independence is not only about the institution itself but also about the autonomy of the individual judges who serve within it.
Shetreet, in his research, provides a detailed explanation of the terms "independence" and "judiciary." He defines the judiciary as "the organ of the government not forming a part of the executive or legislative, which is not subject to personal, substantive, and collective control, and which performs the primary function of adjudication."
The key takeaway from Shetreet’s analysis is that both the independence of the judiciary as an institution and the independence of individual judges are interconnected. The judiciary as an institution cannot be independent if its individual judges are not free to carry out their functions without interference. Conversely, the independence of individual judges is meaningless if the institution as a whole lacks autonomy.
9.2 Need, international provisions and independence of judiciary in India
The necessity for judicial independence is based on several key factors:
1. Oversight of Government Actions: The judiciary serves as a safeguard by ensuring that all branches of the government operate within their defined roles and in accordance with the constitutional framework. It acts as a protector of the Constitution and supports the separation of powers.
2. Constitutional Interpretation: The framers of the Constitution foresaw that ambiguities could arise in its interpretation over time. They emphasized the need for an independent and competent judiciary capable of addressing such issues impartially. Without judicial independence, there is a risk that the executive or legislative branches may exert pressure on the judiciary to interpret the Constitution in their favor. It is the judiciary's responsibility to interpret constitutional provisions based on their intended principles and values, free from external influence.
3. Resolving Disputes Impartially: The judiciary must ensure that justice is administered fairly, without favoritism or bias. This means that judges must consider all aspects of a case and deliver decisions based on the law, not on personal biases or external pressures. The judiciary must always strive to uphold impartiality in its decision-making.
International Standards for Judicial Independence
The independence of the judiciary is a universally recognized principle, as highlighted in various international documents. Some key provisions include:
• United Nations Guidelines: The Basic Principles on the Independence of the Judiciary were adopted at the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held in Milan in 1985, and were later endorsed by the General Assembly in resolutions 40/32 (November 1985) and 40/146 (December 1985).
• Human Rights Instruments: International human rights documents, such as the Universal Declaration of Human Rights (Article 10) and the International Covenant on Civil and Political Rights (Article 14), emphasize judicial independence. Additionally, the Basic Principles on the Independence of the Judiciary and the Bangalore Principles of Judicial Conduct (2002) provide more specific guidelines on maintaining an independent judiciary.
• European Convention on Human Rights: Article 6 of the European Convention on Human Rights guarantees the right to an independent and impartial tribunal. Further, the Council of Europe Recommendation on Judges: Independence, Efficiency, and Responsibilities (2010) offers additional standards for judicial independence within the European context.
• OSCE Commitments: The OSCE Copenhagen Document (1990), Moscow Document (1991), and Istanbul Document (1999) outline commitments made by participating states to uphold judicial independence. The Kyiv Recommendations on Judicial Independence (2010) provide detailed guidance for Eastern Europe, the South Caucasus, and Central Asia.
The United Nations, through its various documents and declarations, has established key principles aimed at safeguarding judicial independence:
1. Constitutional Guarantee: Judicial independence must be guaranteed by the state and reflected in the constitution or national law. Governments and institutions must respect and uphold this independence.
2. Impartial Decision-Making: Judges must decide cases impartially, based on facts and law, free from any improper influence, threats, or interference.
3. Exclusive Jurisdiction: The judiciary holds the exclusive authority to determine its jurisdiction and to decide on matters within its legal competence.
4. Protection from Interference: Judicial decisions should not be subject to inappropriate interference or revision, except as allowed by law or through judicial review.
5. Right to Fair Trial: Every individual has the right to be tried by established courts that follow proper legal procedures. Tribunals that bypass these procedures should not be created.
6. Fair Proceedings: The judiciary must ensure that all legal proceedings are conducted fairly, with respect for the rights of all parties involved.
7. Adequate Resources: Member states must provide the necessary resources for the judiciary to effectively carry out its functions.
These provisions, reflected in international law, are fundamental in preserving the independence of the judiciary on a global scale.
The Independence of the Judiciary in India
The framework for ensuring judicial independence in India is embedded in various constitutional provisions. These principles are designed to safeguard the judiciary from undue influence and interference, maintaining its impartiality and autonomy. The following constitutional provisions serve as mechanisms to uphold judicial independence:
Separation of the Judiciary from the Executive: Article 50, part of the Directive Principles of State Policy, directs the state to separate the judiciary from the executive in public services. This separation aims to ensure judicial independence by preventing any undue control or influence from the executive branch.
Appointment of Judges: Article 124(2) of the Indian Constitution specifies that the appointment of judges is a consultative process and not an exclusive executive power. The President, while making appointments to the Supreme Court and High Courts, must consult the Chief Justice of India (CJI). For appointing the CJI, the President consults with the judges of the Supreme Court and High Courts as deemed necessary. Likewise, appointments to the High Courts require the consultation of the CJI, the Governor of the respective state, and other relevant judicial authorities. This ensures that the executive does not have absolute discretion in judicial appointments, thereby maintaining the judiciary's independence.
Security of Tenure: Judges of both the Supreme Court and High Courts enjoy security of tenure. They remain in office until they reach the age of retirement—65 years for Supreme Court judges and 62 years for High Court judges. Removal of a judge can only occur through a formal procedure involving the President, and only for proven misbehavior or incapacity. The procedure requires the approval of both Houses of Parliament by a two-thirds majority of members present and voting, making it extremely difficult to remove a judge.
Salaries and Allowances: Judges' salaries and allowances are constitutionally protected and are not subject to the legislative process. These are drawn from the Consolidated Fund of India for Supreme Court judges and from the state’s Consolidated Fund for High Court judges. Their compensation cannot be altered to their disadvantage, except during a financial emergency, as outlined in Article 125(2).
Powers and Jurisdiction of the Supreme Court: Parliament can only expand, not reduce, the powers and jurisdiction of the Supreme Court. While Parliament has the authority to modify the pecuniary limits on appeals or enhance appellate jurisdiction, it cannot curtail the Court’s authority. Furthermore, the Supreme Court can be granted additional powers to function more effectively, such as issuing writs or directives for various purposes.
Prohibition of Discussions on Judges' Conduct in Legislatures: Articles 121 and 211 prohibit any discussion in Parliament or state legislatures regarding the conduct of judges in performing their judicial duties. The only exception is when a motion is brought forward for the removal of a judge, which must then be addressed by the President.
Power to Punish for Contempt: Both the Supreme Court and High Courts have the authority to punish individuals for contempt of court. Article 129 grants the Supreme Court the power to punish for contempt of its own authority, while Article 215 extends this power to the High Courts.
Prohibition on Retired Judges Practicing in India: Article 124(7) of the Constitution bars retired Supreme Court judges from practicing law or appearing before any court or judicial authority in India, ensuring that their previous roles do not influence future legal proceedings.
These provisions collectively work to secure the judiciary's independence, ensuring that it can function without undue interference and maintain its critical role in upholding the rule of law in India.
Self-Check Exercise-1
Q.1 Only the Supreme Court and not the High Court have the power to punish any person for their contempt. True/False
Q.2 Article 124 (7) of the Constitution prohibits a retired Judge of the Supreme Court to plead or appear before any Court or Judicial Authority in India. True/False
9.4 Factors affecting the Independence of Judiciary in India
Although the Indian Constitution guarantees the independence of the judiciary, recent developments have raised concerns about the appointment of judges. In particular, former Supreme Court judge, Justice Markandey Katju, has highlighted instances where political pressure
influenced judicial appointments. He claimed that three former Chief Justices of India made "improper compromises" by approving the appointment of a judge who was allegedly corrupt, under political influence.
Justice Katju alleged that, under pressure from a Congress Minister, Justice Lahoti extended a judge's term despite concerns about the judge’s integrity. Further, Justice Katju stated that this same judge was later granted another extension by Justice Lahoti’s successor, Justice Y.K. Sabharwal, and ultimately made a permanent judge by Justice K.G. Balakrishnan. This raises serious concerns about the independence of the judiciary in such matters.
The process of appointing judges, which involves the executive branch in consultation with legal experts, has also been a subject of debate. In the landmark case of S. P. Gupta v. Union of India (1981), the Supreme Court ruled that "consultation" under Article 124(2) of the Constitution did not mean "concurrence." This decision emphasized that the executive was not bound by judicial advice when appointing judges or transferring them. As a result, the executive's dominance in judicial appointments and transfers was reaffirmed, which could undermine the judiciary's independence. In response to this, Justice P. N. Bhagwati proposed the creation of a Judicial Commission to oversee the appointment and transfer of judges, though this idea has not been implemented.
However, in the landmark S.C. Advocates on Record Association v. Union of India (1993), the Supreme Court ruled that the opinion of the Chief Justice of India (CJI) must carry significant weight in the selection and transfer of judges, thereby reducing the executive's influence. The Court emphasized that no appointment to the Supreme Court or High Courts should be made without the CJI's consent. This ruling marked a crucial step in ensuring the judiciary's independence, limiting political influence in the appointment process. The decision reinforced that seniority should be the primary criterion for the appointment of the CJI, a principle that remains vital for upholding the integrity of the judiciary.
Nonetheless, the trend of appointing retired judges to various government positions has raised concerns about the judiciary's autonomy. The 14th Law Commission Report noted that the expectation of post-retirement government appointments could compromise the impartiality of judges. It argued that such a practice may lead to doubts about the fairness of a judge who might seek future government employment. The Law Commission emphasized that this practice should be discontinued to protect judicial independence.
These issues highlight the importance of maintaining a truly independent judiciary. Judicial independence safeguards fundamental rights and prevents the state from infringing on citizens' constitutional rights. The Indian Constitution provides a clear framework for an independent judiciary, ensuring that citizens can directly approach the Supreme Court to protect their rights without the interference of the executive.
Self-Check Exercise-2
Q.1 Independence and impartial Judiciary protects the Fundamental Rights including other Constitutional Rights of the citizen from being violated or infringed by the State as well.
True/False
Q.2 Who said that “Power tends to corrupt, and absolute power corrupts absolutely”?
9.5 Summary
The independence of the judiciary, as discussed above, is a cornerstone of the judicial system. Historically, judicial independence has faced several challenges, particularly concerning the appointment and transfer of judges. However, the judiciary has consistently worked to safeguard its independence, reinforcing the notion that it is a fundamental aspect of the Constitution. This principle is crucial for the effective operation of the Constitution and the realization of a democratic society governed by the rule of law.
The interpretation in the Judges Case, which prioritized the executive's role, led to instances where judges were appointed against the Chief Justice of India's advice. This outcome was not in line with the intentions of the framers of the Constitution, who envisioned a judiciary free from executive interference and self-sufficient in its functioning. The decisions in the Second and Third Judges Cases, however, represent significant steps toward protecting judicial independence and upholding the spirit of the Constitution.
Lord Acton say’s that, “Power tends to corrupt, and absolute power corrupts absolutely”.
Whenever there is a mention of the independence of the judiciary, there is always a concern about the latent dangers of the judicial independence and there arises the importance of “Judicial Accountability”. The recent development in this regard is the recommendation of the Law Commission for the inclusion of a whistleblower provision, aimed at protecting those making complaints against judges, in a draft bill dealing with the removal of judges of the Supreme Court and High Courts. Introduction of such a bill by the Law Commission is a major step in the direction of making changes to the rigid procedure in our constitution for the removing of the judges of the Supreme Court and the High Courts.
One of the most important standards underpinning the autonomy of the judiciary is irrevocability. That is, for ordinary judges to be appointed permanently until retirement. The irrevocability of judges, including protection from involuntary transfers, as well as adequate remuneration in conformity with the dignity of the office are other factors that constitute the backbone of genuine independence.
Furthermore, it is important to strike the appropriate balance between judges’ accountability and their independence in adjudication. Disciplinary responsibility of judges shall not extend to the content of their verdicts or to judicial mistakes. Also, the body that initiates cases of judicial
discipline should not be the one that adjudicates them. Judges facing these bodies should enjoy procedural safeguards and disciplinary hearings must be fully transparent.
It is axiomatic that a judge deciding a case should not act on any order or instruction of any third party, inside or outside the judiciary. A hierarchical organization of the judiciary which would amount to subordination of the judges to the court chairpersons or to higher instances in their judicial decision-making activities would be a clear infringement of this principle. In order for freedom from external influence to be ensured, the law should provide sanctions against outside actors seeking to influence judges in any manner.
The final outcome of the above discussion is that the importance of the independence of the judiciary was long ago realized by the framers of the constitution which has been accepted by the courts by marking it as the basic feature of the constitution. It is well known law has to change so as to meet to the needs of the changing society. Similarly judicial independence has to be seen with the changing dimension of the society. Judicial Accountability and Judicial Independence have to work hand in hand to ensure the real purpose of setting up of the institution of judiciary.
9.6 Glossary
• Contempt of Court- Contempt of court, often referred to simply as "contempt", is the crime of being disobedient to or disrespectful toward a court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the court.
• Criminal Law - a system of law concerned with the punishment of offenders.
• Civil Law - the system of law concerned with private relations between members of a community rather than criminal, military, or religious affairs.
9.7 Answers to self check exercisesSelf-Check Exercise-1
Q.1 False
Q.2 True
Self-Check Exercise-2
Q.1 True
Q.2 Lord Acton
9.8 References/Suggested Readings
• V.N. Shukla’s Constitution of India (10th Edn 2001), revised by M. P. Singh.
• M.P. Jain, Indian Constitutional Law.(6th Edn 2013)
• Prof. Kailash Rai, Constitutional Law of India.(4th Edn 2013)
• Independence of Judiciary in India: A Critical Analysis available on http://mulnivasiorganiser.bamcef.org/?p=482 accessed on 28/07/2014.
• Independence of Judiciary in Indian Constitution, available on
• accessed on 28/07/2014.
9.9 Terminal questions
Q1 Discuss the various provisions to ensure independence of judiary in India.
Q2 What is the need to ensure independence of Judiciary?
Q3 What are the various factors to affect independence of judiciary?
UNIT-10
PUBLIC INTEREST LITIGATION (PIL)
Structure
10.0 Introduction
10.1 Learning Objectives
10.2 Laws Governing PIL in India, Abuse and Remedies Self-Check Exercise-1
10.3 Procedure of Filing PIL, Aspects and Factors Self-Check Exercise-2
10.4 Summary
10.4 Glossary
10.5 Answers to self-check exercises
10.6 References/Suggested Readings
10.7 Terminal questions
10.0 Introduction
In Indian law, Public Interest Litigation (PIL) refers to legal action taken to safeguard public interest. This type of litigation is initiated not by the directly aggrieved party, but rather by the court itself or any concerned individual. It is not mandatory for the affected person to personally approach the court for justice. PIL empowers the public through judicial activism, allowing the courts to act in matters where individuals may lack the resources to pursue a case or their ability to seek legal recourse is restricted. In such situations, the court can take cognizance of the issue on its own or a petition can be filed by any public-spirited individual.
Public Interest Litigation (PIL) refers to legal action taken in a court of law to protect the public interest, addressing issues such as pollution, terrorism, road safety, and construction-related hazards. While PIL is not defined by statute, it has been interpreted by the judiciary to reflect the broader public concern. Although the primary focus of PIL is public interest, it can cover various issues, such as:
• Violations of basic human rights, particularly for marginalized groups
• Government policies or their execution
• Compelling municipal authorities to fulfill public duties
• Violations of religious freedoms or other fundamental rights
According to Black's Law Dictionary (Sixth Edition), public interest is defined as something that affects the legal rights or liabilities of the community, rather than the interests of a specific locality or group. It pertains to issues that concern citizens at the local, state, or national levels.
Examples of PIL Cases: On August 31, 2006, the Bombay High Court directed broadcasters to ensure their compliance with the Cable Television Network Act of 1995 and its orders, considering the larger public interest. The PIL, filed by Professor Pratibha Nathani from St. Xavier's College, raised concerns about unregulated films being shown on cable channels without proper certification from the Censor Board for Film Certification (CBFC), which were potentially harmful to children. The court had earlier allowed only 'U' and 'U/A' certified films to be aired.
In response, police action was taken against multi-system operators, who had their decoders seized, preventing them from broadcasting certain channels. Zee Television and Star Television networks were asked to confirm in writing their compliance with the court's directives. The court also required seven channels, including Star Movies, Star One, Star Gold, HBO, ZEE Movies, AXN, and Sony Max, to submit a list of films they planned to air to the police.
Meaning
Public Interest Litigation (PIL), as defined in Black's Law Dictionary, refers to legal action initiated in a court of law aimed at protecting the general or public interest, especially when the legal rights or liabilities of the public or a specific community are impacted. The focus of PIL is often on the welfare of the public, rather than individual claims.
In the case of People's Union for Democratic Rights v. Union of India, the court emphasized that PIL is a strategic extension of the legal aid movement designed to bring justice closer to the disadvantaged segments of society. Unlike traditional litigation, which typically involves disputes between two parties, PIL aims to address and correct systemic injustices affecting large groups of people, particularly those who are poor, marginalized, or otherwise disenfranchised. The purpose of PIL is not to enforce the rights of one individual against another but to protect the broader public interest, ensuring that violations of constitutional or legal rights of vulnerable groups are acknowledged and remedied.
The court further stated that ignoring the rights of the poor would undermine the rule of law, which is a cornerstone of any democratic government. The rule of law is not meant to protect only the privileged few but should ensure that civil and political rights are accessible to everyone, including the marginalized, whose rights often remain unprotected despite being enshrined in law.
Concept of PIL
Article 32 of the Indian Constitution guarantees individuals the right to approach the Supreme Court for the enforcement of the rights granted under this part of the Constitution. Typically, only the person directly aggrieved by the violation of their rights can seek redress under Article 32.
In the landmark case of S.P. Gupta v. Union of India (1981), Justice P. N. Bhagwati expanded the scope of Public Interest Litigation (PIL). He explained that if a legal wrong or injury occurs
to an individual or a group due to the violation of their constitutional or legal rights, or if an unlawful burden is imposed on them, and if these individuals are unable to approach the court due to poverty, helplessness, or other social or economic disadvantages, then any concerned member of the public can initiate legal proceedings. Such proceedings can be filed in the High Court under Article 226, or in the Supreme Court under Article 32, to seek appropriate remedies for the affected individuals or groups.
The traditional rule of locus standi (the right to bring a case) has been relaxed in PIL cases. Now, anyone with a genuine interest in the matter, who is acting in good faith and not for personal or political gain, can approach the court to address violations of fundamental rights or infringements of legal provisions. This ensures that public interest is protected, especially when the affected parties are unable to advocate for themselves.
10.2 Learning Objectives
After studying this lesson, the learner will be able to
- Know the origin and meaning of PIL
- Analyse the laws governing the PIL
- Know the factors abusing PIL and to find out their remedies
- Know the Procedure of filing PIL and its aspects
10.3 Laws governing PIL in India, Abuse and Remedies
Over time, Indian courts have developed several principles regarding Public Interest Litigation (PIL):
• Relaxed Rule of Locus Standi: PILs can be initiated by any individual on behalf of disadvantaged groups who are unable to approach the courts themselves. This relaxes the usual requirement of locus standi to protect the rights and interests of vulnerable communities.
• Relaxed Procedural Rules: Courts have allowed unconventional methods, such as letters or telegrams, to serve as PILs, as seen in the Rural Litigation & Entitlement Kendra, Dehradun v. State of Uttar Pradesh case. The formal rules for pleadings have also been relaxed in PIL cases.
• Judicial Intervention: Courts emphasize the need for intervention when injustices occur, citing the protections offered by Articles 14 and 21 of the Indian Constitution, as well as international human rights conventions, to ensure fair trials and justice for many.
• Maintainability: If a PIL is based on the violation of constitutional rights affecting marginalized individuals, the government may not challenge its maintainability if the court finds a prima facie case.
Principle of Res Judicata: The applicability of res judicata or similar principles depends on the specifics of the case and the nature of the PIL.
Appointment of a Commission: In certain situations, the court may appoint a commission or other body to investigate a matter. If the commission takes over management of a public institution, the court may direct its operation.
Constitutionality of Statutes: Courts generally do not entertain PILs concerning the constitutionality or validity of laws or statutory rules, especially in the High Courts.
Complete Justice: Under Article 142, the Supreme Court has the power to issue orders necessary for achieving complete justice. While High Courts can also issue such orders, they do not have the same powers as the Supreme Court in this regard.
Misuse of PILs: Courts are vigilant against the misuse of PILs, as it undermines their purpose— helping the marginalized. However, even if a PIL stems from personal grievances, courts may still investigate the matter if it serves the public interest, as seen in Kushum Lata v. Union of India.
Development of Legal Concepts: In environmental law, the courts have introduced principles like the Polluter Pays Principle, the Precautionary Principle, the Public Trust Doctrine, and Sustainable Development, helping shape the evolution of environmental jurisprudence.
PIL: A Blessing
1. Affordable Legal Remedy: PIL offers a cost-effective legal solution, allowing citizens to raise issues of public concern without the financial burden associated with traditional legal proceedings, as the court fee is minimal.
2. Addressing Public Issues: PIL enables citizens to spotlight and resolve large-scale issues in society, especially in areas such as human rights, environmental protection, and consumer welfare.
Abuse of PIL
While PIL has been a beneficial tool for many, its misuse has also been a growing concern. The Supreme Court has found it necessary to establish guidelines to manage and address this abuse. Unfortunately, the rise in PIL filings for improper reasons has led to its extended misuse.
In recent years, some PIL activists have used the process to harass others, as it requires only a nominal fee, unlike traditional litigation. This has led to negotiation opportunities for those seeking to benefit from stay orders, further muddying the intended purpose of PIL.
Just as a tool intended for defense can be misused for offense, the relaxation of the locus standi requirement has allowed individuals with private agendas to present their causes as matters of public concern.
Increasing Abuse and Its Impact
The abuse of PILs has overshadowed its original intent, leading to genuine cases being questioned or dismissed due to the growing number of spurious petitions driven by personal interests masked as public concerns.
Measures for Regulation
To curb the misuse of PIL, the Supreme Court has outlined guidelines to ensure that only bona fide cases are heard. The court must remain cautious and ensure that the petitioner's motives are not
self-serving or politically motivated. The legal process should not be exploited for political agendas or to delay administrative actions that would otherwise be lawful.
In cases where PIL affects individuals who are not directly involved in the litigation, the court should be particularly careful and consider the wider impact of its decisions. This necessitates ensuring adequate notice is provided to all affected parties, fostering a more balanced and fair process.
Though the court allows letters from aggrieved individuals, public-spirited citizens, or social action groups to serve as writ petitions, it does so only under specific conditions. These include situations where the parties involved face hardships such as poverty, disability, or socio-economic disadvantages that make it difficult for them to approach the court.
While regulating PIL is essential to prevent misuse, proposals for stricter control often lead to protests, especially from those who believe that such regulations would infringe upon their fundamental rights. In this context, the Supreme Court must ensure that safeguards provided by the Civil Procedure Code, particularly in relation to stay orders and injunctions, are applied to PIL cases.
In the landmark case Raunaq International Limited v. IVR Construction Ltd., Justice Sujata V Manohar highlighted the need for accountability in cases involving stay orders. If a stay halts a project, the party initiating the PIL must bear the costs of the delay, including any escalated costs, should the litigation ultimately fail. This ensures that the public does not bear the financial burden of prolonged delays caused by meritless claims.
Remedies - Public Interest Litigation (PIL)
In a previous project focused on the essential knowledge of law for public servants, we provided an overview of Public Interest Litigation (PIL). For your reference, here is a summary:
Public Interest Litigation (PIL) can be filed in either a High Court or directly in the Supreme Court. It is not a requirement for the petitioner to have suffered personal harm or grievances to pursue such litigation. PIL allows socially conscious individuals or NGOs to advocate for a public cause, seeking judicial intervention to address a public injury. This injury may stem from the failure to perform a public duty or from a violation of constitutional provisions. PIL serves as a mechanism for ensuring public involvement in judicial review of administrative actions, making the judicial process more accessible and democratic.
As per the guidelines set by the Supreme Court, any individual who has a sufficient interest in a matter may file a Public Interest Litigation (PIL), provided the following conditions are met:
• There must be a personal injury or harm to a vulnerable group of people who find it difficult to access the legal justice system.
• The individual filing the petition must have a legitimate interest in pursuing a case related to public harm.
• The injury must have resulted from a breach of public duty or the violation of constitutional or legal provisions.
• The petition should aim to enforce public duties and ensure compliance with constitutional or legal requirements.
These provisions serve as a powerful safeguard, offering significant social benefits when the government fails to address the issues faced by marginalized citizens.
Several factors have played a key role in the expansion of PIL in India, including:
• The Indian Constitution: Unlike the British system, India’s written Constitution, particularly through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy), provides a framework for regulating relations between the state and its citizens, as well as among citizens.
• Progressive Social Legislation: India has some of the most progressive social laws in the world, covering areas like bonded labor, minimum wages, land ceiling, and environmental protection. These laws help the courts hold the executive accountable for failing to protect the rights of the poor.
• Liberal Interpretation of Locus Standi: The relaxation of locus standi, allowing anyone to approach the court on behalf of those unable to represent themselves, has contributed to the rise of PILs. Judges have also initiated actions based on media reports or letters received from citizens.
• Creative Judicial Interpretation: Even though social and economic rights in Part IV of the Indian Constitution are not directly enforceable, the courts have interpreted these rights as part of the fundamental rights framework, making them judicially enforceable. For example, the right to life under Article 21 has been expanded to include the right to legal aid, the right to live with dignity, the right to education, and freedom from torture.
• Proactive Judiciary: Sensitive judges have been innovative in addressing the needs of the poor. For instance, in the Bandhua Mukti Morcha case of 1983, the Supreme Court reversed the burden of proof, stating that any instance of forced labor should be treated as bonded labor unless proven otherwise by the employer. In another case, Asiad Workers, Justice P.N. Bhagwati allowed individuals receiving less than the minimum wage to directly approach the Supreme Court.
• Appointment of Commissions: In cases where the petitioner cannot present all necessary evidence, such as in cases involving marginalized individuals or complex issues, courts have appointed commissions to gather facts and report back to the bench.
Self-Check Exercise-1
Q.1 Under Article 142 of the Constitution of India, the Hon’ble Supreme Court of India has the discretionary power to pass a decree or order as may be necessary to do complete justice. True/False
Q .2 Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community
have pecuniary interest or some interest by which their legal rights or liabilities are affected..
True/False
10.4 Procedure for Filing a Public Interest Litigation (PIL)
1. Make an Informed Decision: Consider the necessity of filing the case carefully.
2. Consult Relevant Stakeholders: Speak with interest groups and communities that may be impacted or could be allies in the matter.
3. Careful Considerations Before Filing:
o Litigation can be costly.
o It may be time-consuming.
o Legal proceedings may shift decision-making power away from communities.
o A negative outcome may weaken the strength of the movement.
o Involvement in litigation might distract from addressing the core issues.
4. Steps to Take Once You Decide to Proceed:
o Gather all relevant information for the case.
o Collect detailed evidence and documents. If you plan to include photos, keep the original negatives and obtain affidavits from photographers. Retain receipts and other supporting documents.
o Contact the relevant authorities and clearly state your demands.
o Organize and maintain records in an efficient manner.
o Seek legal consultation to determine the appropriate forum for your case.
o Hire a qualified lawyer, or, if you are representing yourself, ensure you get sound legal advice on how to prepare and file the petition.
o Ensure that the PIL is filed by a registered organization. If your organization is not registered, the PIL can be filed in the name of an office bearer or member in their personal capacity.
o You may need to issue a legal notice to the concerned parties or authorities before filing. For cases against the government, a notice must typically be issued at least two months prior to the filing of the PIL.
Expanding Existing Rights and Creating New Ones
o There is a pressing need to both expand existing rights and establish new ones. Legal advocacy should not only be measured by the outcome of cases but also by the broader impact on social change. For example, despite their failure to have the Armed Forces Special Powers Act repealed after years of efforts, activists like Haksar and others have achieved success in advocating for changes in the criminal procedure code. Specifically, they secured a provision requiring that women be searched only by women, a measure that has been extended to the military.
o Similarly, it is important to think about creating new rights with an eye on future needs. For instance, Article 14 of the Indian Constitution offers equal treatment to multinational corporations (MNCs) and individual citizens, even though the disparity between them is vast. In light of the growing influence of MNCs, there is a need to critically reassess the concept of equality within the context of liberal theory, and to
develop innovative ideas about how equality can be defined and applied. One way to generate these new ideas is through the filing of strategic test cases.
o This is also true when it comes to the balance between individual rights and collective rights. The current legal framework largely recognizes only individual ownership of private property and state-controlled public property. However, before the British legal system was imposed, there existed a strong tradition of collective property rights, which has largely been excluded from modern legal discourse. As a result, forms of collective or shared resources—whether they pertain to rights, relationships, practices, or knowledge—have little recognition within contemporary legal structures. These collective rights are not part of the standard legal conversation, and when they are mentioned, such as in the context of "collective human rights," they are often met with skepticism and disbelief. Pradeep Prabhu of Khastakari Sanghatana, a trained advocate, has, however, achieved some success by convincing the Supreme Court to accept the testimonies of poor tribal people as valid legal evidence.
Sensitizing Lawyers
In the current context, one of the most significant challenges faced by social activists is identifying lawyers who possess a broad vision and are willing to fight for a cause on a larger scale. This requires continuous efforts to educate and engage lawyers, ensuring that their involvement goes beyond just the details of a specific case. It is also essential to raise awareness among law students to cultivate a future generation of public interest lawyers in the country.
One of the main reasons for the scarcity of public interest lawyers in India is the lack of financial incentives. In contrast, public interest lawyers in the United States are more readily available, often working on a "no-win, no-fee" basis due to the substantial damages awarded in US courts, which are then shared between the client and the lawyer. In India, however, even when free legal aid is available for marginalized groups like SCs, STs, industrial workers, and women, public-spirited lawyers often end up covering the costs out of their own pockets, as the fees reimbursed for basic services such as photocopying do not adequately cover the expenses, as pointed out by Ravi Rebba Pragada from the NGO Samata, which serves tribal communities in the Vishakapatnam district of Andhra Pradesh.
In the UK, although courts do not award significant damages like in India, there have been creative approaches to legal aid, with wealthy benefactors supporting legal costs. For instance, a property developer funded the legal expenses for numerous arthritis patients who filed lawsuits over side effects from the drug Opren. Similarly, Sir James Goldsmith, a billionaire financier, established the Goldsmith Libel Fund to support various libel defendants. However, it remains uncertain whether such private initiatives would be available or welcomed to support PIL cases for the disadvantaged. Activists must, therefore, consider ways to encourage more public-spirited lawyers to engage in these causes.
Public Interest Litigation (PIL) can be filed against government bodies such as the Central or State Governments, Municipal Authorities, but not against private individuals or entities. The term
"State," as defined in Article 12 of the Constitution, includes the Government of India, the Parliament of India, State Governments, State Legislatures, and all local or other authorities within the territory of India or under the control of the Government of India.
The entities and bodies classified under Article 12 are:
• The Government and Parliament of India
• The Government and Legislature of each State
• All local authorities
• Other authorities within the territory of India or under the control of the Government of India.
In the case of Electricity Board, Rajasthan v. Mohan Lal, the Supreme Court clarified that "other authorities" includes all entities established by the Constitution or statutes, on whom powers are conferred by law.
However, while PILs cannot be filed directly against private individuals, a private entity can be included as a respondent in the case, provided the relevant government or state authority is made a party. For example, if a private factory in Delhi is causing pollution, a PIL could be filed against the Delhi Government, the Pollution Control Board, and the factory. But the PIL cannot be filed solely against the private entity.
Aspects of Public Interest Litigation
(a) Remedial Nature: The remedial nature of PIL represents a shift from traditional standing rules.
It incorporates principles from Part IV of the Indian Constitution (Directive Principles of State Policy) into Part III (Fundamental Rights), transforming the procedural aspects of Indian law into a more dynamic welfare-oriented system. Cases such as Bandhua Mukti Morcha v. Union of India and Unnikrishnan v. State of A.P. illustrate this change in judicial approach.
(b) Representative Standing: Representative standing is an innovative extension of the standing exception, allowing a third party to file petitions on behalf of individuals unable to approach the court themselves. The Indian PIL concept is broader than its American counterpart and functions as a modified form of class action.
(c) Citizen Standing: The concept of citizen standing significantly broadens the traditional rule, enabling the court to act not only as a protector of individual rights but also as a guardian of the rule of law, especially when threatened by governmental lawlessness.
(d) Non-Adversarial Litigation: According to the Supreme Court in People's Union for Democratic Rights v. Union of India, PIL represents a departure from traditional adversarial litigation, where two parties contest claims. In PIL, the focus is on addressing public interest issues rather than individual disputes, making it a non-adversarial form of legal action.
Non-Adversarial Litigation has two key aspects:
1. Collaborative Litigation: This form of litigation involves cooperation between the claimant, the court, and public officials to ensure that fundamental human rights are accessible to a
large section of the population. PIL plays an essential role in assisting the executive branch to fulfill its constitutional responsibilities. The court takes on roles beyond its traditional function of making judgments. These roles include:
(i) Ombudsman: The court listens to citizen complaints and highlights significant issues for government attention.
(ii) Forum: The court provides a platform to discuss public concerns and offers emergency relief through interim orders.
(iii) Mediator: The court also suggests possible solutions and compromises to resolve disputes.
2. Investigative Litigation: This type of litigation involves gathering information from various sources, such as reports from the Registrar, District Magistrates, expert opinions, and media reports, to investigate and address public issues.
(e) Crucial Aspects: The flexibility in adhering to procedural laws is a key feature of PIL. In the Rural Litigation and Entitlement Kendra v. State of U.P. case, the Supreme Court rejected the defense of res judicata and allowed compensation. Similarly, in Sheela Barse v. State of Maharashtra, the court issued guidelines to curb custodial violence. The Supreme Court has also significantly expanded the interpretation of the right to live with dignity under Article 21 of the Indian Constitution.
(f) Relaxation of Locus Standi: The strict requirement of locus standi has been relaxed through the concepts of representative and citizen standing. In the case of D.C. Wadhwa v. State of Bihar, the Supreme Court allowed a petition from a political science professor, who had conducted substantial research, to challenge the state’s practice of repromulgating ordinances without legislative approval. The court determined that the petitioner had sufficient interest in the case. A person with genuine interest, acting in good faith, can approach the court to challenge violations of fundamental rights or statutory provisions, as long as it is not for personal, political, or profit-driven motives. The court seeks to balance two conflicting interests: preventing baseless allegations and ensuring public interest is protected.
(g) Epistolary Jurisdiction: This form of judicial activism allows the court to address grievances brought to its attention through letters, demonstrating its commitment to the needs of marginalized communities. PIL cells have been established across India to provide a platform for individuals in need of legal assistance. This approach exemplifies the court’s active role in safeguarding the rights of the underserved and ensuring that their voices are heard.
Factors that have contributed to growth of PIL
Several key factors have contributed to the rise of Public Interest Litigation (PIL) in India, including:
1. The Structure of the Indian Constitution: Unlike the United Kingdom, India has a written Constitution, which through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy), outlines a framework to govern the relationship between the state and its citizens, as well as the interactions between citizens themselves.
2. Progressive Social Legislation: India has enacted some of the most forward-thinking social laws globally, including those related to bonded labor, minimum wages, land reforms, and environmental protection. These laws have facilitated the courts' ability to hold the
government accountable when it fails to safeguard the rights of disadvantaged groups as mandated by law.
3. Expanded Locus Standi: The more liberal interpretation of locus standi has allowed any individual to approach the court on behalf of those who are unable to do so due to economic or physical constraints. In some cases, judges have taken suo motu actions based on media reports or letters submitted by the public.
4. Judicial Enforcement of Socio-Economic Rights: While the social and economic rights outlined in Part IV of the Constitution are not directly enforceable, the judiciary has creatively interpreted these rights as part of the fundamental rights under Part III, making them justiciable. For example, the right to life under Article 21 has been expanded to include the right to free legal aid, dignity, education, work, protection from torture, and humane treatment in prisons.
5. Innovative Judicial Approach: Judges have been proactive in advocating for the disadvantaged. In the Bandhua Mukti Morcha case (1983), the Supreme Court shifted the burden of proof to the employer, treating every case of forced labor as bonded labor unless proven otherwise. Similarly, in the Asiad Workers case, Justice P.N. Bhagwati ruled that workers receiving below minimum wage could directly approach the Supreme Court, bypassing lower courts and labor commissioners.
6. Commissioned Investigations: In cases where petitioners lack the resources to provide adequate evidence, particularly when it is voluminous or where the parties are socially or economically marginalized, courts have appointed commissions to gather and present factual information to aid in the judicial process.
Mechanism for Protecting Human Rights through PIL
The protection of human rights through Public Interest Litigation (PIL) is achieved in several ways:
1. Expanding the Scope of Fundamental Rights: PIL has played a significant role in broadening the definition of fundamental rights such as equality, life, and personal liberty. Through PIL, rights like access to a speedy trial, free legal assistance, dignity, education, healthcare, a clean environment, and freedom from exploitation and torture have been recognized. These newly defined rights offer legal avenues for enforcement through PIL.
2. Democratization of Access to Justice: By relaxing the traditional rules of locus standi, PIL has made it easier for any citizen or social action group to approach the court on behalf of the marginalized. Courts can also be alerted to human rights violations through letters or telegrams, a process referred to as epistolary jurisdiction.
3. Innovative Forms of Relief: The courts, through PIL, can provide new kinds of remedies, such as interim compensation to victims of government negligence. This is different from the traditional legal approach, where interim relief is limited to preserving the status quo until a final ruling. Additionally, PIL does not preclude a person from filing a civil suit for damages in the future, enabling the court to fashion reliefs suited to the specific situation.
4. Judicial Monitoring of State Institutions: PIL also allows courts to monitor and oversee the functioning of state-run institutions like prisons, juvenile homes, and mental hospitals,
ensuring improvements in their management. This kind of oversight is referred to as creeping jurisdiction, where the judiciary intervenes to protect human rights within these institutions.
5. Fact-Finding and Investigative Measures: In many cases, the courts appoint their own commissions or officials to investigate human rights violations. They may also collaborate with bodies like the National Human Rights Commission (NHRC) or the Central Bureau of Investigation (CBI) to gather evidence and examine violations, a process known as investigative litigation.
Who Can File a PIL and Against Whom?
• Eligibility to File:
Any citizen has the right to file a Public Interest Litigation (PIL) by submitting a petition:
o Under Article 32 of the Indian Constitution, in the Supreme Court.
o Under Article 226 of the Indian Constitution, in the High Court.
o Under Section 133 of the Criminal Procedure Code, in the Court of a Magistrate.
• Requirements for Filing:
For a PIL to be accepted, the court must ensure that the petition meets certain criteria. It must be filed by an aggrieved individual, a socially-conscious citizen, or a group advocating for social causes, and must address violations of legal or constitutional rights on behalf of individuals who are unable to approach the court themselves.
• Parties Against Whom PIL Can Be Filed:
PIL can be filed against public entities, such as:
o Central or State Governments
o Municipal Authorities
It cannot be filed against private individuals or parties. The term "State" as defined under Article 12 of the Constitution includes the Government and Parliament of India, as well as the governments and legislatures of the individual states, along with local authorities or any bodies controlled by the government.
Significance of PIL
• Access to Justice: The primary goal of PIL is to enable common citizens to approach the courts for legal remedies, ensuring wider access to justice.
• Social Change: PIL serves as a crucial tool for social transformation, promoting the Rule of Law and ensuring justice is balanced with the law.
• Empowerment of the Marginalized: Initially, PIL was designed to make justice accessible to the underprivileged and marginalized sections of society.
• Protection of Human Rights: PIL helps in safeguarding human rights by providing a mechanism for addressing violations and ensuring that rights reach those who have been denied them.
• Democratization of Justice: PIL broadens access to justice, allowing any citizen or organization with the capacity to represent those who cannot afford or are unable to seek legal redress.
• Judicial Oversight: It aids in the judicial monitoring of state-run institutions, such as prisons, mental health facilities, and protective homes, ensuring better management and accountability.
• Judicial Review: PIL plays a significant role in reinforcing judicial review, allowing courts to assess and evaluate administrative actions that impact public welfare.
• Public Participation: PIL encourages active public involvement in holding the administration accountable by facilitating the judicial review of governmental actions.
Weaknesses of PIL
• Competing Interests: PIL may sometimes create conflicts between competing rights. For instance, when industries are ordered to shut down due to pollution, the livelihood of workers and their families may not be adequately considered.
• Court Overload: The increase in frivolous PILs filed by individuals with vested interests can overwhelm the court system. PILs, which were originally intended for the oppressed, have increasingly been used for corporate, political, or personal agendas.
• Judicial Overreach: In some cases, PILs could lead to judicial overreach, where the judiciary intervenes in matters that are better addressed by the executive or legislature, particularly when dealing with socio-economic or environmental issues.
• Delay in Justice: The delay in the resolution of PIL cases, particularly those concerning disadvantaged groups, can result in important cases becoming irrelevant, rendering judicial rulings of little practical value.
Self-Check Exercise-2
Q .1 The original purpose of PILs have been to make justice accessible to the poor and the
marginalized. True/False
Q .2 A Public Interest Litigation can be filed against a State/ Central Govt., Municipal
Authorities, and any private party. True/False
10.5 Summary
Public Interest Litigation (PIL) has emerged as a significant tool for fostering social change, benefiting all segments of society. It serves as a means for people to access justice, and its introduction has proved advantageous for developing countries like India. PIL has played a crucial role in addressing societal injustices and promoting the welfare of disadvantaged groups. For example, in Bandhua Mukti Morcha v. Union of India, the Supreme Court ordered the release of bonded laborers, while in Murli S. Dogra v. Union of India, it imposed a ban on smoking in public
places. In the case of Delhi Domestic Working Women's Forum v. Union of India, the Court issued guidelines for the rehabilitation and compensation of working women who were victims of sexual violence. Similarly, in Vishaka v. State of Rajasthan, the Supreme Court established comprehensive guidelines to prevent workplace sexual harassment of women.
In conclusion, it is apt to recall Cunningham's statement that Indian PIL may be likened to a "Phoenix"—a fresh, creative force rising from the ashes of outdated systems.
PIL represents a bold step taken by a developing common law nation to challenge centuries of legal imperialism. It contests the idea that western legal frameworks are always the most effective for economic and social progress, highlighting the shortcomings of such legal models in developing countries like India, which often resulted in the oppression of marginalized groups.
The transition from a rigid legal system to one that embraces legal pluralism stems from dissatisfaction with traditional legal structures. In India, rather than simply overhauling the justice system, PIL sought to bring justice closer to the people by directly engaging with the courts. This shift has not only redefined the judicial role but has also made it possible for courts to make justice more accessible to the common man.
Though PIL is still in its formative stages, challenges in handling such cases are inevitable. However, these challenges can be addressed through innovative solutions. Ultimately, PIL fosters a new approach to state accountability for constitutional and legal violations that harm marginalized communities. To close, we reflect on the words of Justice Krishna Iyer: “Judicial activism achieves its highest reward when its decisions bring relief to those in need.”
10.6 Glossary
• Locus standi- the right or ability to bring a legal action to a court of law, or to appear in a court.
• Litigation - the process of taking an argument between people or groups to a court of law.
• Cognizance - Cognizance literally means knowledge or notice, and taking cognizance of offence means taking notice, or. becoming aware of the alleged commission of an offence.
10.7 Answers to self-check exercisesSelf-Check Exercise-1
Q.1 True
Q.2 True
Self-Check Exercise-2
Q.1 True
Q.2 False
10.8 Terminal questions
Q1 Discuss the laws governing the PIL in India.
Q2 How the PIL is being misused? Discuss various ways.
Q3 What are remedies to make PIL effective?
UNIT-11
LIABILITY OF ADMINISTRATION IN CONTRACTS AND TORTS
Structure
11.0 Introduction
11.1 Learning Objectives
11.2 Contractual liability of administration in India & Liability of State in Contracts and Torts
Self-Check Exercise-1
11.3 Liability of Administration in Tort & Compensation by the State
Self-Check Exercise-2
11.4 Summary
11.5 Glossary
11.6 Answer to self-check exercises
11.7 References/Suggested Readings
11.8 Terminal questions
11.0 Introduction
Section 2(h) of the Indian Contract Act, 1872 defines a contract as "an agreement enforceable by law." Meanwhile, Section 2(e) of the same Act explains that an "agreement" means every promise or set of promises that are mutually supported by consideration.
When either the central government or a state government enters into a contract, it is referred to as a government contract.
Liability of Public Servants
It is important to distinguish between the liability of the State and the liability of individual officers. Regarding individual officers, if they act beyond their official powers or engage in unlawful conduct, they can be held accountable in the same manner as any private citizen. Their liability is governed by general laws, such as those pertaining to contracts, torts, or
criminal law. Public servants who perform their duties impartially, without bias or malicious intent, are not personally liable for losses caused to others, provided their actions are within the scope of their official duties. However, if an officer acts outside the authority granted to them, they may be held liable under civil law just as a private person would be. In certain instances, statutory protections are in place to shield public servants from liability while acting in the course of their duties.
Public Accountability
Recent developments in the area of public accountability highlight its critical role in reducing corruption. Without effective accountability mechanisms, corruption becomes a low-risk and high-reward activity. The Supreme Court's ruling in D.D.A v. Skipper Constructions underscores the importance of addressing these issues.
Contractual Liability of the Administration in Britain
Prior to 1947, under common law, the Crown could not be sued in a court of law for matters involving contracts. This immunity originated in feudal times, when a subject could not sue a lord in his own courts. A subject could, however, present a claim through a petition, and if the monarch granted the royal fiat, the claim could be tried in court. If the royal fiat was denied, the individual had no other recourse. This rule was overturned by the Crown Proceedings Act, 1947, which allowed legal actions to be brought against the Crown to enforce contractual obligations.
11.1 Learning Objectives
After studying this lesson, the learner will be able to
- Know the contractual liability of administration in India
- Know the quasi-contractual liability
- Know the pre and post constitution decisions by the state
Know the compensation to be given by the state
11.2 Contractual liability of administration in India & Liability of State in Contracts and Torts
A. Formation of Government Contracts
Article 299(1) of the Indian Constitution outlines specific requirements for contracts made under the executive authority of the central or state government to be considered valid. These requirements are as follows:
1. The contract must explicitly state that it is made by the President or Governor, depending on the situation.
2. The contract must be executed on behalf of the President or Governor.
3. The manner of execution and the execution itself must be authorized or directed by the President or Governor.
4. The term "executed" in Article 299(1) indicates that a contract with the government must be in writing. An oral agreement is not sufficient under this provision.
In the case of K.P. Chowdhary v. State of Madhya Pradesh, the Supreme Court ruled that a contract between the government and another party must fully comply with Article 299(1) to be enforceable. If it does not, the contract is void and unenforceable by either party.
The judiciary has sought to balance two considerations regarding Article 299:
1. Protecting the government from unauthorized contracts.
2. Ensuring that individuals or parties entering into contracts with government officials are not unfairly impacted when proper procedures are not followed.
For a contract with the government to be legally binding, it must be expressed in the name of the President or Governor. Even if a person authorized by the President or Governor makes the contract, it remains unenforceable unless it is explicitly stated as being made on their behalf.
The Supreme Court has held that when the government enters into contracts or issues licenses, it must do so transparently and in accordance with established laws and policies. The government cannot act arbitrarily, and its actions must be based on clear, well-defined policies communicated to the public.
B. Ratification of Government Contracts
Before 1968, a common judicial view was that although the government could not normally be sued for informal contracts, it could assume responsibility for them by ratifying such contracts.
In the case of State of West Bengal v. B.K. Mondal, the Supreme Court clarified that a contract that does not conform to Article 299(1) is not "void" in the strict legal sense and may be ratified by the government. This suggests that even if a contract fails to meet the formal requirements of Article 299(1), the government can still validate it through subsequent ratification.
Liability of the State in Contracts and Torts
Article 298 of the Indian Constitution grants the executive powers of both the Union and each State the authority to engage in trade or business, acquire, hold, and dispose of property, and enter into contracts for any purpose. Article 299(1) specifies the process for creating such contracts.
According to this provision, all contracts made by the Union or State in the exercise of executive power must be expressed as made by the President or Governor, depending on the case.
Additionally, such contracts and property assurances must be executed on behalf of the President or Governor by individuals authorized by them and in the manner they specify.
Article 299(2) clarifies that neither the President nor the Governor will be personally liable for any contract or assurance made under the Constitution or by law, even if executed by someone on their behalf.
Under these provisions, the general laws of contract still apply to government contracts, provided they are consistent with Article 299(1).
For a contract with the Union or State to be valid and enforceable, the following conditions must be met:
1. The contract must explicitly state it is made in the name of the President or the Governor.
2. The contract must be executed on behalf of the President or Governor, and must be in writing.
3. The contract must be executed by a person who is duly authorized by the President or the Governor.
If these conditions are not met, the contract is considered void and unenforceable.
The Supreme Court has emphasized that when a government contract is challenged, courts should not intervene unless there is a significant public interest or evidence of mala fide actions. When a writ petition is filed in the High Court challenging the award of a government contract, the court must ensure that public interest is involved before considering the petition.
Effect of a valid contract with the government
As per Article 299(2) of the Indian Constitution, neither the President nor the Governor can be held personally liable for any contract or assurance executed for the purposes of the Constitution or related to the Government of India. Once a contract is entered into with the government in compliance with Article 299, the Indian Contract Act becomes applicable, bringing the standard laws of contract into play. However, the application of private contract law to public contracts may sometimes lead to injustices.
Government service contracts, which are not covered by Article 299, function differently. After being employed by the government, a person’s rights and duties are regulated by statutory rules established by the government, not by the initial contract between the parties. Such contracts are subject to the government's discretion, and can be terminated at will, even if there are express conditions to the contrary.
In India, when there is a breach of a government contract, the only legal remedy is typically a lawsuit for damages. Traditionally, a writ of mandamus could not be used to enforce government contractual obligations. However, the Supreme Court in Gujarat State Financial Corporation v. Lotus Hotels took a different stance, allowing the issuance of a writ of mandamus to enforce these obligations. The Court held that it was no longer acceptable for the government to break a solemn contract and then argue that the aggrieved party could only seek damages instead of specific performance.
The doctrine of judicial review has extended to government contracts and those made by its instrumentalities. Prior to the landmark case Ramana Dayaram Shetty v. International Airport Authority, courts held that the government had the right to choose whom it contracted with, and such decisions were not subject to judicial scrutiny under Article 14 of the Constitution. However, after this case, the Court adopted a new approach, holding that the government cannot exercise absolute discretion in awarding contracts. It must act reasonably, fairly, and without discrimination.
In Kasturi Lal v. State of J&K, Justice Bhagwati observed that every government action carries a public element and must be based on reason and guided by public interest. Arbitrary actions by the
government, lacking reason, are subject to being invalidated. Fairness and transparency are crucial for legitimate state action. In Tata Cellular v. Union of India, the Court reaffirmed that while the government has the right to reject tenders, the principles of fairness and equality under Article 14 must still be upheld.
Ratification
Under the current legal framework, a contract made in violation of Article 299(1) is deemed void and cannot be ratified. The Supreme Court has clarified that any contract not in compliance with Article 299(1) is void from the outset, and cannot be enforced, even by invoking the doctrine of estoppel. In such cases, estoppel does not apply, and the parties cannot be prevented from challenging the contract’s validity based on non-compliance with the mandatory requirements of Article 299.
Government actions, including in contractual matters, cannot be arbitrary, capricious, or lacking in principle. As Justice Bhagwati noted, all government activities must be informed by reason and guided by public interest. If a government exercises its powers arbitrarily, that action will be invalid. The government must act reasonably and fairly, keeping in mind the legitimate expectations of affected parties. In the case of Shrilekha Vidyarathi v. State of U.P., the Supreme Court reiterated that the state’s actions, even in the contractual realm, must adhere to the principles of fairness and reasonableness under Article 14 of the Constitution.
Moreover, the provisions of Sections 73, 74, and 75 of the Indian Contract Act, which deal with the assessment of damages in breach of contract cases, apply equally to government contracts. This ensures that the government is held accountable in case of a breach of its contractual obligations.
Quasi-Contractual Liability
Under Section 70 of the Indian Contract Act, if a person lawfully performs a service or provides goods to another, and the recipient benefits from these actions, the beneficiary is obligated to compensate the person who provided the goods or services. This applies even if the person providing the goods or services did not intend to offer them free of charge. Consequently, if Section 70’s conditions are met, the government may also be held accountable for compensation if it benefits from work done or services provided by someone else.
Section 70 is grounded in the concept of quasi-contract or restitution rather than a formal contract between the parties. This provision allows a person who has supplied goods or provided services, without the expectation of payment, to claim compensation from the person who has benefited from those goods or services. Essentially, it establishes a liability based on fairness and equity, even in the absence of a written agreement or formal contract.
Section 65 of the Indian Contract Act, 1872
Section 65 comes into play when an agreement with the government is found to be void, typically due to non-compliance with the requirements of Article 299(1). In such cases, the party who benefits from the agreement is required to either restore the advantage received or compensate the government. For example, if a contractor enters into an agreement with the government to build a warehouse and receives payment, but the agreement is later deemed void due to noncompliance with Article 299(1), the government can reclaim any amount paid to the contractor.
Section 65 mandates that if an agreement or contract is deemed void, any party who has received
an advantage under such a contract must either return the benefit or provide compensation to the other party from whom it was received.
Self-Check Exercise-1
Q.1 A person duly authorized by the President or the Governor of the State, as the case may be,
must execute the contract. True/False
Q.2 The contract with the Government will not be binding if it is not expressed to be made in the
name of the President or the Governor, as the case may be. True/False
11.4 Liability of Administration in Tort & Compensation by the State
Tortious liability arises when there is a violation of a legal obligation that is owed to the public, and such violations can be addressed through unliquidated damages. The principle "Ubi Jus Ibi Remedium" played a significant role in the development of Tort law, which addresses wrongs committed between individuals under common law. In Roman law, the state was considered sovereign and was not held liable for torts committed against its citizens. This was seen as a characteristic of sovereignty, meaning that the state could not be sued in its own courts without its consent.
Similarly, in England, the Crown enjoyed immunity from tortious liability. However, with the rise of the welfare state, the role of the state evolved. The logic of the welfare state led to an increase in state intervention, which blurred the lines between the public and private roles of the state. The state began to be recognized as a legal entity acting through its officials and agents, who were accountable under the law. Immunity from liability remained restricted to traditional state functions such as legislation, judicial administration, defense, diplomacy, and crime prevention.
The issue of state liability in tort has gained significant attention in modern legal discourse. The welfare state has strengthened the connection between individual rights and state duties, with the expansion of state functions leading to increased accountability. As state actions grow, so too does its responsibility to its citizens, making state liability a critical issue in contemporary legal discussions.
Liability of Administration in Tort
State liability refers to the responsibility of the government for the wrongful acts (whether by omission or commission) committed by its officials or servants. This liability is governed by both statutory and common law, and it is not a fixed or unchanging concept. The concept of state liability for tortious acts of its servants allows the government to be held accountable, either voluntarily or involuntarily, for these acts and to face claims for unliquidated damages in a court of law. This area of law is an extension of the broader field of tort law. Like many other legal doctrines, the law of torts was brought to India by the British, though it has since been adapted to the local legal system and constitutional framework.
English Law
In England, the Crown traditionally enjoyed complete immunity from tort liability under common law, based on the maxim "the King can do no wrong." In 1863, in the case of Tobin v. R., the court remarked that if the Crown were liable in tort, it would undermine the established legal order. However, in 1947, the Crown Proceedings Act was passed, which placed the government in a position similar to that of a private individual with respect to tort liability.
Indian Law
India did not adopt the maxim "the King can do no wrong," and the government was not granted absolute immunity from tort liability. Before the Constitution, the government was held accountable for the actions of its employees in certain cases. According to Article 294(4) of the Indian Constitution, the government’s liability may arise from a variety of contracts or other legal engagements. Article 12 defines "State," and Article 300(1) outlines the scope of its liability, establishing that the liability of the Union and State governments is equivalent to that of the Dominion of India under prior legal provisions.
The concept of public responsibility is of significant importance in the Indian legal system. It is settled law that all discretionary powers must be exercised reasonably and in the public interest. For example, in Arvind Dattatreya v. Maharashtra State, the Supreme Court ruled that the transfer of a police officer was an arbitrary exercise of power intended to undermine honest officers, which was deemed an abuse of authority.
Vicarious Liability of the State
The state may be vicariously liable for the torts committed by its employees in the course of their official duties. However, the state will not be held liable if the act was necessary to protect life or property, or if the action was judicial or quasi-judicial and performed in good faith. The state's immunity is limited to specific statutory protections, but malicious or wrongful acts are not shielded. In such cases, the burden of proving the malicious intent lies with the party challenging the administrative action.
Doctrine of Respondeat Superior
The doctrine of Respondeat Superior (Let the master answer) holds that an employer or master is liable for the negligent actions of their employees or servants during the course of their employment. This principle is rooted in public policy, as it seeks to assign responsibility for the risks inherent in an employer-employee relationship to the business or organization. For this doctrine to apply, there must be a genuine master-servant or employer-employee relationship, and the employee’s tortious act must fall within the scope of their duties. In Automobiles Transport v. Dewalal, the Rajasthan High Court held that there is a presumption that a vehicle is operated by the driver under the employer’s authorization, and the burden of disproving this rests with the employer.
Maxim of Qui-Facit Per Alium Facit Per Se
The legal maxim Qui facit per alium facit per se (He who acts through another acts himself) is central to agency law and vicarious liability. It asserts that an employer is responsible for the actions of their employees, as if the employer were performing the act themselves. This maxim applies to any situation where a principal authorizes an agent to act on their behalf. The principal is legally accountable for the actions of the agent within the scope of their authority, unless the act is of a personal nature. In H.E. Nasser Abdulla Hussain v. Dy. City, the court affirmed this principle, holding that a master is responsible for the actions of their servant. Similarly, in Ballavdas
Agarwala v. Shri J. C. Chakravarty, the court confirmed that vicarious liability applies to the actions of employees within the scope of their duties. However, the Indian Income-tax Act, in cases like K.T.M.S. Mohd. v. Union of India, demonstrated exceptions to this general rule, suggesting that certain statutory codes may limit the application of this maxim.
Compensation by State
The term "tort" refers to a civil wrong or injury that does not stem from a contractual obligation but can be remedied through compensation or damages. According to Chambers Dictionary, "Tort is any wrong or injury not arising out of contract for which there is a remedy by compensation or damages." Essentially, a tort occurs when a legal duty, unrelated to a contract, is violated. A tort is a civil wrong for which the only legal remedy is damages. The violation of duties owed to the general public forms the basis for a tort, though not every civil mistake constitutes a tort.
Section 70 of the Indian Contract Act establishes that when a person lawfully performs an act or delivers something for another, and the recipient benefits from it, the recipient must compensate the person who rendered the service or restore the thing delivered. If the conditions of Section 70 are met, even the government may be required to compensate for work or services rendered by the state. This section is based on the principles of quasi-contract or restitution rather than on an existing contract between the parties. It allows an individual who provides goods or services with the expectation of compensation, rather than as a gift, to claim remuneration from the party benefiting from the services or goods.
According to Article 299(1) of the Constitution, if an agreement with the government is found to be void, the party benefiting from it must restore the benefits or compensate the party from whom they were received. If, for example, a contractor receives a payment from the government for constructing a building, and the agreement is later deemed void due to non-compliance with Article 299(1), the government can recover the payment made to the contractor under Section 65 of the Indian Contract Act. Section 65 provides that if an agreement or contract is void, any person who has received an advantage under such a contract must return it or compensate the person from whom it was obtained.
When a public servant fails to perform their duties competently, obtaining compensation from them can be challenging. For the aggrieved person, the need for compensation may be more pressing than punishment. The State, therefore, must be held vicariously liable for the wrongful actions of its employees. For example, in Bhim Singh v. State of J&K, the petitioner, a Legislative Assembly member, was unlawfully arrested while traveling to attend a session in violation of his constitutional rights under Articles 21 and 22(2) of the Constitution. The court awarded the petitioner Rs. 50,000 as exemplary damages. In Lucknow Development Authority v. M.K. Gupta, the Supreme Court ruled that when public servants cause harm and injustice to citizens through malice or arbitrary acts during the discharge of their duties, the State must compensate the affected individual from public funds. The State can then recover the compensation amount from the negligent public servant.
Relevant Case Laws
The first judicial definition of State Liability in India was established under the East India Company in John Stuart, 1775. It was the first time that the Governor-General in Council was held
accountable in court for the dismissal of government servants, with no immunity from jurisdiction. In Moodaly v. The East India Company, the Privy Council expressed that the common law doctrine of sovereign immunity did not apply in India, reinforcing the principle that the government could be held accountable for wrongful actions.
Pre-Constitution Judicial Decisions
• Peninsular and Oriental Steam Navigation Company v. Secretary: This case established that the East India Company (or the State) is not liable for risks arising from actions performed as part of its sovereign functions. The ruling made a clear distinction between the sovereign and non-sovereign activities of the state.
• Secretary of State v. Hari Bhanji: The Madras High Court ruled that the State's immunity applies solely to its actions in its sovereign capacity. The decision clarified the limitations of this immunity, offering examples of situations where immunity could be invoked.
Post-Constitution Judicial Decisions
• State of Haryana v. Santra: The Court ruled that when the state’s actions are negligent, it loses the defense of sovereign immunity. The ruling emphasized that negligence in professional duties, where there is a clear obligation, does not permit the state to claim immunity under the guise of sovereign capacity.
• State of Rajasthan v. Vidyawati: This case focused on whether the state could be held liable for a tort committed by one of its employees. The Court concluded that the state is liable for the tortious acts of its employees if they act within the scope of their employment, similar to the liability of any other employer.
• Kasturi Lal v. State of UP: The decision in this case reaffirmed the principle that actions performed by state employees in the exercise of their sovereign powers do not create state liability. This case involved a situation where the employee's actions were deemed to fall within the scope of sovereign functions, thus excluding state liability.
• Kesoram Poddar v. Secretary of State for India: The Supreme Court decision in this case clarified that the state could claim immunity in tort cases when actions are conducted in the course of sovereign duties. The Court highlighted the necessity of distinguishing between sovereign and non-sovereign actions when determining liability.
• Union of India v. Harbans Singh: This case held that no damages could be recovered when a person was killed by a military driver’s reckless driving because it was an act performed under the state’s sovereign function. Similarly, in Secretary of State v. Cockcraft, the Court ruled that a claim for injuries caused by the reckless removal of rocks from a military road was not valid because the maintenance of the road fell within the state's sovereign duties.
Constitutional Provisions
• Article 294: This article ensures that all properties and assets that were previously under the dominion of the Government of India and the Governors of the provinces will now vest in the Union and respective State Governments. Additionally, all rights, obligations, and liabilities arising from contracts made by the Government of the Dominion of India and the provincial governors will be transferred to the Union and corresponding State Governments.
• Article 298: This provision grants both the Union and the State the authority to engage in trade or business. For this purpose, they are empowered to acquire, dispose of, or hold property and enter into contracts as required.
• Article 299: Contracts made by the Union or State in exercise of their executive powers must be executed by the President of India or the Governor of a State. These contracts are made on behalf of the President or the Governor, and neither the President nor the Governor can be personally liable for such contracts. Additionally, individuals who execute these contracts on behalf of the President or Governor are not personally liable.
• Article 300: This article establishes that the Government of India and State Governments may be sued in accordance with provisions outlined by acts of Parliament or State legislatures, or by powers granted under the Constitution.
Self-Check Exercise-2
Q.1 As per Article 298 of the constitution, the union and state shall carry out any trade or business and for that purpose, it can acquire, dispose or hold any property and can enter into contract.
True/False
Q.2 Tort is any wrong or injury not arising out of contract for which there is a remedy by compensation or damages. True/False
11.5 Summary
A government contract is fundamentally similar to any ordinary contract, with the key difference being that the parties involved are the central or state government, i.e., the President of India and the Governor of the State. Such contracts must adhere to the requirements outlined in Article 299 of the Constitution of India and Section 10 of the Indian Contract Act, 1872. The judiciary plays a vital role in ensuring that these contracts are free from fraud and arbitrariness, exercising judicial review to maintain fairness in the contracting process.
In modern times, government contracts have gained significant importance. The state acts as a major source of wealth and, within a welfare state, its economic activities are expanding. The government increasingly assumes the role of distributing a wide array of benefits. As a result, the number of individuals with wealth, including new forms of property, has risen. These forms of
wealth—such as government contracts, licenses, and quotas—are often considered 'privileges,' although some may be viewed as having the nature of legal rights.
The issue of the contractual liability of the administration is a topic of great interest in India, especially as the government takes on the responsibilities of a welfare state. The state operates under the rule of law and cannot act in contravention of it. A key question that arises is whether an individual who has suffered harm or injury due to an act of the state is entitled to compensation or other remedies from the government. The primary objective is to regulate and structure the discretionary powers of the government, ensuring that the benefits it confers are exercised in a lawful and disciplined manner.
11.6 Glossary
• Arbitrary- not seeming to be based on any reason or plan and sometimes seeming unfair.
• Crown - the state as represented by a king or queen.
• Void - completely lacking something
11.7 Answers to self-check exercises
Self-Check Exercise-1
Q.1 True
Q.2 True
Self-Check Exercise-2
Q.1 True
Q.2 True
11.8 References/Suggested Readings
• http://www.legalservicesindia.com/article/2000/Liability-of-State-In-Contract-And-In-
Torts.html#:~:text=The%20first%20important%20case%20involving,Secretary%20of%20
State%20for%20India.&text=Hari%20Bhanji%2C%20In%20this%20case,civil%20Courts %20could%20entertain%20them.
• https://acadpubl.eu/hub/2018-120-5/2/179.pdf
• https://shodhganga.inflibnet.ac.in/bitstream/10603/126943/13/13_Unit%205.pdf
11.9 Terminal questions
Q1 Discuss the effect of valid contract with the government.
Q2 What compensation to be paid by government in case of non-adherence to the contract?
Q3 Discuss pre and post constitution judicial decision relating contracts and torts.
•
UNIT-12
LOKPAL AND LOKAYUKTA -AN INDIAN OMBUDSMAN
Structure
12 Introduction
12.1 Learning Objectives
12.2 Meaning
12.3 Origin, term, appointment, need of Lokpal and Lokayukta Self-Check Exercise-1
12.4 Lokpal and Lokayukta Amendment Act 2016, structure and jurisdiction Self-Check Exercise-2
12.5 Summary
12.6 Glossary
12.7 Answer to self-check exercises
12.8 References/Suggested Readings
12.9 Terminal questions
12.0 Introduction
Maladministration can be compared to a termite that gradually weakens the foundation of a nation. It obstructs the effective functioning of the administration. At the heart of this issue lies corruption, a significant challenge faced by our country. Although there are several anti-corruption bodies in India, many of these organizations lack true independence. The Central Bureau of Investigation (CBI) has even been described by the Supreme Court of India as a "caged parrot," serving as a mere tool for those in power.
A number of these agencies function only as advisory bodies, without the authority to take strong action against corruption, and their suggestions are seldom acted upon. There is also the issue of insufficient transparency and accountability within these bodies. Additionally, there is no separate and efficient system to oversee and hold these agencies accountable for their actions.
In this scenario, the establishment of the Lokpal and Lokayukta institutions marks a significant milestone in Indian governance. This development aims to provide a robust and effective mechanism to combat corruption at all levels of the government.
12.1 Learning Objectives
After studying this lesson, the learner will be able to
- Know the origin, history, term and appointment of Lokpal
- Know the Need of Lokayukta and Lokpal
- Know the Lokpal and Lokayukta amendment Act 2016
- Know the structure, jurisdiction, powers and limitations of Lokpal
Meaning
The term "Ombudsman" refers to an official designated to investigate complaints from individuals regarding poor administration, particularly by public authorities. Essentially, an Ombudsman acts as a grievance officer. This public officer's role is to look into complaints raised by citizens about the misconduct or inefficiency of public administration. In other words, when there are significant failures in how public institutions operate, citizens have the right to file complaints against the responsible authorities. The Ombudsman is typically a representative of Parliament.
The Lokpal and Lokayukta Act of 2013 led to the creation of the Lokpal at the national level and Lokayukta at the state level. These bodies are statutory, meaning they are established by law but do not carry constitutional recognition. Their functions are similar to that of an Ombudsman, as they investigate complaints related to corruption within public institutions and address other connected issues.
12.2 Origin, term, appointment, need of Lokpal and Lokayukta
The history of the Lokpal and Lokayukta has deep roots, with the concept not originating in India. The idea of an ombudsman began in Sweden in 1809 with the establishment of the first ombudsman institution. It gained more prominence in the 20th century, particularly after World War II, with countries like New Zealand and Norway adopting the system in 1962. This period marked the spread of the ombudsman institution to other parts of the world.
In 1967, Great Britain introduced the ombudsman institution following the recommendations of the Whyatt Report of 1961, making it the first major democratic country to adopt an anti-corruption body of this nature. Guyana became the first developing nation to establish the ombudsman system in 1966, followed by Mauritius, Singapore, Malaysia, and eventually India.
In India, Ashok Kumar Sen, the former law minister, was the first to propose the idea of a constitutional ombudsman in Parliament in the early 1960s. Later, Dr. L.M. Singhvi coined the terms "Lokpal" and "Lokayukta." In 1966, the First Administrative Reforms Commission recommended the establishment of two independent bodies at both the central and state levels to address complaints against public officials, including members of Parliament.
The Lokpal Bill was first introduced in Lok Sabha in 1968 but lapsed due to the dissolution of the House. Despite numerous attempts, the Bill failed to pass, with as many as eight unsuccessful efforts by 2011. In 2002, a commission led by M.N. Venkatachaliah was formed to review the Constitution, and it recommended the creation of the Lokpal and Lokayuktas, suggesting that the Prime Minister should be excluded from the scope of the Lokpal. In 2005, the Second Administrative Reforms Commission, chaired by Veerappa Moily, also called for the prompt establishment of the Lokpal.
Although these recommendations faced delays, in 2011, the government set up a Group of Ministers, led by then-President Pranab Mukherjee, to examine the proposal and devise solutions
for addressing corruption. Public pressure, particularly through the "India Against Corruption" movement led by Anna Hazare, led to widespread protests advocating for the establishment of the Lokpal system.
This public outcry resulted in the passing of the Lokpal and Lokayukta Bill in 2013. It was signed into law by the President on January 1, 2014, and came into effect on January 16, 2014, under the name "The Lokpal and Lokayukta Act 2013."
Commission and Movements which Recommended for Establisment of Lokpal and
Lokayuktas
• In 1966, the First Administrative Reforms Commission, led by Morarji Desai, recommended the creation of two independent bodies—one at the central level and one at the state level—to investigate complaints against public officials, including members of Parliament.
• In 2002, the Commission to Review the Working of the Constitution, under the leadership of Shri M.N. Venkatachaliah, recommended that the Prime Minister be excluded from the jurisdiction of these authorities.
• In 2005, the Second Administrative Reforms Commission, chaired by Shri Veerappa Moily, urged the immediate establishment of the Lokpal office.
• In 2011, the prominent "Anna Hazare Movement" for the creation of Lokpal was initiated, gaining widespread attention.
Term and appointment to the office of Lokpal
The Chairman and members of the Lokpal serve a term of five years or until they reach the age of 70, whichever comes first. They are appointed by the President of India based on the recommendations of a selection committee.
The selection committee is made up of the following members: • The Prime Minister of India
• The Speaker of the Lok Sabha
• The Leader of the Opposition in the Lok Sabha
• The Chief Justice of India or a judge nominated by the Chief Justice
• An eminent jurist
The Prime Minister serves as the Chairperson of the selection committee. A search panel, consisting of at least eight individuals, is formed by the selection committee to carry out the process of selecting the Chairperson and members of the Lokpal.
Lokpal search committee
According to the Lokpal Act of 2013, the Department of Personnel and Training is responsible for compiling a list of candidates interested in becoming the chairperson or members of the Lokpal. This list is then submitted to the eight-member search committee, which shortlists candidates and forwards their names to the selection panel, chaired by the Prime Minister.
The selection panel has the authority to choose from the list provided by the search committee. In September 2018, the government formed a search committee led by former Supreme Court judge
Justice Ranjana Prakash Desai. The Lokpal and Lokayukta Act of 2013 also stipulates that all states must establish a Lokayukta office within one year of the Act’s implementation.
Salary and allowances
• The salary, allowances, and working conditions of the Chairperson are on par with those of the Chief Justice of India.
• The salary, allowances, and working conditions of the members are comparable to those of a Supreme Court Judge.
Lokayuktas in State
• • States are required to establish Lokayuktas.
• Purpose: To address allegations made against state officials.
• Jurisdiction of Lokayuktas: Covers all state government employees, including those in religious organizations, as well as the governor, ministers, and members of the legislative assembly (MLAs).
• Prior to the enactment of the Lokpal and Lokayukta Act of 2013, most states had already set up Lokayuktas as statutory bodies with fixed terms.
• The public can directly approach the Lokayukta with complaints of corruption, favoritism, or any other form of administrative misconduct.
• Note: Following the revocation of Jammu and Kashmir's special status and statehood on August 5, 2019, the Government of India disbanded eight state commissions, including the J&K Accountability Commission.
• States were obligated to appoint a Lokayukta within a year of the Lokpal Act’s implementation, but so far, only 16 states have established Lokayuktas.
Branches of Lokpal
• The Lokpal will operate through two main branches to fulfill its functions.
• Administrative Branch: This branch will be headed by a Secretary to the Government of India and will consist of various departments.
• The inquiry and investigation branch will be led by an officer with a rank no lower than Additional Secretary to the Government of India. The prosecution wing will also be overseen by an officer holding the rank of Additional Secretary.
• Judicial Branch: This branch will be headed by a judge of suitable rank to assist the Lokpal in carrying out its judicial responsibilities.
Need of Lokpal and Lokayuktas
• Maladministration: This gradually weakens the foundation of a nation, much like termites,
and hampers the effective functioning of the administration. Corruption is the root cause of this problem.
• Lack of Independence in Organizations: Many anti-corruption bodies hardly function with true independence. The Supreme Court has even described the CBI as "a caged parrot" and "its master's voice."
• Advisory Role: Many such bodies merely provide recommendations, without real authority, and their advice is seldom implemented.
• Issues with Accountability and Transparency: There is a lack of internal accountability and transparency in these institutions, and no effective mechanism exists to hold them accountable.
• Combating Corruption: The establishment of the independent Lokpal and Lokayukta institutions marked a turning point in Indian political history, offering a solution to the persistent issue of corruption.
Self-Check Exercise-1
Q .1 The Supreme Court has referred to the CBI as "its master's voice" and a "caged parrot." True/False
Q .2 The Chairperson's salary, allowances, and other working conditions are similar to those of the Chief Justice of a state. True/False
12.3 Lokpal and Lokayukta Amendment Act, 2016
Following the enactment of the Lokpal and Lokayukta Act in 2013, Parliament passed an amendment to the Act in July 2016. This amendment allowed the leader of the largest opposition party in the Lok Sabha to join the selection committee when there was no officially recognized Leader of the Opposition.
The amendment also made changes to Section 44 of the original Act, which focused on the requirement for public servants to declare their assets and liabilities within 30 days of joining government service. The revision removed the 30-day time frame and instead stipulated that public
servants must disclose their assets and liabilities according to the format and procedure set by the government.
Additionally, the bill introduced a provision that required trustees and board members of nongovernmental organizations receiving more than Rs. 1 crore in government funding or over Rs. 10 lakh in foreign donations to disclose their assets to the Lokpal. The bill also extended the deadline for trustees and board members to declare their assets, including those of their spouses.
Structure of the Lokpal
The Lokpal is structured as a multi-member body, comprising one chairperson and a maximum of eight members.
To be eligible for the position of chairperson, the individual must be one of the following:
1. A former Chief Justice of India;
2. A former Judge of the Supreme Court; or
3. A distinguished person with exceptional integrity and expertise, who has at least 25 years of experience in areas such as:
o Anti-corruption policies,
o Public administration,
o Vigilance,
o Finance (including insurance and banking), o Law and management.
The total number of members cannot exceed eight. The composition of the members must be as follows: • At least half of the members must be judicial. • At least 50% of the members should represent SC/ST/OBC communities, minorities, and women.
The judicial members of the Lokpal must be: • A former Judge of the Supreme Court; or • A former Chief Justice of a High Court.
Non-judicial members must be distinguished individuals with impeccable integrity and exceptional ability. They must have at least 25 years of experience in areas such as: • Anti-corruption policies,
• Public administration, • Vigilance, • Finance (including insurance and banking), • Law and management.
Jurisdiction and powers of Lokpal
The Lokpal’s jurisdiction covers:
• The Prime Minister and Ministers,
• Members of Parliament,
• Officers in Groups A, B, C, and D,
• Officials of the Central Government.
However, the Lokpal's jurisdiction over the Prime Minister is limited in cases involving allegations of corruption related to:
• International relations,
• National security,
• Public order,
• Atomic energy and space.
The jurisdiction of the Lokpal does not extend to ministers or members of Parliament regarding:
• Speeches made in Parliament, or
• Votes cast in Parliament.
Additionally, the Lokpal’s jurisdiction includes:
• Individuals in charge of bodies or societies established by Central Government legislation,
• Societies or organizations funded or controlled by the Central Government,
• Individuals involved in abetting, giving or receiving bribes.
Under the Lokpal and Lokayukta Act, all public officials must declare their assets, liabilities, and those of their dependents. The Lokpal also has supervisory authority over the CBI and can issue directions to the agency. When a case is referred to the CBI by the Lokpal, the investigating officer cannot be transferred without the Lokpal's prior approval. The Inquiry Wing of the Lokpal is vested with civil court powers.
Furthermore, the Lokpal has the authority to seize assets, proceeds, and benefits gained through corrupt means under specific circumstances. It can also recommend the suspension or transfer of public servants involved in corruption-related matters. The Lokpal has the power to direct actions to prevent the destruction of evidence during preliminary inquiries.
Limitations
The establishment of the Lokpal was a crucial step in the fight against corruption, serving as a tool to tackle the widespread corruption within India's administrative framework. However, there are several shortcomings that need attention. One major issue is that the committee responsible for appointing the Lokpal includes members from political parties, which exposes the process to political influence.
There are no clear criteria for determining who qualifies as an "eminent jurist" or a "person of integrity," which can lead to manipulation in the appointment process. Furthermore, the Lokpal and Lokayukta Act of 2013 does not offer sufficient protection to whistleblowers. The provision allowing inquiries to be initiated against complainants if the accused is found innocent can deter people from filing complaints. Another significant gap is the exclusion of the judiciary from the jurisdiction of the Lokpal.
Additionally, the Lokpal lacks constitutional backing, and there are no sufficient provisions for appealing its decisions. States also have the discretion to determine specific details regarding the appointment of the Lokayukta. Although the Lokpal and Lokayukta Act has made some progress in
ensuring the independence of the CBI, particularly through changes in the selection process for the CBI Director, there is still room for improvement.
The Act also imposes a seven-year limit for filing complaints related to corruption, which restricts the time frame for bringing allegations against public officials.
Prime Minister under Lokpal
Under the Lokpal and Lokayukta Act of 2013, the Prime Minister is generally within the jurisdiction of the Lokpal. However, the Lokpal is not authorized to investigate allegations involving matters such as international relations, national security, public order, atomic energy, or space. Additionally, investigations into the Prime Minister can only proceed under specific conditions:
The full bench of the Lokpal, which includes the Chairperson and all Members, must agree to initiate the investigation.
A minimum of two-thirds of the members must approve the investigation.
Any investigation involving the Prime Minister must be conducted in secrecy, with records kept confidential. If the Lokpal determines the allegation is unfounded, the investigation will be terminated, and no details will be made public.
WHAT SHOULD BE DONE?
• To effectively tackle corruption, the institution of the ombudsman must be reinforced, ensuring both functional independence and adequate staffing.
• There must be greater transparency, improved access to information, and stronger empowerment of citizens and civic groups, alongside responsible leadership that is committed to public accountability.
• Simply appointing a Lokpal is not enough. The government must address the root causes that prompted the demand for a Lokpal in the first place. Expanding the government by enhancing investigative bodies will increase its size, but it may not necessarily lead to better governance.
• The government should genuinely adhere to the principle of "less government, more governance" in both letter and spirit.
• Moreover, the Lokpal and Lokayukta should be financially, administratively, and legally independent from the entities they are responsible for investigating and prosecuting.
• The appointment process for the Lokpal and Lokayukta must be transparent to ensure that capable and trustworthy individuals are chosen.
• To prevent excessive concentration of power in a single institution, it is important to have a variety of decentralized institutions with appropriate checks and balances.
Specific steps to be taken to reduce the corruption
1. The enforcement of laws should be reevaluated to improve effectiveness, and citizens' understanding of these laws must be enhanced to ensure transparency.
2. Broader societal issues like moral decline and the rise in consumerism should be addressed as part of a comprehensive approach.
3. For sectors involving large public enterprises, complex delivery systems, advanced technology, and foreign investment, market forces should be accompanied by effective regulatory frameworks.
4. A decentralized approach to monitoring and vigilance should be established to increase accountability.
5. Efforts should be made to prevent any shortages in essential services.
6. Priority should be given to areas impacting society's most vulnerable groups. Citizen-centric services should be prioritized, and the use of outsourcing should be supported. Education, healthcare, and other service delivery systems must be re-engineered for better efficiency.
7. Ministries dealing with high-risk areas should have internal review procedures in place to ensure continuous improvement.
8. Public access to village records should be ensured for transparency and accountability.
9. The primary responsibility of department heads should be internal oversight and ensuring proper functioning within their teams.
10. Instead of concentrating on financial audits, a focus on auditing transactions and processes should take precedence.
11. Auditors currently lack accountability. The entire structure of the Comptroller and Auditor General (CAG) needs to be thoroughly reformed to ensure better governance and accountability.
Measures to make anti-corruption institutions be more effective
12. State Vigilance Commissions or Lokayuktas should be empowered to oversee the prosecution of corruption-related cases.
13. Investigative agencies need to enhance their expertise by fostering a multidisciplinary approach and ensuring they are knowledgeable about the functioning of various government departments. This should include representatives from multiple departments.
14. The use of advanced investigative methods, such as electronic surveillance, audio and video recordings during surprise inspections, and the execution of traps, searches, and seizures, should be implemented.
15. Investigative bodies should be assigned specific time limits within which to complete investigations for different types of cases.
16. Efforts should be made to continually increase the number of corruption cases that are detected and investigated, with a focus on high-profile corruption cases.
17. Corruption cases should be handled by a team of lawyers selected by the Attorney General or Advocate General, in coordination with the Lokpal or Lokayukta, as appropriate.
18. Anti-corruption agencies should conduct regular assessments of government departments, focusing on those with a high risk of corruption, to gather intelligence and identify officers who may lack integrity.
19. The Lokpal should be granted adequate authority to effectively manage and resolve corruption cases.
Citizens’ initiatives:
A. Citizens' Charters should be strengthened by setting clear service standards and outlining the consequences for failing to meet them.
B. Citizens should be encouraged to participate in monitoring and maintaining ethical standards within government offices and institutions.
C. Incentive programs should be introduced to motivate citizen involvement and active participation in governance.
D. Educational programs in schools should focus on raising awareness about ethics and corruption prevention.
Role of media:
A. Norms and practises must be developed that require proper media screening of all allegations/complaints and action to put them in the public domain.
B. In order to adhere to a Code of Conduct as a safeguard against malafide action, the electronic media should develop a Code of Conduct and a self-regulating mechanism.
C. By regularly disclosing details about corruption cases, government agencies can aid the media in the fight against corruption.
Social audit:
All developmental schemes and citizen-centric programmes should include a social audit mechanism in their operational guidelines.
Using Information Technology:
1. Each government ministry, department, or organisation should develop a plan for using technology to improve governance. Use of Information Technology should be made only after existing procedures have been thoroughly re-engineered in any government process.
2. Offices with a lot of public interaction should have a complaint tracking system online. If at all possible, the task of tracking complaints should be outsourced.
3. In offices with a lot of public interaction, there should be an external, periodic mechanism for 'auditing' complaints.
Self-Check Exercise-2
Q.1 According to the Lokpal and Lokayukta Act 2013, the PM is subject to Lokpal's jurisdiction, but if the allegation of corruption is related to international relations, external and internal security, public order, atomic energy, or space, Lokpal will not investigate the PM. True/False
Q.2 The Lokpal and Lokayukta Act states that all public officials need to furnish their assets and liabilities as well as their respective dependents. True/False
12.4 Summary
To effectively address corruption, the ombudsman institution must be enhanced in terms of both its operational independence and the availability of adequate resources. Simply appointing a Lokpal is not a sufficient solution. The government must address the root causes that have led to public demand for the establishment of a Lokpal. Expanding investigative agencies may increase government size, but it won't necessarily result in better governance. The government's principle of "less government, more governance" should be adhered to in both intent and execution.
Additionally, the Lokpal and Lokayukta must operate independently in financial, administrative, and legal matters from the entities they investigate and prosecute. The selection process for Lokpal and Lokayukta should be transparent to prevent the appointment of unsuitable candidates. It is also important to establish multiple decentralized institutions with robust accountability systems to prevent the concentration of excessive power within a single entity.
12.5 Glossary
• Decentralization- the transfer of control of an activity or organization to several local offices or authorities rather than one single one.
• Prosecution - the process of officially charging somebody with a crime and of trying to show that he/she is guilty, in a court of law.
• Whistleblowers - a person who informs on someone engaged in illegal activities
12.6 Answers to self-check exercisesSelf-Check Exercise-1
Q.1 True
Q.2 False
Self-Check Exercise-2
Q.1 True
Q.2 True
12.7 References/Suggested Readings
12.7 Terminal questions
Q1 Discuss the effect need of Lokpal and Lokayuktas in the states.
Q2 bring out the features of Lokpal and Lokayukta Amendment Act 2016.
Q3 Discuss the measures needed to be taken to reduce corruption and to make Lokpal. and lokayuktas effective.
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