Introduction (CN).pdf

Module 1: Introduction Introduction to 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 admi...

Module 1: Introduction Introduction to 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. 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 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. Evolution of Administrative Law Administrative Law in ancient India  The Rule of Dharma  The basic Principles of Natural Justice Administrative Law under the British Rule in India Many Acts were passed by the British Government for regulating health, morality, transport and labor relations etc. Ex:  The State Carriage Act, 1861 to grant administrative license  The Bombay Port Trust Act,1879 to establish first Public Corporation  The Northern India Canal and Drainage Act, 1873 and The Opium Act, 1878 accepted delegated legislation  The Indian Explosives Act,1884 to regulate the trade and traffic in explosives Administrative Law in 20th Century Social, economic policies of the government had significant impact on private rights of citizens, e.g. planning, employment, education, health, housing, service, pension, manufacture of goods, etc. It resulted in increase in delegated legislation and thus AL became a live subject. During World War – II The Defense India Act 1939 and its rules conferred ample powers on the executive to interfere with life, liberty and property of an individual with no judicial control over them. Administrative Law after Independence The activities and functions of the government have further increased. Under the ID Act, 1947, the Minimum the Wages Act, 1948, and the Employment Insurance Act, 1948, important social security measures have been taken for those employed in industries. The philosophy of a welfare State has been specifically embodied in the Indian Constitution Even while interpreting all these Acts and the provisions of the constitution, the judiciary started taking into consideration the objects and ideals of social welfare. A welfare state is a concept of government where the state plays a key role in the protection and promotion of the economic and social well-being of its citizens. It is based on the principles of equality of opportunity, equitable distribution of wealth, and public responsibility for those unable to avail themselves of the minimal provisions for a good life. The general term may cover a variety of forms of economic and social organization. In the strictest sense, a welfare state is a government that provides for the welfare, or the well-being, of its citizens completely. Such a government is involved in citizens lives at every level. It provides for physical, material, and social needs rather than the people providing for their own. The purpose of the welfare state is to create economic equality or to assure equitable standards of living for all. The welfare state provides education, housing, sustenance, healthcare, pensions, unemployment insurance, sick leave or time off due to injury, supplemental income in some cases, and equal wages through price and wage controls. It also provides for public transportation, childcare, social amenities such as public parks and libraries, as well as many other goods and services. Some of these items are paid for via government insurance programs while others are paid for by taxes. The Directive Principles of State Policy is guidelines to the central and state governments of India, to be kept in mind while framing laws and policies. They are enumerated in part iv of the constitution of India. i.e. directive principles of state policy. They are the instruments of instructions in the governance of the country. The directive principles lay down certain economic & social policies to be pursued by the various governments in India. They are classified as social & economic charter, social security charter& community welfare charter. These provisions, contained in Part IV of the Constitution of India, are not enforceable by any court, but the principles laid down therein are considered fundamental in the governance of the country, making it the duty of the State to apply these principles in making laws to establish a just society in the country. The principles have been inspired by the Directive Principles given in the Constitution of Ireland and also by the principles of Gandhism; and relate to social justice, economic welfare, foreign policy, and legal and administrative matters. Case Law: Maneka Gandhi v. Union of India- The case involved the refusal by the government to grant a passport to the petitioner, which thus restrained her liberty to travel. In answering the question whether this denial could be sustained without a predecisional hearing, the court proceeded to explain the scope and content of the right to life and liberty. In a departure from the earlier view, the court asserted the doctrine of substantive due process as integral to the chapter on fundamental rights and emanating from a collective understanding of the scheme underlying articles 14 (the right to equality), 19 (the freedoms) and 21 (the right to life). The power the court has to strike down legislation was thus broadened to include critical examination of the substantive due process element in statutes. The activities and powers of the government The enforcement of rule of law and judicial review. Article 226 empowers the high courts to issue, to any person or authority, including the government (in appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them. Article 227 determines that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction (except a court formed under a law related to armed forces). The High Court, can, under Article 227 –  Call for returns from such courts,   Make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts.  Prescribe forms in which books, entries and accounts be kept by the officers of any such courts.  Settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts. Case Law: Surya Devi Rai vs. Ram Chander Rai- The Supreme Court relied on several constitutions Judgments of the Hon'ble Apex court, one of which was Umaji Keshao Meshram and Ors. vs. Smt. Radhikabai and Anr, which laid down scope, power and differences between Article 226 and Article 227. The first and foremost difference between the two articles is that Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915, excepting that the power of superintendence has been extended by this Article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. Article 32 is referred to as the ‘heart and soul of the constitution’ by Dr Bhim Rao Ambedkar, Article 32 is a fundamental right envisaged under Part III of the Constitution of India. It is a ‘right to constitutional remedies’ which provides a right to protect other fundamental rights from violation. In other words, if any fundamental right is violated by the government, then Article 32 empowers the person whose fundamental right has been violated to approach the Supreme Court for the enforcement of his/her fundamental rights. Case Law: Ramdas Athawale v. Union of India- It was held that Article 32 is applicable in cases where there is a question of enforcement of fundamental rights. If the question of enforcement of fundamental rights does not arise then Article 32 will not be applicable. Article 136 bestows the Supreme Court discretion to entertain appeals in suitable situations, not otherwise provided for in the Constitution. The SC may exercise this discretionary power to grant special leave to appeal any judgment or decree or may refuse to grant the leave since this is not a matter of right. An aggrieved party can approach the Supreme Court, for clarification of any constitutional or legal issue involved in any civil, criminal or other type cases, through Article 136. Thus, the nature of this power of the SC is of residuary nature and its definition is not limited. A study of the SLPs, however, shows that the SC grants leave only in case of exceptional situations and follows well-established judicial procedures in exercising the discretionary power. Special Leave Petition is a huge instrument of the dispensation of justice from the apex court in the country. However, SLP is a very fluid and flexible provision because of its inherent nature. Consequently, there are many leave petitions, which tend to choke the SC, but there are plenty which is rejected at the admissions stage also, which sort of keeps a balance. PIL- It has not been defined in any Indian statute. However, Courts have interpreted and defined PIL. Case Law: Janata Dal v. H.S.Chaudhary, [(AIR 1993 SC 892)]- The Hon’ble Supreme Court held that lexically, the expression ‘PIL’ means a legal action started in a court of law for the enforcement of public/general interest where the public or a particular class of the public some interest (including pecuniary interest) that affects their legal rights or liabilities. PILs are considered to be the most effective as well as the most commonly used judicial tool to safeguard the environment due to their many advantages including but not limited to speedy results, nominal court fees, relaxed procedural rules and the wide variety of investigative techniques available to courts like special committees. Definition of Administrative Law John Austin “Administrative law as one which determines the ends and modes to which the sovereign power shall be exercised. According to him sovereign power should be either exercised directly by the monarch or entrusted to subordinate political agents holding a position of trust.” Bernard Schawartz “Administrative law to be the law applicable to those administrative agencies which possess adjudicatory authority of a delegated legislation.” Sir Ivor Jennings “Administrative Law is the law relating to the administration. It determines the organization, powers and duties of the administrative authorities.” A.V. Dicey “Administrative Law relates to that portion of a nation’s legal system which determines the legal status and liabilities of all State officials.” Wade “Administrative Law is the law relating to the control of governmental power.” K.C. Davis “Administrative Law is the law concerning the powers and procedures of administrative agencies, including the law governing judicial review of administrative action.” Garner “Administrative Law may be described as those rules which are recognized by the courts as law and which relate to and regulate the administration of Government.” Sources of Administrative Law Major Sources 1. Constitution- Various administrative organs derive their powers and functions from the Constitution, such organs include the President, Ministers, local government authorities etc. 2. Statutes- Most of administrative organs are statutory formed. They derive their powers and functions from various statutory instruments. Some statutes confer legislative powers, quasi-judicial powers, powers to maintain law & order and good governance etc. All these powers have to be exercised lawfully within such limits set by the particular Act of the Parliament. In that sense statutes become one of the principal sources of administrative law. 3. Judicial decisions- Decisions by the Supreme Court in administrative disputes form one of the major bases of administrative law. Courts have always intervened in such cases where administrative organs have acted unlawfully to the extent of injuring or affecting individual rights. Using their inherent prerogative powers, courts have been a reliable place for a victim to run and get his respective remedy. (stare decisis - the legal principle of determining points in litigation according to precedent). 4. Ordinances, Notifications and Circulars- Ordinances are issued by the President (at Union / Federal level) and Governor (at State level) and are valid for a particular period of time. These ordinances give additional powers to administrators in order to meet urgent needs. Administrative directions, notifications and circulars provide additional powers by a higher authority to a lower authority. In some cases, they control the powers.  5. Other sources- These include the common law principles, doctrine of equity and such statutes of general application. Subsidiary Sources Books- By prominent jurists and opinions from prominent jurists. Thus, administrative law is based on the well-known legal maxim ‘ubi jus ibi remedium’ (wherever there is a right, there is a remedy). Nature of Administrative Law - The Doctrine of Separation of Powers - The three of branches of government - Rule of Law - Delegated legislation - Control over delegated legislation - The Administrative Law is functional - Administrative functions – preventive steps like law and order, licensing and rate fixing etc. - Administrative powers and quasi – judicial powers. - Execution of Laws, collection taxes, conducting elections are also administrative functions. - The labor problems such as strikes, lock-outs, etc. - The Administrative Tribunals and Industrial Tribunals do not require the rigid procedure of Evidence Act and Civil procedure. - The administrative authorities are empowered to make rules, orders, regulations et. subject to the permission by Parent Act and Constitution. - Writs. - Conflict of interests (Public rights v. Private rights) As observed by Lord Denning “Properly exercised, the new powers of the executive lead to the welfare State, but abused they lead to the Totalitarian State.” Scope of Administrative Law Administrative Law is a judge-made law. It includes administrative circulars, policy statements, memoranda and resolutions etc. AL is a branch of public law in contradistinction to private law. It primarily deals with the relationships of individuals with the organized power. AL deals with the organization and powers of administrative agencies and quasi-administrative agencies. AL includes the study of the existing principles and also the development of certain new principles which administrative agencies and quasi-administrative agencies must follow while exercising their powers in relation to individuals, i.e. the PNJ, reasonableness and fairness. AL primarily concerns itself with the official action which may be – - rule-making or quasi-legislative action - rule-decision or quasi-judicial action - rule-application or administrative action, or - ministerial action or pure administrative action One of the main thrusts of the study of AL is on the procedure by which the official action is reached. Such procedure may have laid down – - in the statue itself under which the administrative agency has been created  - in the separate procedure code which every administrative agency is bound to follow AL also includes within its study the control mechanism which the administrative agencies are kept within bounds and made effective in the service of the individuals. This control mechanism is technically called the “review process.” The administrative action may be controlled by – - courts exercising writ jurisdiction - courts exercising ordinary judicial powers through suits, injunctions, and declaratory actions - statutory authorities like Ombudsman, HRC and other investigative agencies - higher administrative authorities - public opinion and mass media in the 20th century is also an important control on any administrative actions - civil society and interest representations also play an important role in controlling the arbitrary exercise of public power both at pre-natal and post-natal stages - “Easy access to justice” also provides an effective check on bureaucratic adventurism in the exercise of public power. If the access to justice is easy and quick, it may deter administrative agencies from developing an attitude which has been termed as “fly-now-pay-later.” - Right to know, right to reply and discretion to disobey also have inherent potentialities of proving effective, though indirect, in providing a check on administrative behavior. The study of AL is not an end in itself but a means to an end. The focal point of the study of AL is reconciliation of power with liberty. Reasons for growth of Administrative Law - Radical change in the philosophy of role of the State - Increasing urbanization - To meet emergency situations - Inadequacy of Judicial System (Tribunals is an alternative mechanism) - Inadequacy of Legislative Process (Delegated legislation is an alternative remedy) - Scope for experimentation - Avoidance of technicalities - Preventive Mechanism As Freeman says, “inspection and grading of meat answers the consumer’s need more adequately than does a right to sue the seller after the consumer is injured.” - Administrative Authorities can take effective steps for the enforcement of preventive measures e.g. suspension, revocation and cancellation licenses, destruction of contaminated articles etc. Theories of Administrative Law Red Light Theory According to this theory the primary object of AL is to control governmental power. It is based on assumption that “every kind of power tends to corrupt and absolute power tends to corrupt absolutely.” It has emerged from a fear of State absolutism. State regulates and controls various activities of its subjects, there is a very possibility of misuse or abuse of power. RLT seeks to protect private rights and individual interests. Its objective is to keep government agencies and administrative authorities within the boundaries of law through judicial control. Green Light Theory This theory does not concede arbitrary, unrestricted, or absolute power to administrative authorities. But whereas the RLT favors judicial control, the GLT puts emphasis on the political process. Control of AAs under this theory is direct and internal rather than indirect and external. The inbuilt mechanism with in GLT allows interventions by the State in larger public interest issues ensuring rights of citizens and the well-being of society as a whole. This can be achieved through active involvement, positive deliberation, effective consultation, creative contribution, productive participation, decentralization of power, freedom of information and such other actions of the administration. Amber Light Theory Both the theories have their own merits and pitfalls. In most legal systems, therefore, there is a combination of two theories. In other words, the right path lies somewhere between the pure “Red” and “Green” light models, in an ALT. As observed by Huddlestone, a new relationship has emerged between courts and those who derive their authority from public law. It is a partnership based on a common goal, viz. fostering highest standards a public administration. Evolution of State Different stages: - Laissez-faire State - Social Welfare State - Modern State Laissez-faire State The concept of Laissez - Faire describes environment where transactions between private parties are free from State intervention, including restrictive regulations, taxes, tariffs and enforced monopolies. The literal translation of this French phrase is “let it be.” Social Welfare State A welfare state has to serve the larger public interest. It denotes a concept of government in which the State plays a key role in the protection and promotion of the economic and social well-being of its citizens. The doctrine of ‘parens patriae’ refers to the power of the State to act as a guardian for those who are unable to take care of themselves. Modern State Max Weber defines the modern state as - “A modern state is a system of administration and law which is modified by State and law and which guides the collective actions of the executive staff; the executive is regulated by statute likewise, and claims authority over members of the association (those who necessarily belong to the association by birth) but within a broader scope over all actively taking place in the territory over which it exercises domination.” The aim of a modern welfare state is to protect and promote the social and economic welfare of the people. Principles of equality of opportunity and equitable distribution of wealth, etc., are considered to be some of the most important roles of a government. Relationship between Administrative Law and Constitutional Law The Constitutional Law is always genus whereas Administrative law is a species of the Constitutional Law. The CL is the supreme and highest law of the Country. AL is subordinate to the CL. CL deals with various organs of the State. AL is deals with the organs of the State in motion(functional). CL deals with the structure of the State. AL deals with functions of the state. CL gives guidelines with regard to the general principles relating to organisation and powers of organs of the State and their relation b/w citizens and the State. AL deals with the powers and functions of administrative authorities. CL gives guidelines about the international relations. AL deals with the powers and functions of administrative authorities. CL deals with the general principles of the State pertaining to all branches. AL deals in details with the powers & functions of administrative authorities, including the civil services, public departments, local authorities and other statutory bodies exercising administrative powers, quasi- judicial powers etc. CL demarcates the constitutional status of Ministers and public servants. AL is concerned with the organisation of the services or the working of the various Govt. departments. CL imposes certain negative duties on administrators, viz., not to violate the FRs of the citizens and etc. It also imposes certain positive duties on administrators viz. implementation of social welfare schemes. The administrators have to follow CL first and next AL. The CL has complete control over the AL and administrators. The administrators should perform their functions with utmost obedience to CL. AL is just a subordinate to CL. The CL gives the power of Supreme Legislation to the Parliament. The AL gives the power of the sub-ordinate legislation to the Executive, which is too under the control of the Parliament. Rule of Law It was discussed by ancient Greek philosophers such as Plato and Aristotle around 350 BC. Plato wrote, “where the law is subject to some other authority and has none of its own, the collapse of the state, in my view. Is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.” Aristotle also endorsed the concept of Rule of law by writing that “law should govern and those who are in power should be servants of the laws.” The term “Rule of Law” is derived from the French phrase ‘la principe de legalite’ (the principle of legality) which refers to a government based on principles of law and not of men. In this sense the concept of ‘la principe de legalite’ was opposed to arbitrary powers. Meaning of Rule of Law According to Oxford Advance Learner’s Dictionary, “Rule of law means the situation in which all the citizens as well as the state are ruled by the law.” According to Black’s Law Dictionary, “Rule of law” means legal principles of day to day application, approved by the governing bodies or authorities and expressed in the form of logical proposition.” Sir Edward Coke- the Chief Justice in James, I’s reign was the originator of this concept. In a battle against the King, he maintained successfully that, “the King should be under God and the Law, and he established the supremacy of the law.” A.V. Dicey– Three Principles of Rule of Law - Supremacy of Law - Equality before Law - Predominance of Legal spirit 1. Supremacy of Law a) Supremacy of Law is the central and most important feature of Common Law. b) Law is the absolute supreme and predominant as opposed to influence of arbitrary power or discretionary power. c) English men are ruled by the Rule of Law and Law alone. d) A man can be punished by the Rule of Law and by nothing else. e) Wade says the rule of law requires that the Government should be subject to the law, rather than the law subject to the Government. 2. Equality before Law a) There must be equality before law or equal subjection of all classes to the ordinary law. b) There is no need for extraordinary tribunals or special courts to deal with cases of Government and its servants. c) Dicey accepted that administrative authorities are exercising ‘judicial’ functions though they are not ‘courts’. 3. Predominance of Legal spirit a) Rights are the result of judicial decisions in England. b) The rights are result of court judgments rather than from being enshrined in the Constitution. c) The Constitution is a consequence of the rights of the individuals. d) The Courts are the guarantors of the liberty. e) Rights would be secured more adequately if they were enforceable in courts rather than just being written in the Constitutional document. f) Mere incorporation in a written constitution is of no use in the absence of effective remedies of protection and enforcement. Advantages: - It helped to make administrative authorities confine to their limits. - It became a yard stick to test administrative actions. - It helped for the recognition and the growth of the concept of administrative law. Disadvantages (Criticism): - Dicey thesis was not completely accepted even in his era. - Even at this time, there was a long list of statutes which permitted the exercise of discretionary powers of the Crown which could not be called to the court. - Dicey instead of not just disallowing arbitrary power has also insisted that administrative authorities should not be given discretionary powers. - Dicey failed to distinguish between ‘arbitrary powers’ to ‘discretionary powers’. - He misunderstood the real nature of ‘droit administratif’ which was successful in France. Rule of Law under the Indian Constitution - Preamble - Article 13- Any law is found in violation of any provision of the Constitution is declared as invalid. - Article 13(1)- All laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provision of Part-III, shall, to the extent of such inconsistency, be void. - Article 13(2)- State shall not make any law which takes away or abridges the fundamental rights and any law made in contravention of this clause, shall, to the extent of the contravention, be void. - Article 14- Equality before law” implies the absence of any special privilege in favour of any individual. It ensures that all are equal before the law. “Equal protection of law” implies equal protection of all alike. In the same situation and under like circumstances. - Article 14 forbids class legislation but it doesn’t forbid classification which rests upon reasonable grounds of distinction. Exceptions: - Article 361 - the President or the Governor of a State shall not be answerable to any court for the exercise and performance of duties of his office. - Art 361(2) – “no criminal proceedings shall be instituted or continued against the President or the Governor of any court during his term of office.” - Article 361(3)- “no process for the arrest or imprisonment of the President or the Governor of a State shall issue any Court during term of his office.” - Article 361(4) – “no civil proceedings in which the relief is claimed against the President or of a State Governor, shall be instituted during his term of office.” - Foreign diplomats are also allowed immunity from the jurisdiction of the courts. - Art.121-The Judges have also been allowed some special privileges and protection. - Art.19- It will be valid only if the following conditions are fulfilled- a) Restrictions have been imposed by the State as defined in Article 12 b) Restrictions have been imposed by a law and the law is a valid law. The Executive cannot impose the restriction without there being a law authorizing it to do so. c) Restrictions must be on any of the grounds mentioned in clauses (2) to (6) of Art.19. d) Restrictions must be reasonable. - Article 20- Art.21(1) “no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the offence. - Article 20(2)- “no person shall be prosecuted and punished for the same offence more than once.” - Article 20(3)- “no person accused of the offence shall be compelled to be witness against himself.” - Article 21- guarantees to all persons (citizens and non-citizens) the right to life and personal liberty. It provides that “no person shall be deprived of his life or personal liberty except according to the procedure established by law.”- Maneka Gandhi v. Union of India (AIR 1978 SC 597) - Article 265 – “no tax shall be levied or collected except by authority of law.” - Article 300A - “no person shall be deprived of his property save by authority of law. A person cannot be deprived of his property merely by the executive order or executive direction.” (44th amendment, 1978) Case Law: Kesavananda Bharati v. State of Kerala (1973)- the Supreme Court enunciated the rule of law as one of the most important aspects of the doctrine of basic structure. Case Law: Maneka Gandhi v. Union of India (1978)- the Supreme Court declared that Art.14 strikes against arbitrariness. Case Law: Smt. Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299)- Art.329-A was inserted in the Constitution under 39th amendment, which provided certain immunities to the election of office of Prime Minister from judicial review. The SC declared Art.329-A as invalid since it abridges the Basic Structure of the Constitution. “The rule of law postulates the pervasiveness of the spirit of law throughout the whole range of government in the sense of excluding arbitrary official action in any sphere. It is an expression to give reality to something which is not readily expressible.” Case Law: A.D.M. Jabalpur v. Shivakant Shukla (AIR 1976 2 SCC 521) (popularly known as ‘Habeas Corpus’ case)- The question before SC was, whether there was any rule of law in India apart from Art.21 of the Constitution. The SC by majority held that there is no rule of law other than the Constitutional rule of law. Art.21 is our rule of law. If it is suspended, then there is no rule of law. Case Law: Bachan Singh v. State of Punjab (AIR 1980 SC 898) (Popularly known as ‘Death Penalty Case’)- “The rule of law permeates the entire fabric of the Constitution and indeed forms one of its basic features. The rule of law excludes arbitrariness, its postulate is ‘intelligence without passion’ and reason free from desire. Wherever we find arbitrariness or unreasonableness, there is denial of the rule of law.” Case Law: Lakshman Singh v. State of Bihar (Criminal Appeal No. 606 of 2021)- The SC held that democracy and free elections are a part of the basic structure of the Constitution. It is also further observed that the election is a mechanism which ultimately represents the will of the people. The essence of the electoral system should be to ensure freedom of voters to exercise their free choice. Therefore, any attempt of booth capturing and/or bogus voting should be dealt with iron hands because it ultimately affects the rule of law and democracy. Nobody can be permitted to dilute the right to free and fair election. Preservation and Enforcement of Rule of Law Article 141: The law declared by the Supreme Court shall be binding on all courts except Supreme Court (Art.137 review of judgment or order of the SC itself) within the territory of India. Article 142: The SC, in the exercise of its jurisdiction may pass such decrees or make such orders as is necessary for doing complete justice in any cause or matter pending before it. Any decree so passed or order so made shall be enforceable throughout the territory of India. Article 144: All authorities (civil or judicial) in the territory of India, shall act in aid of the SC. The authorities which do not comply with its direction, shall be liable for contempt of Court. Article 226 empowers the high courts to issue, to any person or authority, including the government (in appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them. Article 227 determines that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction (except a court formed under a law related to armed forces). The High Court, can, under Article 227 –  Call for returns from such courts,  Make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts.  Prescribe forms in which books, entries and accounts be kept by the officers of any such courts.  Settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts. Case Law: Surya Devi Rai vs. Ram Chander Rai- The Supreme Court relied on several constitutions Judgments of the Hon'ble Apex court, one of which was Umaji Keshao Meshram and Ors. vs. Smt. Radhikabai and Anr, which laid down scope, power and differences between Article 226 and Article 227. The first and foremost difference between the two articles is that Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915, excepting that the power of superintendence has been extended by this Article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. Article 32 is referred to as the ‘heart and soul of the constitution’ by Dr Bhim Rao Ambedkar, Article 32 is a fundamental right envisaged under Part III of the Constitution of India. It is a ‘right to constitutional remedies’ which provides a right to protect other fundamental rights from violation. In other words, if any fundamental right is violated by the government, then Article 32 empowers the person whose fundamental right has been violated to approach the Supreme Court for the enforcement of his/her fundamental rights. Case Law: Ramdas Athawale v. Union of India- It was held that Article 32 is applicable in cases where there is a question of enforcement of fundamental rights. If the question of enforcement of fundamental rights does not arise then Article 32 will not be applicable. Article 136 bestows the Supreme Court discretion to entertain appeals in suitable situations, not otherwise provided for in the Constitution. The SC may exercise this discretionary power to grant special leave to appeal any judgment or decree or may refuse to grant the leave since this is not a matter of right. An aggrieved party can approach the Supreme Court, for clarification of any constitutional or legal issue involved in any civil, criminal or other type cases, through Article 136. Thus, the nature of this power of the SC is of residuary nature and its definition is not limited. A study of the SLPs, however, shows that the SC grants leave only in case of exceptional situations and follows well-established judicial procedures in exercising the discretionary power. Special Leave Petition is a huge instrument of the dispensation of justice from the apex court in the country. However, SLP is a very fluid and flexible provision because of its inherent nature. Consequently, there are many leave petitions, which tend to choke the SC, but there are plenty which is rejected at the admissions stage also, which sort of keeps a balance. Doctrine of Separation of Powers The Doctrine of Separation of powers was originated by Aristotle and developed by John Locke (‘Second Treatises of Civil Government 1689), and Montesquieu (‘The Spirit of the Laws’ 1748). Montesquieu- Theory of Separation of Powers - The main object as stated by Montesquieu in the doctrine of separation of power is that ‘there should be government of law rather than having will and whims of the official’. Wade and Phillips- - The same persons should not form part of more than one of the organs of the governments, e.g., Ministers should not be responsible to the Parliament. - One organ of the government should not control or interfere with the exercise of its functions by another. - One organ of the government should not exercise the functions of another. Lord Acton- “Every power tends to corrupt and absolute power tends to corrupt absolutely.” If Legislature, Executive and Judiciary in one person- Monarch, Autocracy, Tyranny. (e.g. Louis XIV in France, Hitler, Saddam Hussein, Musharraf, Md. Gadhafi). Blackstone- “If legislative, executive and judicial functions were given to one man, there was an end of personal liberty.” Merits: - The Doctrine of Separation of Powers had tremendous impact on the development of administrative law and functioning of the governments. - Madison: “The accumulation of all powers, legislative, executive and judicial in the same hands, whether of one, a few or many and whether hereditary, self-appointed or elective may justly be pronounced the very of tyranny.” - The Constituent Assembly of France declared in 1789 that there would be nothing like a Constitution in the country where the DSP was not accepted. Defects: - There was no separation of powers under the British Constitution. At no point of time, this doctrine was adopted in England. - Donoughmore Committee: “In the British Constitution there is no such thing as the absolute separation of the legislative, executive and judicial powers.” - Prof. Ulman: “England was not the classic home of separation of powers.” - Woodrow Wilson: “The trouble with this theory is that Government is not a machine, but a living thing. No living thing can have its organs offset against each other as checks, and live.” - Justice Frankfurter: “Enforcement of a rigid conception of separation of powers would make modern Government impossible.” - The modern interpretation of the DSP means that discretion must be drawn between ‘essential’ and ‘incidental’ powers. 8. Fundamental object of the Montesquieu DSP was liberty and freedom of an individual, but that cannot be achieved by mechanical division of functions and powers. Importance: International Congress of Jurists held in New Delhi in 1959: “An independent judiciary is an indispensable requisite of free society under the Rule of Law. Such independence implies freedom from the executive or the Legislature with the experience of judicial function.” The most important aspect of the DSP is judicial independence from administrative discretion. Theory of Separation of Powers in U.S.A a) Article I – The legislative powers are vested in the Congress. b) Article II - The executive powers are vested in the President. c) Article III - The judicial powers are vested in the Judiciary. d) Jaffe and Nathanson: “The division of our Government into three great establishments is an indisputable fact – writ large and clear in the basic documents.” e) Jefferson: “The concentration of legislative, executive and judicial powers in the same hands is precisely the definition of despotic Government.” Theory of separation of powers in England As a matter of fact, at no point of time was this doctrine accepted in its strict sense in England. In reality the theory Integration of Powers has been adopted in England. Theory of Separation of powers in India Case Law: Ramjawaya Kapoor v. State of Punjab (AIR 1955 SC 549)- Facts: Nationalization of publication, printing and selling of textbooks by the Punjab government. Issues: i) Executive could not function without any law for that purpose ii) Violation of Article 19(1)(g) Held: Both contentions raised by the petitioners were rejected by the Court. Mukherjea J.: “The Indian Constitution has not indeed recognised the DSP in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.” Case Law: Golak Nath v. State of Punjab (AIR 1967 SC 1643)- Subba Rao J. observed: “The Constitution brings into existence different constitutional entities, namely, the Union, the States and the Unions Territories. It creates three major instruments of power, namely, the Legislature, the Executive and Judiciary. It demarcates their jurisdiction minutely and expects them to exercise respective powers without overstepping their limits. They should function within the spheres allotted to them. Case Law: I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861)- Facts: This case arose when The Gudalur Janmann Estates (Abolition and Conversion into Ryotwari), Act, 1969 (the Janman Act), that endowed forest lands in the Janman estates in the State of Tamil Nadu, which was struck down by the Supreme Court in Balmadies Plantations Ltd and Anr. v. State of Tamil Nadu (1972) 2 SCC 133) “as the same was not found to be a measure of agrarian reform protected under Article 31-A of the Constitution.” The Janman Act was inserted in the Ninth Schedule through Thirty-Fourth Amendment of the Constitution. Issue: Whether after 24.04.1973 during which the Basic Structure Doctrine was propounded in the landmark judgment of Keshavananda Bharti v. State of Kerala, can the Parliament make legislations immune by inserting them in the Ninth Schedule and thereby restraining it from the purview of judicial review under Article 31-B and, provided that, what would be its impact on court’s power for judicial review? Held: The SC held that the constitutional validity of the ninth schedule laws was to be judged by the direct impact and effect test, i.e., rights test, according to which it was not the form of the law rather the effect of such law which would act as the determinative factor and that It would be for the court to decide whether such interference was justified and whether it amounted to violation of basic structure doctrine. Case Law: Supreme Court v. Union of India {W.P No (Civil)- 13 of 2015}(NJAC Case)- After that 99th constitutional amendment was introduced in the Parliament by which the National Judicial Appointments Commission (NJAC) was all set to remove the collegium system for appointment of judges in higher courts. A new Articles 124(A), 124(B) and 124(C) was added to the constitution. It comprised of CJI, two other senior most judges of SC, the Union Minister of Law and Justice and two eminent persons (nominated by a committee consisting of the CJI, Prime Minister of India, and leader of opposition in Lok Sabha and in case there is no leader of opposition then the leader of single largest party in Lok Sabha). Issues: Parliament enacted the NJAC Act, which also received the assent from the President 31.12.2014. The same was also brought into force, with effect from 13.04.2015. The above amendment was challenged through several petitions which were collectively heard. 1) The first and foremost issue is how the judges of the higher courts i.e. the High Court and the Supreme Court should be selected? 2) Whether the 99th amendment is ultra vires of the constitution as it obliterate the basic structure of the constitution? 3) Whether judicial review in this case is correct? Held: This verdict is not only about the appointment of the judges by the judges, but the independence of the Indian judiciary. A five-member constitutional bench of the Supreme Court with ratio of 4:1 gave a landmark judgment which declared the 99th amendment unconstitutional and rendered National Judicial Appointments Committee nugatory. Droit Administratif Meaning “Droit Administratif” can be defined as a body of rules which determine the organisation and the duties of public administration which regulate the relations of the administration with citizens of the State. This is a French legal system, known as Droit Administratif, there are two types of laws and two sets of courts independent each other. Whereas ordinary courts administer ordinary civil law between subjects and subjects, and administrative courts administer the between the subject and the State. An administrative authority or official is not subject to the jurisdiction of ordinary civil courts exercising powers under the civil law in disputes b/w private individuals. All claims and disputes in which theses authorities or officials are parties fall outside the scope of the jurisdiction of ordinary civil courts and they are dealt with and decided by special tribunals. It was regularly put into practice by Napoleon in the 18th century. Three rules 1. Rules dealing with administrative authorities and officials: These relate to appointment, dismissal, status, salary and duties etc. 2. Rules dealing with the operation of public services to meet the needs of citizens: These services may be operated either wholly by public officials or under their supervision or they may assist private agencies to provide public utility services. 3. Rules dealing with administrative adjudication: If injury is done to a private citizen by the administration, the matter would be decided by the administrative courts. “Conseil d’Etat” is the highest administrative Court in France. Classification of Administrative functions 1. Legislative functions: rules, regulations, bye-laws etc. Scwartz: “If particular function is termed ‘legislative’ or rule-making’ rather than ‘judicial’ or ‘adjudication’, it may have substantial effects upon the parties concerned. If the function is treated as legislative in nature, there is no right to a notice and hearing unless a statute expressly requires them.” e.g. o Fixation of price o Declaration of a place to be market yard o Imposition of tax o Establishment of Municipal Corporation under the statutory provision o Extension of limits of a town area committee etc. are held to be legislative functions. 2. Quasi – Judicial functions: The word ‘Quasi’ means ‘not exactly’. An authority is described as ‘quasi-judicial’ when it has some of the attributes or trappings of judicial functions, but not all. A quasi –judicial decision is nearer the administrative decision in terms of its discretionary element and nearer the judicial decision in terms procedure and objectivity of its end-product. e.g. o Disciplinary proceedings against students. o Dismissal of an employee on the ground of misconduct. o Confiscation goods. o Cancellation of examinations. o Determination of citizenship o Cancellation, suspension, revocation of licence etc. 3. Administrative functions: Case Law: Ramjawaya Kapoor v. State of Punjab (AIR 1955 SC 549)- Mukhrjea J, CJ: “It may not be possible to frame an exhaustive definition of what executive functions means and implies. Ordinarily, the executive powers connote the residue of governmental functions that remain after legislature and judicial functions are taken away.” e.g. o An order of preventive detention. o An order of acquisition or requisition of property. o An order setting up a commission if inquiry. o An order granting sanction to prosecute a public servant. o Appointment of Arbitrator by Chief Justice or his nominee etc. Distinction b/w Legislative & Judicial functions Legislative Functions- 1. Law-making is the legislative function. 2. The Parliament and State Legislative Assembly make the laws. 3. Laws are the result of legislative function and are applicable to all. 4. Legislation is a new source of law. 5. It allows division of labour. Therefore, it increases efficiency. 6. Delegation and sub-delegation are found only in legislative functions. 7. Anticipation is the advantages of legislation. It foresees the consequences of certain and systematic. 8. Legislation is made for future. However, in rare cases, laws can be made enforceable with retrospective dates. It creates new rights and liabilities. 9. Legislative function is complete, certain and systematic. 10. It creates new rights and liabilities Judicial functions- 1. Interpretation is the judicial function. 2. The higher courts interpret such laws. 3. Judgment is the result of judicial function and is applicable only to the parties concerned in majority cases. 4. Judicial function is also a source of law, but comes next to the legislation. 5. It interprets the minute’s points of man’s thoughts and applies them into the cases. 6. Judge-made law is the creation of judicial function. 7. Anticipation is quite inconsistent with judicial function. 8. Judiciary inquires past and present. 9. Judicial function differs from case to case. It goes into minute things, whereas legislative function goes into general ways. 10. It determines the existing rights and liabilities. It cannot create new rights Distinction b/w Administrative &Legislative functions Administrative Functions- 1. The executive has only delegated legislative powers. 2. The legislative power of executive is flexible. 3. It functions according to its present day needs. 4. The legislative order made by executive is supplement to the supreme legislation, but cannot supplant it. 5. If a legislation made by administrative is against the FRs and against the PNJ, such legislation can be quashed by Courts by writ of Certiorari. 6. Administrator has to give reasons for their decisions to the parties concerned and mainly to their superior officers. 7. All administrative action need not be published. 8. If an exemption is made in favour of an individual, it is administrative in nature. Legislative functions- 1. The Parliament is the supreme legislative power. 2. The legislative power of the Parliament is rigid. 3. It looks to future. 4. The legislative made by Parliament and State Legislatures always superior to the administrative legislation. 5. A legislation made by the Parliament cannot be interfered by Courts. The SC, in certain cases, is empowered to quash the provisions of the Acts, if such provisions are against the FRs. 6. The legislation need not give reasons. However, in every Act, the objects and reasons are explained. 7. All legislations shall necessarily, be published. 8. If an exemption is made in favour of class of people, it is legislative in nature. Distinction b/w Judicial & Quasi-judicial functions Judicial Functions- 1. As lis inter partes (a dispute b/w two parties) is an essential characteristic feature of judicial function. 2. The Rules of procedure i.e. Rules of Evidence, CPC, etc. are strictly followed. 3. The evidence shall be taken on oath. 4. The court fee, as per rules, is required to be paid. 5. The doctrines of precedents, stare decisis, etc. shall strictly be followed. 6. No man shall be judge in his own case. 7. The Court is the real forum of judicial proceedings. Quasi-judicial functions- 1. A lis inter partes is not an essential characteristic feature of quasi-judicial function. 2. The Rules of Evidence, CPC., CrPC., etc. are not strictly followed. 3. The evidence is not taken on oath. 4. The Court fee is not required to be paid. 5. These doctrines are not followed strictly. 6. Sometimes, it may be relaxed here. 7. It is only a trapping of a Court, but in reality, it is not a court. Distinction b/w Administrative & Quasi – judicial function Administrative Functions- 1. The decision of a administrative function may positively affect upon the person. 2. An administrative action cannot be challenged before the Court. 3. Administrative function decides the matter subjectively. 4. An ordinary administrative function does not require such duty to act judicially. 5. Purely administrative order does not require to give reasons. Quasi-judicial functions- 1. The decision of quasi-judicial function may adversely affect upon the person. 2. A quasi-judicial decision can be challenged before the superior court and can be rectified by the writ of Certiorari, Prohibition etc. 3. It decides matters objectively. 4. An administrative officer must have a duty to require such duty to act judicially then only it becomes quasi-judicial function. 5. A quasi-judicial decision should have reasons.