Political Science 3: State and Political Obligations PDF

KLE LAW ACADEMY BELAGAVI (Constituent Colleges: KLE Society’s Law College, Bengaluru, Gurusiddappa Kotambri Law College, Hubballi, S.A. Manvi Law College, Gadag, KLE Society’s B.V. Bellad Law College, Belagavi, KLE Law College, Chikodi, and KLE College of Law, Kalamboli, Navi Mumbai) STUDY MATERIAL for POLITICAL SCIENCE-3: STATE AND POLITICAL OBLIGATIONS Prepared as per the syllabus prescribed by Karnataka State Law University (KSLU), Hubballi Compiled by Dr. Chaitraprasad, Asst. Prof. KLE Society’s Law College, Bengaluru This study material is intended to be used as supplementary material to the online classes and recorded video lectures. It is prepared for the sole purpose of guiding the students in preparation for their examinations. Utmost care has been taken to ensure the accuracy of the content. However, it is stressed that this material is not meant to be used as a replacement for textbooks or commentaries on the subject. This is a compilation and the authors take no credit for the originality of the content. Acknowledgement, wherever due, has been provided. Study Material :3nd BALLB, Political Science-III- State and Political Obligations SUBJECT: POLITICAL SCIENCE-III Major – 03: STATE AND POLITICAL OBLIGATIONS COURSE OBJECTIVES: To bring Comprehensive knowledge on Political Obligation in the Students. The Course Carries exclusive knowledge in Statehood and its authority, which will help the Students to understand the Duties with their responsibilities towards the State and authorities. Also, they will be Learning the essentials of Equality and Justice in different aspects with subsequent ideas on ancient medieval and modern interpretations of Justice in the ambit of evolutionary understanding. SYLLABUS Unit-I ❖ Introduction Meaning, Nature and Characteristics, ❖ Kinds Kinds of Political Obligations, ❖ Obligation of Obligation of the State: Under Monarchy (Ancient and the State Medieval), ❖ Political Obligation according to Individualism, Socialism and Obligation Welfare State, Obligations of Individual Citizens and other members of the State. ❖ Unit-II ❖ Law Meaning Nature and Sources, Kinds-Law and Morality ❖ Delegated Meaning, Need and Growth, Advantages, Limitations and Legislation Safeguards. ❖ Liberty and Liberty-Meaning Importance and kinds, Equality- Meaning Equality Importance and Kinds, Relationship between Liberty and Equality ❖ Justice Meaning and Interpretations and Kinds, Ancient, Medieval and Modern Interpretations 2 Study Material :3nd BALLB, Political Science-III- State and Political Obligations Unit-II ❖ Approaches’ Individualism to Political i. Background, Statement, Merit and Limitations Obligation Utilitarianism i. Background, Statement, Merit and Limitations (Contributions of Jeremy Bentham and J S Mill) Idealism: Background, Statement, Merit and Limitations (Kant, Hegel and T H Green-a Brief Study) Unit-IV Meaning, Aspects, Sources and Kinds ❖ Power Power Vs Authority ❖ Authority Legitimization of Power ❖ Responsibility Limitations and Conditions (Max Weber’s Kinds of domination Relationship with Authority Kinds-Institutional and Professional Accountability (as an Adjunct of Responsibility) Meaning, Importance and Kinds Unit-V Obedience to law: A Legal Duty Need and importance ❖ Obedience to Law Why People Obey Law-Reasons Can State Use Force against ❖ Problem of its Citizens? :i. Arguments, Limitations and Conditions. Punishment ❖ Disobedience Kinds of Punishments; Theories of Punishments: Meaning to Law Features, Limitations Civil disobedience to be Contrasted with revolution. Civil Disobedience movement; with reference to Gandhiji’s Sathya, Ahimsa and Sathyagraha Influence of David Thoreau. Neo-Gandhian Movements: Martin Luther King (Sr) and Nelson Mandela 3 Study Material :3nd BALLB, Political Science-III- State and Political Obligations UNIT- I POLITICAL OBLIGATION SYNOPSIS Meaning, Nature, Characteristics Kinds of Political obligation Obligation of the State Political Obligation POLITICAL OBLIGATION INTRODUCTION The moral obligation to obey the law, or as it is generally called, political obligation, is a moral requirement to obey the laws of one’s country. Traditionally, this has been viewed as a requirement of a certain kind, to obey the law because it is the law, as opposed to the content of particular laws. This conception of the “content independence” of obligations dates back at least to the time of Thomas Hobbes: “Command is where a man saith, Doe this or Doe not this, without expecting other reason than the Will of him that says it”. In characterizing this as a moral requirement, theorists distinguish political obligation from legal obligation. All legal systems demand obedience from those subject to them. Questions of political obligation concern the state’s justification for doing so. Unless citizens have moral requirements to obey the law, the state may be able to compel obedience but is acting unjustly and impinging on their freedom in doing so. Political obligations are also generally distinguished from what we may call prudential obligations. As H. L. A. Hart argues, if a gunman holds you up, you may be obliged to turn over your money, as the consequences of not obeying could be dire. In contrast, when the state demands that you pay your taxes, you may again be obliged to pay. But if you have political as well as prudential obligations, there is a sound moral basis for the state’s command. In other words, it is right that you comply. On this traditional view, the relationship between the state and the individual is expressed in terms 4 Study Material :3nd BALLB, Political Science-III- State and Political Obligations of “authority.” If the state possesses authority, then individuals have moral requirements to obey its commands, and the state has “claim rights” to their obedience. In recent years, political obligations have generally been conceptualized in a particular way, as applications of familiar moral principles. For instance, as commonly understood, an obligation of gratitude is generated by receipt of benefits from a benefactor, if certain other conditions are met. A gratitude theory of obligation results from taking a general principle of gratitude and applying it to the state, which, on this view, is interpreted as conferring significant benefits on citizens. Citizens have duties to make appropriate returns for benefits received, which they fulfil by obeying the law. MEANING: ❖ The term ‘obligation’ originates from a Latin word ‘obligate’ which implies performance of an enjoyed duty. Society calls upon the individuals to follow certain do’s and don’ts. These are obligations, or duties. For instance, payments of tax are a duty, and so also refraining from committing theft is another form of duty. ❖ Obligation is something that binds men to an engagement or performing what is enjoyed. It is the duty of a men to fulfil or discharge a duty enjoyed on him by his rational understanding. In legal sense an obligation is the vinculum juris or bond of legal necessity, which binds together two or more determinate individuals. Example the duty to pay a debt to perform a contract, or to pay damages for a tort. It shows the correlative rights, means the right of one party, no less than the liability of the other. ❖ In its political sense it takes the form of a bond between man as a citizen, and the authority under which he lives to perform an act, or number of acts for the governing authority. Man is a political animal. He is bound to live under some authority. It becomes his obligation to obey the commands of such authority. Benn and peters explained, ‘when the authorising rule is a law, and the association is a state, we call it as political obligation. DEFINITIONS OF OBLIGATION ❖ Sir John Salmond - “An obligation, therefore, may be defined as a proprietary right in personam or a duty which corresponds to such a right." Obligations are all in one class of duties, namely those which are co-relatives of rights in personam. 5 Study Material :3nd BALLB, Political Science-III- State and Political Obligations ❖ Anson - “an obligation is a control exercisable by definite persons over definite persons for the purpose of Definite acts or forbearance reducible to a money value" ❖ Savigny - an obligation is the control over another person, yet not over his person in all respects (in which case his personality would be destroyed), but over single acts of his which must be conceived of subtracted from his free will and subjected to our will. ❖ Paton - an obligation is that part of law which creates right in personam. NATURE OF POLITICAL OBLIGATION To have a political obligation is to have a moral duty to obey the laws of one's country or state. On that point there is almost complete agreement among political philosophers. But how does one acquire such an obligation, and how many people have really done what is necessary to acquire it? Or is political obligation more a matter of being than of doing that is, of simply being a member of the country or state in question? To those questions many answers have been given, and none now commands widespread assent. Indeed, a number of contemporary political philosophers deny that a satisfactory theory of political obligation either has been or can be devised. Others, however, continue to believe that there is a solution to what is commonly called “the problem of political obligation,” and they are presently engaged in lively debate not only with the skeptics but also with one another on the question of which theory, if any, provides the solution to the problem. Whether political obligation is the central or fundamental problem of political philosophy, as some have maintained, may well be doubted. There is no doubt, however, that the history of political thought is replete with attempts to provide a satisfactory account of political obligation, from the time of Socrates to the present. These attempts have become increasingly sophisticated in recent years, but they have brought us no closer to agreement on a solution to the problem of political obligation than the efforts of, say, Thomas Hobbes and John Locke in the seventeenth century. Nor have these sophisticated attempts made it unnecessary to look back to earlier efforts to resolve the problem. On the contrary, an appreciation of the troublesome nature of political obligation seems to require some attention to its place in the history of political thought. It says why men has to accept political obligation. For example, people cannot play the game of cricket without obeying the rulings of the umpire, so they cannot live well without accepting the commands of the 6 Study Material :3nd BALLB, Political Science-III- State and Political Obligations person charged with the job of maintaining peace and order in the society. As Benn and Peters observes ‘of course there are plenty of good reasons for accepting authority in general. We are often in a situation where it is more important to accept an umpire’s judgement then to insist on our own. We accept authority because most social enterprises would be hope less without it. CHARACTERISTICS OF POLITICAL OBLIGATION Political obligation is, thus, a frame through which people accept the commands of the “men in authority”. This means that it has certain distinct characteristics. They are: ❖ Management of public affairs ❖ Political Legitimacy ❖ Resistance to authority  Management of Public Affairs The art of running any government is not easy. It is a difficult and extensive task and any wrong move or incorrect policy decision would entail serious consequences. On the contrary, a positive and right step taken by the government for the people would bring good results for the development of a nation. Thus, it becomes a duty of every conscientious person to take serious interest in the management of public affairs, government policies and political questions. This interaction would be for the general good. Political obligation, thus, calls for honesty, integrity and public spirit, both on the part of the government and the people.  Political Legitimacy A study of the concept of political obligation necessarily leads to the investigation of the related theme of political legitimacy and effectiveness. The stability of a democratic political system not only depends upon economic development, but also upon its legitimacy. Legitimacy includes the capacity to produce and maintain a belief that the existing political institutions or forms are the most appropriate for society and is said to rest on the general will. Effectiveness, on the other hand, is judged on how well a system performs the basic functions of government, measured by the reaction of the masses.  Resistance to Authority 7 Study Material :3nd BALLB, Political Science-III- State and Political Obligations The idea of political obligation not only tells people to obey authority, but also desires them to be critical about the way authority is exercised. The people should scrutinize the action of their rulers and resist an invasion on their liberties. Thus, the idea of political obligation also involves the idea of resistance to authority. But of course, the right to protest against the state must be founded on a relation to social well-being in terms intelligible to the masses and the consequences of disobedience should not lead to a total breakdown of the state system. KINDS OF POLITICAL OBLIGATION 1. Moral obligation 2. Legal obligation 3. Positive obligation 4. Negative obligation MORAL OBLIGATION Moral obligation is an obligation arising out of considerations of right and wrong. It is an obligation arising from ethical motives, or a mere conscientious duty, unconnected with any legal obligation, perfect or imperfect, or with the receipt of benefit by the promisor of a material or pecuniary nature. Moral obligation springs from a sense of justice and equity that an honourable person would have, and not from a mere sense of doing benevolence or charity. LEGAL OBLIGATION Legal Obligation means any requirement or duty created by statute or common law. Legal obligation. A measure of mental capacity, used in deciding the extent to which a person can be held accountable for a crime; see diminished responsibility. Specific duties imposed upon persons to care or provide for others, such as the parents' duty to the child or the guardianship of a ward. A legal obligation exists when not fulfilling that obligation would have legal consequences. Let's say a parent abandons their child. There would be consequences in the sense that many people would think less of them. There is no legal obligation to be a good parent. However, there is a legal obligation to provide for your child's material needs. If you don't, you risk legal consequences such as wage garnishment. 8 Study Material :3nd BALLB, Political Science-III- State and Political Obligations POSITIVE OBLIGATION Positive obligations in human rights law denote a State's obligation to engage in an activity to secure the effective enjoyment of a fundamental right, as opposed to the classical negative obligation to merely abstain from human rights violations. Positive obligations in human rights law denote a State's obligation to engage in an activity to secure the effective enjoyment of a fundamental right, as opposed to the classical negative obligation to merely abstain from human rights violations. Classical human rights, such as the right to life or freedom of expression, are formulated or understood as prohibitions for the State to act in a way that would violate these rights. Thus, they would imply an obligation for the State not to kill, or an obligation for the State not to impose press censorship. Modern or social rights, on the other hand, imply an obligation for the State to become active, such as to secure individuals' rights to education or employment by building schools and maintaining a healthy economy. Such social rights are generally more difficult to enforce. Positive obligations transpose the concept of State obligations to become active into the field of classical human rights. Thus, in order to secure an individual's right to family life, the State may not only be obliged to refrain from interference therein, but positively to facilitate for example family reunions or parents' access to their children. NEGATIVE OBLIGATION Negative obligations refer to a duty not to act; that is, to refrain from action that would hinder human rights. For instance, by not returning smuggled migrants to countries where they face risks of persecution, the State will be abiding by the corresponding negative obligation. Importantly, the fulfilment of a negative obligation might very well require positive action. This may include adoption of laws, regulations and standard operating procedures that prohibit push back policies of migrant smuggling vessels found close to the State's maritime border. OBLIGATION OF STATE: UNDER MONARCHY - ANCIENT AND MEDIEVAL POLITICAL OBLIGATION IN HISTORICAL PERSPECTIVE The phrase “political obligation” is apparently no older than T. H. Green's Lectures on the Principles of Political Obligation, delivered at Oxford University in 1879–80. The two words from 9 Study Material :3nd BALLB, Political Science-III- State and Political Obligations which Green formed the phrase are much older, of course, and he apparently thought that combining them required no elaborate explanation or defence. In any case, there was nothing novel about the problem Green addressed in his lectures: “to discover the true ground or justification for obedience to law”. Sophocles raised this problem in his play Antigone, first performed around 440 BCE, and Plato's Crito recounts Socrates' philosophical response to the problem, in the face of his own death, some forty years later. DIFFERENT THEORIES OF POLITICAL OBLIGATION: Under Monarchy from Ancient to Medieval Various theories have been enunciated on political obligation. These theories explain the kind of sanctions behind the concept of political obligation.  DIVINE THEORY: Sanction in Faith This theory is one of the oldest, explaining the reasons of obedience to a state’s ruler. It implied that the ruler has derived his authority directly from God. As such, the people had no right to rebel even against a wicked ruler. In this way, people are bound by religious injunction to obey the authority of the king. This idea of ‘divine rights of kings’ was prevalent throughout the Middle Ages. However, with the advent of new learning in the modern age, it lost its significance. Criticism of the Divine Theory of Political Obligation. The Divine Theory of political obligation received scathing criticism at the hands of eminent thinkers like Grotius, Hobbes, Locke who rejected its metaphysical premises and traced the source of political obligation in consent of the individuals. When the state and the church got separated due to the growth of secularism, temporal powers became supreme to spiritual powers. However, the growth of democracy doomed this theory. Even the other metaphysical bases of obligation, like Fascism or Communism, based on the historic mission of a leader, class or party, received no support from science. They are of the same religious order as the divine rights theory. Thus, the theory lost all its appeal in the modern age.  CONSENT/CONTRACT THEORY: Sanction in Will of the People Though the idea of contract or consent as a basis of obligation is quite ancient and is found in ancient Hindu thought too, it was mainly in the 16th and the 17th century in Europe that sophisticated 10 Study Material :3nd BALLB, Political Science-III- State and Political Obligations theories of contract were developed to explain political obligation. The explicit expression of this theory is found in the writings of Thomas Hobbes and John Locke. They opine, that men who lived in the state of nature entered into a contract whereby political authority came into being, which again was based on the consent of the people. The idea of social contract, however, took a highly philosophical form at the hands of Rousseau, who reposed the fact of political obligation in the “General Will”. This meant that man no longer remains a slave to his impulses of appetite after entering into a civil society, but he becomes bound to obey the law of the general good. (Called General Will). Thus, the social contract theory justifies the conception that the ruling authority, if he has to be legitimate, must rest ultimately on the consent of the governed. If the government violates the terms of the contract, the people have the right to resist. The implications of this theory have been in the direction of safeguarding the rights and liberties of the people and checking the arbitrariness of rulers. Criticism: Though the consent theory had its field day in the seventeenth and the eighteenth centuries and even now, has its own significance on account of constituting the moral basis of a democratic order, it suffers from certain weaknesses. The theory makes the state an artificial organization. Also, the element of consent as enshrined in some contract made in a hypothetical state of nature is nothing else than a fiction, not at all legally binding on the existing generation. Thus, the people may go to the extent of staging a rebellion on the plea that they withdraw their consent in as much as the government has committed such an action in violation of the “general will’. The result is that the theory of political obligation is converted into a theory of rebellion.  PRESCRIPTIVE THEORY: Sanction in Reverence to the Established Conventions and Traditions According to this theory, political authority and reverence to it are based on the principle of “customary rights. Authority is legitimate, if it is sanctioned by long standing custom or tradition. The people obey their rulers because the fact of obedience has become like a well-established convention. The traditionalists view the state as a delicate structure built over the years and which represents a balance of conflicting interest. Institutions like the state evolve gradually and adapt slowly to change; hence, it is a matter of duty to accept state authority and obey it while working only for gradual peaceful change. This 11 Study Material :3nd BALLB, Political Science-III- State and Political Obligations conservative theory of political obligation has its affirmation in the writings of Hegel, who believes that the ideas of morality evolve concretely in the customs and institutions of the state. And since the latest stage in this process is the present established order, it is entitled to receive our obedience. Further, since the state is the embodiment of a long evolved and customary morality, it becomes the duty of everyone to do what the state expects of one. Burke is one of the best-known exponents of conservatism who opines that it is unwise for man to totally disregard custom and tradition. The fact of political obligation is contained in paying unflinching respect to tradition, which is a sacrosanct affair. Thus, he supported the revolt of American colonialists, which was in favour of traditional rights of Englishmen, but opposed the French Revolution because it was inspired by the abstract rights of man “divorced from national traditions”. Prof. M. Oakeshott is a contemporary upholder of the traditionalist view of obligation. According to him, political actions can never be anything but traditional, because political reflection cannot exist in advance of political activity. Politics is a skill, which is learned by practice rather than through theoretical maxims or systems. Hence, even when we attempt to comprehend other people’s politics, it is always within our own framework. Criticism: The Prescriptive Theory of Political Obligation Like other theories, the prescriptive theory has its own weaknesses. The source of political obligation lies not only in paying reverence to well-established practices, but also in doing away with them. People desire change and in case, their hopes are frustrated, they take to the path of revolution. Oakeshott has been particularly criticized on the ground that he treats even a revolution as an experience connected with the past and thereby, makes it a purely conservative affair. This means that the exponents of this theory would even advise the Negroes of African countries to accept racial discrimination laws as ‘legitimate’ for they are based on the ‘well- established traditions of the realm.’ However, this is far from the truth. In-fact, people only observe their traditions, in so far as they have their utility and do away with them when their usefulness does not exist.  IDEALISTIC THEORY: Sanction in the Rationality of Man the Idealists trace the source of political obligation in the innate rationality of man. Man is regarded as a ‘political and rational creature’ and the state as a ‘self - sufficing community’ identical with the whole 12 Study Material :3nd BALLB, Political Science-III- State and Political Obligations society. As such, there can be no antithesis between the individual and the state. As a consequence, an individual can seek his best possible development in society alone by obeying the command of the state. In other words, the source of political obligation is contained in obedience to the state. Both Plato and Aristotle affirmed that the state and the individuals comprising it ‘form an organic whole’. Such an affirmation finds its best manifestation in the hands of Hegel who identifies ‘liberty’ of the individual with his perfect obedience to state. Green too says, that the idea of political obligation is connected with the case of moral obligation. He suggests that only those actions should be made obligations, which are made to serve a certain moral end. Criticism: The idealistic theories have been criticized on the ground of being too abstract. It places ordinary things in a highly philosophical or metaphysical form that cannot be understood by a man of average understanding. Also, the idea of political obligation is not only concerned with man’s obedience to state, but is also integrally connected with his right to resist abuse of political authority. The idealists are reluctant to accommodate the right to resistance in their doctrine of political obligation. Even if Green and Banquet did recognize the right in certain exceptional situations, their treatment is vague and uncertain and failed to shake off the weight of English liberalism. Treitschke even goes to the extent of saying to fall down and worship the state. Thus, the idea of political obligation is converted into the injunction of blind worship of authority.  MARXIAN THEORY: Eventual Conversion of Political Obligation into Social Obligation. The Marxian theory of political obligation is basically different from other theories on the subject. It sanctions the case of political non-obligation in the pre- revolutionary stage, total political obligation in the revolutionary stage and its eventual conversion into social obligation in the post-revolutionary stage. In other words, the case of political obligation is integrally connected with the character of authority. In Marxian theory of politics, state is decried as a ‘bourgeois institution’ in capitalist society. It means, after a successful revolution, the working class has the instruments of power in their hands to consolidate the socialist order in a way preparing its ‘withering away’ in the final stage of socialism. According to Marxism, the idea of political obligation cover the cases of ‘discredited state’ in the era of capitalism, the ‘new state’ in the period of ‘dictatorship of 13 Study Material :3nd BALLB, Political Science-III- State and Political Obligations the proletariat’, and the ‘state proper’ when the ‘classless’ society finds its culmination in the ‘stateless’ pattern of social existence. The starting point of Marxian theory of politics and with it of political obligation ‘is its categorical rejection of this view of the state as the trustee, instrument, or agent of society as a whole’. The case of political obligation arises when the ‘new state’ comes into being after the revolution. The noticeable point in this theory is that what is forbidden in capitalist society is ordained in the socialist order. Not merely this, fundamental changes take place that prohibit any opposition to the state at all. The task of the Marxists is to subordinate the idea of political obligation to the dictates of permanent revolution. In other words, the idea of political obligation ceases to exist with the withering away of the state in the last stage of socialism (called communism) and finds its final conversion into the injunction of social obligation. Thus, society will be composed of the associations of free and equal producers, consciously acting upon a common and rational plan. Criticism: A critical study of Marxian theory shows that it treats the question of political obligation in a way far away from the real perspective. What is emphatically advocated in the phase of capitalism is firmly denied in the next stage of social development. People who are exhorted to disobey the ‘bourgeoisie state’ are commanded not to disobey the state at all after the inauguration of the new social system. Thus, Marx is accused of building up a theory of political obligation on the basis of expediency alone, and he ignores the independent individual whose experience only counts in the determination of his obedience to the laws of state. OBLIGATIONS OF INDIVIDUAL CITIZENS AND OTHER MEMBERS OF THE STATE Political Obligation: Why should I obey the law? Apart from the obvious prudential and self- interested reasons (to avoid punishment, loss of reputation, and so forth), is there a moral obligation to do what the law requires just because the law requires it? If the answer is yes and the mere illegality of an act renders its performance prima facie morally wrong, then I am under a political obligation. Political obligation thus refers to the moral duty of citizens to obey the laws of their state. In cases where an act or forbearance that is required by law is morally obligatory on independent grounds, political obligation simply gives the citizen an additional reason for acting accordingly. But law tends to extend beyond morality, forbidding otherwise 14 Study Material :3nd BALLB, Political Science-III- State and Political Obligations morally innocent behavior and compelling acts and omissions that are discretionary from an independent moral point of view. In such cases, the sole source of one’s moral duty to comply with the law is his or her political obligation. 1. Transactional Accounts: Transactional accounts suggest that political obligation is acquired through some morally significant transaction between the citizen and his compatriots or between the citizen and his state.” Three such theories can be distinguished. a. Fairness: A political community is a cooperative scheme that is geared towards the production of benefits for its members: security, transport, clean water, and so forth. The venture is fruitful in producing these benefits because those participating observe certain restrictions and pay their taxes. To enjoy the benefits of the scheme without submitting to its restrictions is to free-ride on the sacrifices of others, which is unfair. The demands of fairness thus yield political obligation. b. Gratitude: According to this account, a citizen owes a debt of gratitude to the government for the benefits that it provides. This debt is owed regardless of whether these benefits are accepted or merely received, and the debt is repaid through obedience to law. c. Consent: On this theory, a citizen that freely consents to his government’s authority binds himself to obedience. Though few deny this, the difficulty with consent theory is identifying an action in the personal history of most individuals that might count as a valid token of consent. 2. Natural Duty: According to natural duty theories, political obligation is grounded not in a morally significant transaction that takes place between citizens and polity, but either 1) in the importance of advancing some impartial moral good, such as utility or justice; or 2) in a moral duty owed by all persons to all others regardless of their transactional history. a. Utilitarianism: Unlike the theories previously discussed, a utilitarian account of political obligation is forward rather than backward looking, deriving political obligation from the future goods to be produced by obedience, rather than from what citizens have done in the past or what has been done for them. Utilitarianism posits that actions that maximize utility are morally required. Utility is maximized by acts that produce more (or at least as much) happiness and well-being than any alternative course of action that is open to the agent. The duty to obey the law is derived from this: since obedience produces more happiness than disobedience, one must obey. b. Rights- Protecting Institutions: Political obligation might alternatively be derived from the natural 15 Study Material :3nd BALLB, Political Science-III- State and Political Obligations duties that human rights impose on us. The theory developed by Allen Buchanan in “Political Legitimacy and Democracy” (2002) will serve as an example. To show adequate respect for human rights, it is not enough to refrain from violating them. We must also do what we can to ensure that they are not violated by others, at least when we can do so without sustaining too high a personal cost. This is not a duty that we possess by virtue of having committed ourselves to protecting others. We have it “naturally,” regardless of what we have done in the past or what has been done for us. 3. Associative Theories: According to associative accounts, a citizen is duty-bound to obey the law simply by virtue of his or her membership in a political community. In many cases, we are willing to concede that the non-voluntary occupation of a social role comes with moral duties attached. The duties of neighbours, friends, and family are all cases in point. (A daughter owes her parents honour and respect simply because she is their daughter, independently of whatever debt of gratitude she may have accrued). Likewise, political associations are “pregnant of obligation,” such that occupying the role of a “citizen” within such an association comes with its own set of duties, including a duty to obey the law. 4. Relationship to Legitimate Authority: On the traditional view, legitimate authority and political obligation are two sides of the same coin. A state is “legitimate” in the sense of having a right to issue and enforce directives if and only if its citizens are under a political obligation. If citizens do not have a prima facie obligation to obey the law, their government does not have a right to promulgate and enforce it. 5. The Weight of Political Obligation: It does not, however, follow from one’s being under a political obligation that he or she ought always to obey the law. Political obligation is prima facie and countervailing moral considerations always need to be taken into account when assessing the right course of action. The weight that should be ascribed to political obligation in any such judgment is, furthermore, an open question. M.B.E Smith argues that it is negligible. A prima facie duty has considerable weight if and only if; 1) “an act which violates that obligation and fulfils no other is seriously wrong;” and 2) “violation of it will make considerably worse an act which on other grounds is already wrong”. Running a stop sign when it is perfectly safe to do so and when there is nobody else around to witness and be influenced by the indiscretion, constitutes a transgression of a citizen’s political obligation. 6. Philosophical Anarchism: 16 Study Material :3nd BALLB, Political Science-III- State and Political Obligations There is today a growing consensus to the effect that no theory of political obligation succeeds. But not everybody infers from this that political obligation does not exist. After all, the source and nature of moral requirements more generally may not be adequately captured by any of our theories, but few advances this as proof that we are not bound by moral requirements. “Philosophical anarchism” is the term used to describe this latter position – that there is no prima facie duty to obey the law, even in a just state, (the flip- side of this being that no state is “legitimate” in the sense of enjoying a right to obedience). CONCLUDING REMARKS If political obligation does not exist, what follows? Locke declares that an individual “under the exercise of a power without right” – the power of an authority without a claim to his obedience – is “at liberty to appeal to heaven” or to resort to violent resistance. On this view, philosophical anarchism offers something of a justification for political anarchism – disobedience and resistance to the state. But one can have strong moral reasons for complying with directives issued by his government without owing any obligations to that government. A state might deserve obedience without being entitled to it. Moreover, the acts and forbearances required by law are in many cases morally required independently of the law. The fact that a citizen is free from political obligation means only that the law’s demanding something of him is not in itself a morally relevant consideration for behaving accordingly. But the citizen’s pre-existing moral duties will in many (or even most) cases be sufficient to prohibit his acting contrary to the law. Thus, the absence of political obligation does not challenge our understanding of when morality demands conformity with law and non-resistance as dramatically as one might expect. In a strict sense, the idea of political obligation is not a political, but a moral affair. However, the norm of morality differs from time to time, place to place and people to people. The dimensions of political obligation to vary and similarly, the injunctions of popular resistance also differ. The state is a necessary means to the ends of justice and if it does this on the basis of a broad consensus, then there is a kind of contractual understanding that in return for what the state does to promote justice and good, we undertake to obey it. ********* 17 Study Material :3nd BALLB, Political Science-III- State and Political Obligations UNIT- II LAW SYNOPSIS 2.1 Meaning of Law 2.2 Nature and Sources of Law 2.3 Kinds of Law 2.4 Law and Morality INTRODUCTION What is Law?  law is the body of official rules and regulations, generally found in constitutions, legislation, judicial opinions hence Law is a formal mechanism of social control.  Law is a system of rules created and enforced through social or governmental institutions to regulate behaviour.  Law is a Set of regulations backed by the State /Authorities  Law is a rule of behaviour for the members of a state which meets with a penalty which will be enforced by the machinery of State. Root word of Law: Law derived from the Old Teutonic Word: Lag, which means - To place, to Set, to Fix something in an even manner. The Deeper Sense of Law from - Latin word = Jus, Junger which gives the meaning of Bond or Tie. 18 Study Material :3nd BALLB, Political Science-III- State and Political Obligations DEFINITION’S Definition of law is a rule of conduct developed by the government or society over a certain territory. Law follows certain practices and customs in order to deal with crime, business, social relationships, property, finance, etc. The Law is controlled and enforced by the controlling authority. Let us explore the various definitions of law by different authors in detail. ❖ John Austin’s law definition states “Law is the aggregate set of rules set by a man as politically superior, or sovereign to men, as political subjects.” Thus, this definition defines law as a set of rules to be followed by everyone, regardless of their stature. ❖ Salmand; “Law is the body of principles recognized and applied by the state in the administration of justice”. ❖ Immanuel Kant: Law is some total of conditions under which the personal wishes of one man can be combined with the personal which of another man. ❖ Rudolph Von Ihering’s law definition. – “The form of the guarantee of conditions of life of society, assured by State’s power of constraint.” ❖ Oliver Wendell Holmes stated – “Law is a statement of the circumstances in which public force will be brought to bear upon through courts.” ❖ Benjamin Nathan Cardozo who stated “A principle or rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged, is a principle or rule of law.” NATURE AND SCOPE OF LAW What is the nature of law or what is the essence of law is a long-disputed question? Various Greek thinkers have already raised several questions on the topic and the answer is still not clear. That does not mean that there is no clear answer but there is not a complete answer which can be claimed to be absolute. Also, this question has preoccupied Jurisprudence and philosophy of law. There are two kinds of law. One is based on justice, the other one is based on control. The latter part is in use today. “Might is right” principle is followed. It is retribution instead of restoration which should be followed. 19 Study Material :3nd BALLB, Political Science-III- State and Political Obligations Justice is a set of universal principles which guide people to analyse what is right and what is wrong. It disregards the culture and society one lives in. Fiat justitia ruat caelum is a Latin phrase which means, “Let justice be done, though the sky falls.” Social control refers to mechanisms which regulate individual and group behaviour. E.A. Ross, the famous sociologist believed that it is not the laws that guide human behaviour but it is the belief systems that guide what individuals do. Social control mechanisms can be adopted as laws and norms which control and define human behaviour. Law serves many purposes and functions. It helps to maintain peace. Violence should not be allowed in the society and thus, peace is maintained by the orders or we can say the laws of the government. Law also helps to establish standards. It also protects rights of the people. Without laws, people will not even get the basic rights which they deserve. Also, law can be called as a good career option. From Mahatma Gandhi to Barack Obama, all are associated with the career of law. It acted as a stepping stone to their success. There are various career options in law like litigation, civil services, professors or one can go in the corporate sector. Contemporary legal theories define these two main interests in the nature of law in the following terms. First, we need to understand the general conditions that would render any putative norm legally valid. Is it, for example, just a matter of the source of the norm, such as its enactment by a particular political institution, or is it also a matter of the norm’s content? This is the general question about the conditions of legal validity. Second, there is the interest in the normative aspect of law. This philosophical interest is twofold: A complete philosophical account of the normativity of law comprises both an explanatory and a justificatory task. The explanatory task consists of an attempt to explain how legal norms can give rise to reasons for action, and what kinds of reasons are involved. The task of justification concerns the question of whether people ought to comply morally speaking or all things considered with law’s demands. In other words, it is the attempt to explain the moral legitimacy of law and the subjects’ reasons for complying with it. A theory about the nature of law, as opposed to critical theories of law, concentrates on the first of these two questions. It purports to explain what the normativity of law actually consists in. SOURCES OF LAW 20 Study Material :3nd BALLB, Political Science-III- State and Political Obligations WHERE DOES LAW COME FROM? Sources of law mean the sources from where law or the binding rules of human conduct originate. In other words, law is derived from sources. Jurists have different views on the origin and sources of law, as they have regarding the definition of law. As the term 'law'has several meanings, legal experts approach the sources of law from various angles. For instance, Austin considers sovereign as the source of law while Savigny and Henry Maine consider custom as the most important source of law. Natural law school considers nature and human reason as the source of law, while theologians consider the religious scripts as sources of law. Although there are various claims and counter claims regarding the sources of law, it is true that in almost all societies, law has been derived from similar sources. CLASSIFICATION OF SOURCES Salmond, an English Jurist, has classified sources of law into the following categories: Formal Sources of Law: These are the sources from which law derives its force and validity. Alaw enacted by the State or Sovereign falls into this category. Material Sources of Law: It refers to the material of law. In simple words, it is all about the matter from where the laws are derived. Customs fall in this category of law. However, if we look around and examine the contemporary legal systems, it may be seen that most legal systems are based on legislations. At the same time, it is equally true that sometimes customs play a significant role in the legal system of a country. In some of the legal systems, court decisions are binding as law. On the basis of the above discussion, three major sources of law can be identified in any modern society are as follows: i. Custom ii. Judicial precedent iii. Legislation CUSTOM AS ASOURCE OF LAW: A custom, to be valid, must be observed continuously for a very long time without any interruption. Further, a practice must be supported not only for a very long time, but it must also be supported by the opinion of the general public and morality. However, every custom need not become law. For example, the Hindu Marriages Act, 1955 prohibits marriages which are within the prohibited degrees of relationship. However, the Act still 21 Study Material :3nd BALLB, Political Science-III- State and Political Obligations permits marriages within the prohibited degree of relationship if there is a proven custom within a certain community. Custom can simply be explained as those long-established practices or unwritten rules which have acquired binding or obligatory character. In ancient societies, custom was considered as one of the most important sources of law; In fact, it was considered as the real source of law. With the passage of time and the advent of modern civilization, the importance of custom as a source of law diminished and other sources such as judicial precedents and legislation gained importance. Can Custom be law? There is no doubt about the fact that custom is an important source of law. Broadly, there are two views which prevail in this regard on whether custom is law. Jurists such as Austin opposed custom as law because it did not originate from the will of the sovereign. Jurists like Savigny consider custom as the main source of law. According to him the real source of law is the will of the people and not the will of the sovereign. The will of the people has always been reflected in the custom and traditions of the society. Custom is hence a main source of law. Example; Saptapadi is an example of customs as a source of law. It is the most important rite of a Hindu marriage ceremony. The word, Saptapadi means "Seven steps". After tying the Mangalsutra, the newly-wed couple take seven steps around the holy fire, which is called Saptapadi. The customary practice of Saptapadi has been incorporated in Section 7 of the Hindu Marriage Act, 1955. JUDICIAL PRECEDENT AS A SOURCE OF LAW: In simple words, judicial precedent refers to previously decided judgments of the superior courts, such as the High Courts and the Supreme Court, which judges are bound to follow. This binding character of the previously decided cases is important, considering the hierarchy of the courts established by the legal systems of a particular country. In the case of India, this hierarchy has been established by the Constitution of India. Judicial precedent is an important source of law, but it is neither as modern as legislation nor is it as old as custom. It is an important feature of the English legal system as well as of other common law countries which follow the English legal system. In most of the developed legal systems, judiciary is considered to be an important organ of the State. In modern societies, rights are generally conferred on the citizens by legislation and the main function of the judiciary is to 22 Study Material :3nd BALLB, Political Science-III- State and Political Obligations adjudicate upon these rights. The judges decide those matters on the basis of the legislations and prevailing custom but while doing so, they also play a creative role by interpreting the law. By this exercise, they lay down new principles and rules which are generally binding on lower courts within a legal system. Given this background, it is important to understand the extent to which the courts are guided by precedents. It is equally important to understand what really constitutes the judicial decision in a case and which part of the decision is actually binding on the lower courts. DOCTRINE OF PRECEDENT IN INDIA - A BRITISH LEGACY Pre-Independence: According to Section 212 of the Government of India Act, 1919, the law laid down by Federal Court and any judgment of the Privy Council was binding on all courts of British India. Hence, Privy Council was supreme judicial authority - AIR 1925 PC 272. Post-Independence: Supreme Court (SC) became the supreme judicial authority and a streamlined system of courts was established. 1) Supreme Court: Binding on all courts in India Not bound by its own decisions, or decisions of PC or Federal Court - AIR 1991 SC 2176 2). 2) High Courts: Binding on all courts within its own jurisdiction Only persuasive value for courts outside its own jurisdiction. In case of conflict with decision of same court and bench of equal strength, referred to a higher bench. Decisions of PC and federal court are binding as long as they do not conflict with decisions of SC. 3) 3) Lower Courts: Bound to follow decisions of higher courts in its own state, in preference to High Courts of other states. LEGISLATION AS ASOURCE OF LAW: In modern times, legislation is considered as the most important source of law. The term 'legislation' is derived from the Latin word legis which means 'law' and latum which means "to make" or "set". Therefore, the word 'legislation' means the 'making of law'. The importance of legislation as a source of law can be measured from the fact 23 Study Material :3nd BALLB, Political Science-III- State and Political Obligations that it is backed by the authority of the sovereign, and it is directly enacted and recognised by the State. The expression 'legislation' has been used in various senses. It includes every method of law-making. In the strict sense it means laws enacted by the sovereign or any other person or institution authorised by him. RELIGION AS SOURCE OF LAW: The customs find its sanction in the religious books of the people. Since time immemorial people have either faith in God or some supernatural powers and they tried to lay down rules for the regulations of their behaviour. In course of time most of the principles of religious law have been translated by the state in terms of specific rules. LAW AND MORALITY In the modern world, morality and law are almost universally held to be unrelated fields and, where the term "legal ethics" is used, it is taken to refer to the professional honesty of lawyers or judges, but has nothing to do with the possible "rightness" or "wrongness" of particular laws themselves. This is a consequence of the loss of the sense of any "truth" about man, and of the banishment of the idea of the natural law. It undermines any sense of true human rights, leaves the individual defenceless against unjust laws, and opens the way to different forms of totalitarianism. This should be easy enough to see for a person open to the truth; but many people's minds have set into superficial ways of thinking, and they will not react unless they have been led on, step by step, to deeper reflection and awareness. What Is Morality? Morality is a rule which lays down a standard of behavior which the bulk of society accept and to which its members ought to conform and which justifies. Morality is the concept of what is right or wrong in a particular society - what is acceptable or unacceptable conduct in the society. THEORY OF RELATIONSHIP BETWEEN LAW AND MORALITY Ever since the revival of the scientific study of jurisprudence the connection of law and morality has much discussed, but the question is not yet, and perhaps never will be settled. Every variety of 24 Study Material :3nd BALLB, Political Science-III- State and Political Obligations opinion has been entertained, from the extreme doctrine held by Austin that for the purpose of the jurist, law is absolutely independent of morality, almost to the opposite positions, held by every Oriental cadi, that morality and law are one. The question is an important one, and upon the answer which is given to it depends upon the answer which is consequences. The problem is an intensely practical one. The popular conception of the connection between law and morality is that in some way the law exists to promote morality, to preserve those conditions which make the moral life possible, and then to enable men to lead sober and industrious lives. The average man regards law as justice systematized, and justice itself as a somewhat chaotic mass of moral principles. On this view, the positive law is conceived of as a code of rules, corresponding to the code of moral laws, deriving its authority from the obligatory character of those moral laws, and being just or unjust according as it agrees with, or differs from them. This, like all other popular conceptions, is inadequate for scientific purposes, and the jurist, so for at least as he is also a scientist, is compelled to abandon it. For it is contradicted by the facts. positive laws do not rest upon moral laws and common notions of justice furnish no court of appeal from the decrees of the State. The average man confounds law and morality, and identifies the rules of law with the principles of abstract justice. ❖ Morality Influences the Law: Providing ethical reasons as to why the immoral actions are considered illegal by the law. Hence, morality stands as the fundamental basis for the ideal set of laws in a country. ❖ Morality uplifts the moral standards of the people: Morality aims at uplifting the moral standards of the people while the core aim of the law is also the same thing. ❖ Functional and historical Relationship: There is a close relationship between law and morality for both functional and historical reasons. 1. English law is informed by a Judeo- Christian tradition. 2. Law responds to changes in moral attitudes e.g., Rape within marriage, 3. Manufacturers owe a duty of care to consumers. 4. Law is used to promote changes in morality e.g., homosexuality, race relations. DIFFERENCES BETWEEN LAW AND MORALITY Behaviour which is commonly regarded as immoral is often also illegal. However, legal and moral principles can be distinguished from each other. For instance, parking on a double yellow line is illegal but not commonly regarded as immoral. 25 Study Material :3nd BALLB, Political Science-III- State and Political Obligations LAW MORALITY Law regulates and controls the external human Morality regulates and controls both the inner conduct. It is not concerned with inner motives and the external actions. It is motives. A person may be having an evil concerned with the whole life of man. intention in his or her mind but law does not The province of law is thus limited as care for it. Law will move into action only compared with that of morality because law is when this evil intention is translated into action simply concerned with external actions and and some harm is actually done to another does not take into its fold the inner motives. person. Morality condemns a person if he or she has some evil intentions but laws are not applicable unless these intentions are manifested externally. Law is universal in a particular society. All the Morality is variable. It changes from man to individuals are equally subjected to it. It does man and from age to age. Every man has his not change from man to man. own moral principles. Political laws are precise and definite as there Moral laws lack precision and definiteness as is a regular organ in every state for the there is no authority to make and enforce them. formulation of laws. Law is framed and enforced by a determinate Morality is neither framed nor enforced by any political authority. It enjoys the sanction of the political authority. It does not enjoy the state. Disobedience of law is generally support of the state. Breach of moral principles followed by physical punishment. is not accompanied by any physical punishment. The only check against the breach of morality is social condemnation or individual conscience. 'Moral actions are a matter of choice of inner conscience of the individual, laws are a matter of compulsion'. Law falls within the purview of a subject Morality is studied under a separate branch of known as Jurisprudence. knowledge known as Ethics. 26 Study Material :3nd BALLB, Political Science-III- State and Political Obligations DELEGATED LEGISLATION INTRODUCTION Administrative Law is that portion of law which determines the organization, powers and duties of administrative authorities. The most significant and outstanding development of the twentieth century is the rapid growth of administrative law. Though administrative law has been in existence, in one form or the other, before the 20th century, it is in this century that the philosophy as to the role and function of the State has undergone a radical change. The governmental functions have multiplied by leaps and bounds. Today, the State is not merely a police State, exercising sovereign functions, but as a progressive democratic State, it seeks to ensure social security and social welfare for the common man, regulates the industrial relations, exercises control over the production, manufacture and distribution of essential commodities, starts many enterprises, tries to achieve equality for all and ensures equal pay for equal work. It improves slums, looks after the health and morals of the people, provides education to children and takes all the steps which social justice demands. In short, the modern State takes care of its citizens from ‘cradle to grave’. All these developments have widened the scope and ambit of administrative law. MEANING OF DELEGATED LEGISLATION One of the advances in the realm of administrative process made during these days is that apart from 'pure' administrative function, the executive performs legislative function as well. Due to a number of reasons, there is rapid growth of administrative legislation. According to the traditional theory, the function of the executive is to administer the law enacted by the legislature, and in the ideal State, the legislative power must be exercised exclusively by the legislators who are directly responsible to the electorate. But, in truth, apart from ‘pure’ administrative functions, the executive performs many legislative and judicial functions also. It has, therefore, been rightly said that the delegated legislation is so multitudinous that a statute book would not only be incomplete but misleading unless it be read along with delegated legislation which amplifies and supplements the law of the land. It is very difficult to give any precise definition of the expression ‘delegated legislation. ‘It is equally difficult to state with certainty the scope of such delegated legislation. According to Salmond, legislation is either supreme or subordinate. Whereas the former proceeds from sovereign or supreme power, the latter flow from any authority other than the sovereign 27 Study Material :3nd BALLB, Political Science-III- State and Political Obligations power, and is, therefore, dependent for its existence and continuance on superior or supreme authority. Delegated legislation thus is a legislation made by a body or person other than the Sovereign in Parliament by virtue of powers conferred by such sovereign under the statute. A simple meaning of the expression ‘delegated legislation’ may be given as: ‘When the function of legislation is entrusted to organs other than the legislature by the legislature itself, the legislation made by such organs is called delegated legislation.’ REASONS FOR GROWTH OF DELEGATED LEGISLATION: Many factors are responsible for the rapid growth of delegated legislation in every modern democratic State. The traditional theory of ‘laissez faire’ has been given up by every State and the old ‘police State’ has now become a ‘welfare State.’ Because of this radical change in the philosophy as to the role to be played by the State, its functions have increased. Consequently, delegated legislation has become essential and inevitable. i. Pressure upon Parliamentary Time: As a result of the expanding horizons of State activity, the bulk of legislation is so great that it is not possible for the legislature to devote sufficient time to discuss all the matters in detail. Therefore, legislature formulates the general policy and empowers the executive to fill in the details by issuing necessary rules, regulations, bye-laws, etc. In the words of Sir Cecil Carr, delegated legislation is “a growing child called upon to relieve the parent of the strain of overwork and capable of attending to minor matters, while the parent manages the main business.” ii. Technicality: Sometimes, the subject-matter on which legislation is required is so technical in nature that the legislator, being himself a common man, cannot be expected to appreciate and legislate on the same, and the assistance of experts may be required. Members of Parliament may be the best politicians but they are not experts to deal with highly technical matters which are required to handle by experts. Here the legislative power may be conferred on expert to deal with the technical problems, e.g. gas, atomic energy, drugs, electricity, etc. iii. Flexibility: At the time of passing any legislative enactment, it is impossible to foresee all the contingencies, and some provision is required to be made for these unforeseen situations demanding exigent action. A legislative amendment is a slow and 28 Study Material :3nd BALLB, Political Science-III- State and Political Obligations cumbersome process, but by the device of delegated legislation, the executive can meet the situation expeditiously, e.g., bank-rate, police regulation export and import, foreign exchange, etc. For that purpose, in many statutes, a ‘removal of difficulty’ clause is found empowering the administration overcome difficulties by exercising delegated power. iv. Experiment: The practice of delegated legislation enables the executive to experiment. This method permits rapid utilization of experience and implementation of necessary changes in application of the provisions in the light of such experience, e.g., in road traffic matters, an experiment may be conducted and in the light of its application necessary changes could be made. Delegated legislation thus allows employment and application of past experience. v. Emergency: In times of emergency, quick action is required to be taken. The legislative process is note quipped to provide for urgent solution to meet the situation. Delegated legislation is the only convenient remedy. Therefore, in times of war and other national emergencies, such as aggression, breakdown of law and order, strike, 'bandh', etc. the executive is vested with special and extremely wide powers to deal with the situation. There was substantial growth of delegated legislation during the two World Wars. Similarly, in situation of epidemics, floods, inflation, economic depression, etc. immediate remedial actions are necessary which may not be possible by lengthy legislative process and delegated legislation is the only convenient remedy. vi. Complexity of Modern Administration: The complexity of modem administration and the expansion of the functions of the State to the economic and social sphere have rendered it necessary to resort to new forms of legislation and to give wide powers to various authorities on suitable occasions. By resorting to traditional legislative process, the entire object may be frustrated by vested interests and the goal of control and regulation over private trade and business may not be achieved at all. The practice of empowering the executive to make subordinate legislation within the prescribed sphere has evolved out of practical necessity and pragmatic needs of the modem welfare State. HISTORY OF DELEGATED LEGISLATION IN INDIA The Privy Council was the highest Court for appeal from India in constitutional matters till 1949. The question of constitutionality came before the Privy Council in the famous case of R.Vs. Birah 29 Study Material :3nd BALLB, Political Science-III- State and Political Obligations (1878) 3 AC 889. An Act was passed in 1869 by the Indian Legislature to remove Goro Hills from the civil and criminal jurisdiction of Bengal and vested the powers of civil and criminal administration in an officer appointed by the Legislative Governor of Bengal. The Legislative Governor was further authorized by section 9 of the Act to extend any provision of this Act with incidental changes to Khasi and Jaintia Hills. By a notification the Legislative Governor extended all the provisions of the Act to the districts of Khasi and Jaintia Hills. One Burah was tried for murder by the commissioner of Khasi and Jaintia Hills and was sentenced to death. The Calcutta High Court declared section 9 as unconstitutional delegation of legislative power by the Indian legislature. The ground was that the Indian Legislature is a delegate of British Parliament, therefore, a delegate cannot further delegate. The Privy Council on appeal reversed the decision of the Calcutta High Court and upheld the constitutionality of section 9 on the ground that it is merely a conditional legislation. The decision of the Privy Council was interpreted in two different ways. (i) Indian legislature was not delegate of British Parliament; there is no limit on the delegation of legislative functions. (ii) (ii) Since Privy Council has validated only conditional legislation. Therefore, delegation of legislative power is not permissible. So, it did not become clear whether full-fledged delegated legislation was allowed or only conditional legislation was allowed. Federal Court: The question of constitutionality of delegation of legislative powers came before the Federal Court in Jhatindra Nath Gupta Vs. Province of Bihar, AIR 1949 FC 175. On this case section 1(3) of Bihar Maintenance of public order Act, 1948 was challenged on the ground that it authorized the provincial government to extend the life of the Act for one year with modification as it may deem fit. The Federal Court held that the power of extension with modification is unconstitutional delegation of legislative power because it is an essential legislative Act. In this manner for the first time, it was held that in India legislative powers cannot be delegated. However, Fazal Ali J. in his dissenting opinion held that the delegation of the power of extension of the Act is unconstitutional because according to him it merely amounted to a continuation of the Act. Later on, it is submitted that the minor view was correct and the Supreme Court upheld similar provision in another cases. 30 Study Material :3nd BALLB, Political Science-III- State and Political Obligations Supreme Court The decision in Jatindra Nath Case created doubts about the limits of delegation of legislative powers. Therefore, in order to clarify the position of law for the future guidance of the legislature in matters of delegation of legislative function, the President of India sought the opinion of the Court under Article 143 of the Constitution on the constitutionality of three Acts which conferred extension of area and modification power to the executive. The Delhi Laws Act case, AIR 1951, among them, is said to be the Bible of delegated legislation. Seven judges heard the case and produced separate judgments. The case was argued from two extreme points. Argument-1: Power of legislation carries with it the power to delegate. If the legislative doesn’t abdicate itself, there can be no limitation on delegation of legislative powers. Argument-2: As there is in the Constitution the separation of powers and delegatus non potest delegare, so there is an implied prohibition against delegation of legislative powers. The Supreme Court took the moderate view and held- (i) Doctrine of separation of powers is not a part of the constitution. (ii) (ii) Indian Parliament is never considered an agent of anybody and therefore doctrine of delegatus non potest delegare has no application. (iii) (iii) Parliament cannot abdicate or efface itself by creating a legislative body. (iv) (iv) Power of delegation is ancillary to the power of legislation. (v) (v) The limitation upon delegation of power is that the legislature cannot part with its essential legislative power that has been expressly vested in it by the constitution. Essential legislative power means laying down the policy of the law and enacting that policy into a rule of conduct. So, the delegation was held to be valid except with repealing and modification of legislative power. DELEGATED LEGISLATION: POSITION UNDER CONSTITUTION OF INDIA The Legislature is quite competent to delegate to other authorities. To frame the rules to carry out the law made by it. In D. S. Gerewal v. The State of Punjab, K.N. Wanchoo, the then justice of the Hon'ble Supreme Court dealt in detail the powers of delegated legislation under the Article 312 of Indian Constitution. He observed: "There is nothing in the words of Article 312 which takes away 31 Study Material :3nd BALLB, Political Science-III- State and Political Obligations the usual power of delegation, which ordinarily resides in the legislature. The words "Parliament may by law provide" in Article 312 should not be read to mean that there is no scope for delegation in law made under Article312…." In the England, the parliament being supreme can delegated any number of powers because there is no restriction. On the other hand, in America, like India, the Congress does not possess uncontrolled and unlimited powers of delegation. In Panama Refining Co. v. Rayans, the supreme court of the United States had held that the Congress can delegate legislative powers to the Executive subject to the condition that it lays down the policies and establishes standards while leaving to the administrative authorities the making of subordinate rules within the prescribed limits. 4 Art. 13 (3) Defines law and it Includes ordinance, order, byelaw, rule, regulation & notification having the force of law. In Sikkim v. Surendra Sharma (1994) 5 SCC282- it is held that ‘All Laws in force’ in sub clause (k) of Art. 371 F includes subordinate legislation. Salmond defines law as that which proceeds from any authority other than the Sovereign power & is therefore, dependent for its continued existence & validity on some superior or supreme authority. TYPES OF DELEGATED LEGISLATION: - Statutory Instruments: These are made by Government Ministers and they insert the detail to Acts of Parliament. Statutory Instruments make up the majority of delegated legislation that is made. Around 3,000 Statutory Instruments are issued each year. Orders in Council: Under British-era, they were made by the Queen on the advice of the Government and are usually made when Parliament is not sitting. They can be used by the Government in emergency situations. Bye Laws: They are made by Local Authorities to deal with matters within their particular locality. SAFEGUARDS OF DELEGATED LEGISLATION: CONTROL OVER DELEGATED LEGISLATION There are three kinds of Control given under Delegated Legislation: 1. Parliamentary or Legislative Control 32 Study Material :3nd BALLB, Political Science-III- State and Political Obligations 2. Judicial Control 3. Executive or Administrative Control PARLIAMENTARY OR LEGISLATIVE CONTROL Under parliamentary democracy it is a function of the legislature to legislate, and it’s not only the right but the duty of the legislature to look upon its agent, how they are working. It is a fact that due to a delegation of power and general standards of control, the judicial control has diminished and shrunk its area. In India “Parliamentary control” is an inherent constitutional function because the executive is responsible to the legislature at two stages of control. 1. Initial stage 2. Direct and Indirect stage In the Initial stage, it is to decide how much power is required to be delegated for completing the particular task, and it also observed that delegation of power is valid or not.Now, the second stage consists of two different parts. 1. Direct control 2. Indirect control Direct control: Laying is an important and essential aspect under direct control and it is laid down as per the requirement which means that after making the rule it should be placed before the Parliament. It includes three important part as per the degree of control needs to be exercised. 1. Simple Laying 2. Negative Laying 3. Affirmative Laying And “test of Mandatory” & “Test of Directory” are two main tests. Test of Mandatory – Where the laying demand is a condition pattern to guide the rule into impact then in such a case laying need is mandatory. Where the provision is mentioned that the rules should be drafted in a particular format then it becomes mandatory to follow the format. 33 Study Material :3nd BALLB, Political Science-III- State and Political Obligations Test of Directory – Where the laying need is next to enforce the rule into operation then it will be directory in nature. Indirect control: This is a control exercised by Parliament and its committees. Another name for such type of committee is Subordinate legislation. The main work of the committee is to examine. 1. Whether rule is according to general object of the act. 2. It bars the jurisdiction of the court in direct or indirect ways. 3. Whether it has retrospective effect or not. 4. Whether it safeguard or destroy the Principle of Natural Justice. 5. Expenditure involved in it is from Consolidated fund. PROCEDURAL AND EXECUTIVE CONTROL There is no particular procedure for it until the legislature makes it mandatory for the executive to follow certain rules or procedure. To follow a particular format, it may take a long time which will definitely defeat the actual objective of the act. Hence, procedural control means that under Parent act certain guidelines are given which need to be followed while whether it is mandatory or directory to follow it or not. It includes three components: 1. Pre-publication and consultation with an expert authority, 2. Publication of delegated legislation. 3. Laying of rules. It can be either Mandatory or Directory, to know, certain specified parameters are given: 1. Scheme of the Act. 2. Intention of Legislature. 3. Language used for drafting purpose. 4. Inconvenience caused to the public at large scale. And these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur Municipal Council. 34 Study Material :3nd BALLB, Political Science-III- State and Political Obligations JUDICIAL CONTROL Judicial review upgraded the rule of law. The court has to see that the power delegated is within the ambit of the constitution as prescribed. Judicial review is more effective because court do not recommend but it clearly strikes down the rule which is ultra vires in nature. As per Section 13(3)(a) “Law” is defined under the Constitution of India which clearly indicate that State should not make any law which abridge the right given in Part iii of the Constitution. It is dependent on two basic grounds: 1. It is ultra vires to the Constitution of India, and 2. It is ultra vires to the enabling Act. In India, Parliamentary control overlaps the delegated legislation then it is mandatory that the committee of parliament need to be strong enough and separate laws should be made and passed which give a uniform rule for laying down and publication purposes. A committee must contain a special body to look on the delegated work whether it’s going in the right direction and effectively or not. All the three organs should focus on their work and do not interrupt unnecessarily to prevent chaos in the system. IMPORTANT CASES ON DELEGATED LEGISLATION In the case of Narendra Kumar v. Union of India, it was held by the Supreme Court that the provision under Section 3(5) of the Essential Commodities Act, 1955, which explains that any rules framed under the Act must be presented before both the houses of the Parliament. Therefore, clause 4 of Non – Ferrous Control Orders, 1958 has no effect until it is presented in the Parliament. There are a number of rules in the area of judicial control over the delegation of legislation which is laid down by the judiciary. In Chandra Bhan’s case, it was held that the delegation of legislation must be reasonable and should not suffer from any unreasonableness. Delegated legislation should protect the rule of law and there should be no arbitrariness. Rules framed which violates the Parent Act are illegal. Rules framed which violates any other statute should also be considered as void. Delegated legislation made with mala fide intention is also considered illegal. 35 Study Material :3nd BALLB, Political Science-III- State and Political Obligations ADVANTAGES OF DELEGATED LEGISLATION ❖ Save time for the legislature. ❖ Allow for flexibility. ❖ Expert opinion is required in legislation. ❖ Parliament is not always present in the session. ❖ Used as an experimental basis. ❖ It is restored to use it in a situation of emergency. ❖ Can be easily Settle down with consulting the required party of the case. CRITICISM OF DELEGATED LEGISLATION ❖ It has a long duration of bearing for legislative control because the legislature is the supreme organ of the state as it consists of three main organs which are: Judiciary, Legislative and Executive. ❖ All of them have to work with or in relation to each other and it should be done in a balanced way on the basis of power given to each organ for working effectively. Instead of various advantages, delegated legislation has weakened the legislative control executive. ❖ The executive has become stronger with delegated legislation, it can easily encroach the rules and regulation of legislation by making rules. ❖ This concept opposes the rule of Separation of Power. ❖ Lack of relevant discussion before framing the law. ❖ It is not in acceptance with the principle of rule of law. ❖ It is not stable in nature; it keeps on fluctuating on the ground of Political changes. CONCLUDING REMARKS Delegated or subordinate legislation means rules of law made under the authority of an Act of Parliament. Although law making is the function of legislature, it may, by a statute, delegate its power to other bodies or persons. The statute which delegates such power is known as Enabling Act. By Enabling Act, the legislature, lays down the broad guidelines and detailed rules are enacted by the delegated authority. Delegated legislation is permitted by the Indian Constitution. It exists in form of bye rules, regulations, orders, bye laws etc. There are many factors responsible for its 36 Study Material :3nd BALLB, Political Science-III- State and Political Obligations increase: Parliament and State Legislature are too busy to deal with the increasing mass of legislations, which are necessary to regulate daily affairs. Modern legislation requires technicality and expertise knowledge of problems of various fields, our legislators, who are politicians are not expected to have such knowledge. Subordinate legislations are more flexible, quickly and easily amendable and revocable than ordinary legislation, in case of failure or defect in its application. When contingencies arise, which were not forceable at the time of making it, subordinate legislation can pass an act quickly to handle them. Quick, effective and confidential decisions are not possible in body of legislatives. So, executives are delegated with power to make rules to deal with such situations. These are the main factors, besides many others, for the fast increase in delegated legislation today. LIBERTY INTRODUCTION: Liberty is derived from a Latin word “Liber”, which means free or independent. The concept of liberty occupies a very important place in civics. It has made powerful appeal to every man in every age. Itis the source of many wars and revolutions. In the name of liberty war, battles, revolutions and struggles have taken place in the history of mankind. Liberty means the unrestricted freedom of the individual to do anything he likes to do. But this sort of unrestricted liberty is not possible in society. NATURE AND SCOPE: The idea of liberty may be analyzed in terms of: Freedom as the quality of Human Being: Animals, birds, insects are governed 'struggle for existence' and 'survival of the fittest'. Only a human being is capable of freedom. Man as a homoserine has distinguished himself from other living beings as he claims to have an aim in his life. Man has created many social organizations. Man has tamed and controlled animals. Freedom is the distinctive quality of man. DEFINITIONS: ❖ Montesquieu: - “Liberty means the power of doing what we ought to do”. ❖ Prof. Seely: - “Liberty means the absence of restraints”. 37 Study Material :3nd BALLB, Political Science-III- State and Political Obligations ❖ T.H. Green: - “It is the power to do or enjoy something that is worth doing or enjoying in common with others”. ❖ G.D.H Cole: - “Liberty is the freedom of individual to express, without external hindrances, his personality.” ❖ McKechnie: - “Freedom is not the absence of all restraints but rather the substitution of rational ones for the irrational.” ❖ Laski: - “Liberty is the existences of those conditions of social life without which no one can in general be at his best self.” SIGNIFICANCE OF LIBERTY: ❖ Liberty does not mean the absence of all restraints. ❖ Liberty admits the presence of rational restraints and the absence of irrational restraints. ❖ Liberty postulates the existence of such conditions as can enable the people to enjoy their rights and develop their personalities. ❖ Liberty is not a license to do anything and everything. It means the freedom to do only those things which are considered worth-doing or worth-enjoying. ❖ Liberty is possible only in a civil society and not in a state of nature or a ‘state of jungle’. State of anarchy can never be a state, of Liberty. ❖ Liberty is for all. Liberty means the presence of adequate opportunities for all as can enable them to use their rights. ❖ In society law is an essential condition of liberty. Law maintains conditions which are essential for the enjoyment of Liberty by all the people of the state. ❖ Liberty the most fundamental of all the rights. It is the condition and the most essential right of the people. Liberty enjoys priority next only to the right to life. In contemporary times, the positive view of liberty stands fully and universally recognized as the real, accepted, and really productive view of Liberty. 38 Study Material :3nd BALLB, Political Science-III- State and Political Obligations CLASSIFICATION – TYPES - KINDS OF LIBERTY 1. Natural Liberty, 2. Social / Civil Liberty 3. Moral Liberty. 4. Social / Civil liberty if further classified in to: - a. Personal liberty b. Political Liberty c. Economic Liberty d. Domestic Liberty e. National Liberty f. International Liberty 1. NATURAL LIBERTY: It implies complete freedom for a man to do what he wills. In other words, it means absence of all restraints and freedom from interferences. It may be easily understood that this kind of liberty is no liberty at all in as much as it is euphemism for the freedom of the forest. What we call liberty pertains to the realm of man’s social existence. This kind of liberty, in the opinions of the social philosophers like Hobbes, Locke and Rousseau was engaged by men living in the “state of nature” – since where there was not state and society. This kind of liberty is not possible at present. Liberty cannot exist in the absence of state. Unlimited liberty might have been engaged only by few strong but not all. 2. SOCIAL/CIVIL LIBERTY: It relates to man’s freedom in his life as a member of the social organization. As such, it refers to a man’s right to do what he wills in compliance with the restraints Imposed on him in the general 39 Study Material :3nd BALLB, Political Science-III- State and Political Obligations interest. Civil or social liberty consists in the rights and privileges that the society recognizes and the state protects in the spheres of private and public life of an individual. Social liberty has the following sub categories: a. Personal liberty: it is an important variety of social liberty. It refers to the opportunity to exercises freedom of choice in those areas of a man’s life that the results of his efforts mainly affect him in that isolation by which at least he is always surrounded. b. Political Liberty: It refers to the power of the people to be active in the affairs of the state. Political liberty is closely interlinked with the life of man as a citizen. Simply stated political liberty consists in provisions for universal adult franchise, free and fair elections, freedom for the avenues that make a healthy public opinion. As a matter of fact, political liberty consists in curbing as well as constituting and controlling the government. c. Economic Liberty: It belongs to the individual in the capacity of a producer or a worker engaged in some gainful occupation or service. The individual should be free from the constant fear of unemployment and insufficiency. d. Domestic/ Family Liberty: It is sociological concept that takes the discussion of liberty to the sphere of man’s family life. It implies that all associations within the state, the miniature community of the family, is the most universal and of the strongest independent vitality. Domestic liberty consists in: - Rendering the wife a fully responsible individual capable of holding property, suing and being sued, conducting business on her own account, and engaging full personal protection against her husband. It is establishing marriage as far as the law is concerned on a purely contractual basis, and leaving the sacramental aspect of marriage to the ordinance of the religion professed by the parties and Seeing the physical, mental and moral care of the children. e. National liberty: It is synonymous with national independence. As such, it implies that no nation should be under subjection of another. National movements or wars of independence can be identified as struggles for the attainment of national liberty. So national liberty is identified with patriotism. 40 Study Material :3nd BALLB, Political Science-III- State and Political Obligations f. International Liberty: It means the world is free from controls and limitation, use of force has no value. Dispute can be settled through peaceful means. Briefly all countries in the world will be free of conflicts and wars. In the international sphere, it implies renunciation of war, limitation on the production of armaments, abandonments of the use of force, and the pacific settlement of disputes. The ideal of international liberty is based on this pious conviction to that extent the world frees itself from the use of force and aggression it gains and peace is given a chance to establish itself. g. Moral Liberty: This type of freedom is centered in the idealistic thoughts of thinkers from Plato and Aristotle in ancient times to Rousseau, Kant, Hegel, Green and Banquet in modern times. Moral liberty lies in man’s capacity to act as per his rational self. Every man has a personality of his own. He seeks the best possible development of his personality. At the same time, he desires the same thing for other. And more than this, he pays sincere respect for the real worth and dignity of his fellow beings. It is directly connected with man’s self – realization. TWO ASPECTS OF LIBERTY 1. Positive Liberty 2. Negative Liberty 1. Positive Liberty: - It does not consist merely in the removal of restraints. Liberty is best realized in the enjoyment of certain positive opportunities that are necessary for the development of personality. Positive liberty consists in providing opportunities to the individual where he is incapacitated due to socio-economic conditions. Liberty in its positive aspect means removal of those constraints which obstruct the individual in his pursuit of happiness. Rights are a necessary condition for liberty. The state must, therefore, regulate act

Political Science 3: State and Political Obligations PDF

Document Details

Tags

Related

Summary

Full Transcript

Upgrade to continue