The Bill has not been enacted into Act

The appointment was to be made by President on the recommendation of the selection committee consisting of seven members. The Vice-President would be the Chairman of this selection committee. The Bill has not been enacted into Act. The establishment of Ombudsman in India is the demand of time. The consciousness of the existence of Ombudsman will make the administration more sensitive to the public opinion and to the demands of fairness. •It is better to give Constitutional status to the institution of Ombudsman. •The functioning of the proposed institution of Lokpal may be greatly improved by securing for him a constitutional position like the Election Commission under Article 324.It must be noted that though the Ombudsman may take pressure off the courts and prevent legal principles being strained, yet he is not a panacea for all the evils of bureaucracy. His function is to tidy up and improve administration. His success depends on the existence of a reasonably well-administered State. He cannot cope with the situation where the administration is riddled with patronage and corruption. (Prof. Gellhorn quoted by R. L. Narasimahan in “The Indian Ombudsman Proposal: A Critique”, law and the Commonwealth P. 35. For an exhaustive analysis see M. P. Jain: lokpal: Ombudsman in India, (1970); P. K. Tripathi:Lokpal: The proposed Indian Ombudsman, 9 JILI 135 (1967) and Rajeev Dhawan: Engrafting Ombudsman Idea on a Parliamentary Democracy-A Comment on Lokpal Bill, 1977, 19 JILI 257 (1977). Though the birth of an Ombudsman in the Centre is still doubtful, but for the States it has become a cherished institution.The institution of Lokayukta is functioning in 13 States. These States are:Andhra Pradesh, Assam, Bihar, Gujrat, Himachal Pradesh, Karnataka,Madhya Pradesh, Maharashtra, Rajasthan, Uttar Pradesh, Orissa,Punjab and Haryana.In Tamil Nadu and Jammu & Kashmir different investigating agencies are functioning [see the Tamil Nadu Public Men (Criminal Misconduct)Act, 1973 and the Jammu & Kashmir Government Servants (Prevention of Corruption) Act, 1975]. A similar proposal is pending in the State of Kerala [See Public Men (Investigation About Misconduct) Bill, 1977].Delhi has also established the institution of Ombudsman. Working of Lokayuktas in the State The fact of the establishment of the institution of Ombudsman in States proves beyond doubt that the assumption of accepting the “system of responsible government” and the consequential “ministerialresponsibility” as a means of providing continuous oversight over theadministration is not wholly correct. A Lokayukta can be much more effective than a member of Parliament or State Legislature because of his freedom from political affiliation land because of access to departmental documental. The following tables would show the working of the Lokayuktas in various states.(As quoted in I. P. Messey ‘s book on adm.law.ed. 2001) State of Assam Year Complaints Total Complaints Balance receivedB. FComplaints disposed of 1990 642481137 1991 3714718434150 1992 150240390115275 1993 275188463105358 1994 35665421256165 State of Andhra Pradesh Nov.15,1993 33.339 33.339 32.921418 Dec.1994 State of Bihar1991 - 1943 1943 1204 739 1992 739 2926 3665 1721 2944 1993 2944 3156 6100 2278 3822 1994 3822 3760 7582 2653 4929 State of Himachal Pradesh 1991 38 25 63 31 32 1992 32 27 59 39 20 1993 20 28 48 28 20 1994 20 48 68 40 8 State of Kerala 1992 28 11 39 14 25 1993 25 12 37 9 28 Present Lokayukta three member Commission assumed charge on March 11, 1992. Four cases in 1992 and three cases in 1993 stayed by the High Court. State of Madhya Pradesh 1991-92 2417 737 3154 817 2337 1992-93 2337 1045 4382 1269 2113 1993-94 2113 892 3005 786 2219 State of Maharashtra 1991 3255 8760 12,015 8436 3579 1992 3579 8709 12,288 8142 4146 1993 4146 9038 13,184 8942 4242 1994 4242 9613 13,855 9267 4588 Though the above statistics are incomplete, as they do not give the necessary details about all the aspects of the working of the institution of the institution of Lokayukta in the States, yet a few generalizations may still be made. It is clear beyond doubt that the number of complaints received by the Lokyuktas is constantly increasing. But a large number of them are fielded because of various reasons, which may include:Lack of jurisdiction,Triviality,Baseless ness,Anonymity or Pseudonym, etc.This indicates that the people while filing complaints have not acted with restraint and responsibility. Another important reflection from the above tables is that the cases in which grievances were redressed is highly negligible. This establishes at the practical ineffectiveness of this institution in the Indian situation was lack of administrative cooperation and the apathy of political high-up is significantly marked. However, it has no reflection on the Lokayukta therapy if properly administered. Much information is not available about the types of complaints received by the Lokayuktas in various States but whatever information is available clearly indicates that the main areas of grievance include police action or inertia, prison torture, mala fide exercise of power and demand or acceptance of illegal gratification. A survey of state enactments relating to Lokayukta indicates that there is no uniformity in the provisions of these enactments. In some states, grievances against administration are within the jurisdiction of Lokayukta, while in other states such grievances are kept out of its jurisdiction. In some enactments jurisdiction of Lokayukta extends to only a limited number of public functionaries while in others even vice-chancellors and Registrars of the Universities have been brought under its jurisdiction. In some states the Chief Minister has been brought within the purview of the Act, while in some cases he is not. Similar is the cases with the members of the legislatures. There is no uniformity in the qualification, emoluments. allowance, status and powers of Lokayukta. Only in some enactments power of search and seizure and power to take action suo motu have been given to Lokayukta. in some states budget of the Lokayukta office is charged on the consolidated funds of the state but in others it id not done. Power to punish for its contempt is conferred upon the institution of Lokayukta in some states only. In the same manner only a few states have put independent investigative machinery at the disposal of Lokayukta. in some states Lokayukta has been given some other additional functions to perform also in order to make the institution cost- effective. Besides these, there are various other matters where there is no uniformity in state enactments. Institution of Lokayukta has not been given any constitutional status, hence, its existence and survival completely depends at the sweet-will of the state government. For political reasons State of Orissa issued an ordinance in 1992 for the abolition of Lokayukta institution. It for same reason Haryana repealed Lokayukta Act in 1999. It is tragic that in some states this institution was established not for prevention of corruption but for harassing and intimidating political opponents and for protecting the ruling elite. it is for this reason that the government are keen that the lokayukta should be their own nominee. Supreme Court had to quash the appointment of Lokayukta of Punjab, Justice H. S. Rai, because the Chief Justice of the High Court had not been consulted. In the same manner Justice vanish was removed from the office of Lokayukta of Haryana by repealing the Act because the Act had made removal of Lokayukta cumbersome by the outgoing government. This is a dangerous sign when a good institution is being allowed to be destroyed in party politics. Whether the recommendations of the Lokayuta or Upa-Lokayukta are mere recommendations or have a binding effect is a question, which deserves serious consideration. The Apex Court in Lokayukta/Upa-Lokayukta v. T. R. S. Reddy32 (1997) 9 SCC 42.) opined that since the Lokayuktas/Upa-Lokayuktas are high judicial dignitaries it would be obvious that they should be armed with appropriate powers and sanctions so that their opinions do not become mere paper directions. Proper teeth and claws so that the efforts put in by them are not wasted and their reports are not shelved. CENTRAL VIGILANCE COMMISSION (CVC)In any system of government, improvements in the grievance redressal machinery have always engaged the attention of the people. This system no matter, howsoever, ineffective completely fails when inertia and corruption filter from the top. It was against this backdrop that the establishment of the Central vigilance Commission (CVC) was recommended by the Committee on Prevention of Corruption, the Santhanam Committee. The committee now after the name of its Chairman was appointed in 1962. It recommended the establishment of a Central Vigilance Commission as the highest authority at the head of the existing anti-corruption organization consisting of the Directorate of General Complaints and Redress, the Directorate of Vigilance and the Central Police Organization. The jurisdiction of the Commission and its powers are co-extensive with the executive powers of the Center. The government servants employed in the various ministries, and departments of the Government of India and the Union territories, the employees of public sector undertakings, and nationalized banks, have been kept within its purview. The Commission has confined itself to cases pertaining only: (i) to gazetted officers, and (ii) employers of public undertakings and nationalized banks, etc. drawing a basic pay of Rs. 1,000 per month and above. Service Conditions and Appointment of Vigilance Commissioner : -The Central Vigilance Commissioner is to be appointed by the President of India. He has the same security of tenure as a member of the Union Public Service Commission. Originally he used to hold office for six years but now as a result of the resolution of the Government in 1977, his interest for not more than two years. After the Commissioner has ceased to hold office, he cannot accept any employment in the Union or State Government or any political, public office. He can be removed or suspended from the office by the President on the ground of misbehavior but only after the Supreme Court has held an inquiry into his case and recommended action against him. Procedure:The Commission receives complaints from individual persons. It also gather information about corruption and malpractices or misconduct from various sources, such as, press reports, information given by the members of parliament in their speeches made in parliament, audit objections, information or comments appearing in the reports of parliamentary committees, Audit Reports and information coming to its knowledge through Central Bureau of Investigation. It welcomes the assistance of voluntary organizations like Sadachar Samiti and responsible citizens and the press. The Com mission often receives complaints pertaining to maters falling within the scope of the State Governments. Where considered suitable, such complaints are brought to the notice of state vigilance commissioners concerned for necessary action. Similarly, they forward complaints received by the State V igilance Commission in regard to matter falling within the jurisdiction of the Central Government, to the Central Vigilance Commission for appropriate action.The Central vigilance Commission has the following alternatives to deal with these complaints: a)It may entrust the matter for inquiry to the administrative Ministry/Department concerned. b)It may ask the Central Bureau of Investigation (C. B. I) to make an enquiry. c)It may ask the Director of the C. B. I to register a case an investigate it. It had been given jurisdiction and power to conduct an enquiry into transaction in which publics servant are suspected of impropriety and corruption including misconduct, misdemeanor, lack of integrity and malpractices against civil servants. The Central Bureau of Investigation (CBI) in its operations assisted the Commission. The CVC has taken a serious note for the growing preoccupation of the CBI with work other than vigilance. Thus when the CBI is extensively used for non-corruption investigation work such as drug- trafficking, smuggling and murders it hampers the work of the CVC. But how effective this institution has proved in uprooting corruption depends on various factors, the most important being the earnestness on the part of the government, citizens and institutions to clean public life . In its efforts to check corruption in public life and to provide good governance the Apex Court recommended measures of far-arching consequences while disposing a public interest litigation petition on the Jain Hawala Case . Three-Judge Bench separated four major investigating agencies from the control of the executive. These agencies are: Central Bureau of Investigation; Enforcement Directorate;Revenue Intelligence Department and The Central Vigilance Commission.The Court has shifted the CBI under the administrative control of the CVC.The Central Vigilance Commission, until now, was under the Home Ministry entrusted with the task of bringing to book cases of corruption and sundry wrongdoings and suggesting departmental action. Now the CVC is to be the umbrella agency and would coordinate the work of three other investigating arms.In order to give effect to the view of the Supreme Court, the movement issued an ordinance on August 25, 1998. However, this measure had diluted the views of the Supreme Court by pitting one view against the other. Therefore,what ought to have been visualized as a reformative step had begun to seen as a cleaver bureaucratic legalese.It was when the Supreme Court expressed concern over these aspects of the Ordinance in the hearing relating to its validity that the government decided to amend the Ordinance and thus, on October27, 1998 Central Vigilance Commission (Amendment) Ordinance was issued. The Commission was made a four-member body and its membership was opened to other besides bureaucrats. In the same manner the single directive of prior permission was deleted and the membership of Secretary Personnel, Government of India was deleted. It is too early to comment on the functioning of the reconstituted statutory Central Vigilance Commission but one thing is certain that no commission can root out corruption, which has sunk so deep in the body politic. It can only act as a facilitator and propellant. Central Bureau of Investigation Apart from vigilance organization in every ministry and department, the centralized agency fro anti-corruption work viz. the Central Bureau of Investigation, which functions administratively under the Department of Personnel and administrative Reforms. The latter formulates all policy matters pertaining to vigilance and discipline among public servants. It also coordinates the activities of various heads of departments and functions as the nodal authority in the matter of administrative vigilance. It also deals with (i) vigilance cases against the officers belonging to the Indian Administrative Service and the Central Secretariat Service (Grade-I) and above of the service); and administrative matters connected with the Central Bureau of Investigation and the Central Vigilance Commission as also with the policy matters relating to powers and functions of the Commission. The role of the Central Bureau of Investigation may be shortly described as follows: 1)It can take up investigations against the higher levels and in complex cases. 2)I t is resourceful and can get material from various sources which may not be available to normal departmental machinery. 3)Even if its cases in the early year proved to be weak, it is now encouraging to see that the Central Bureau of Investigation takes up only those cases for prosecution which are sound and strong. The most important need in the interest of efficiency and progress is to fix a time schedule for a case to demarcate clear fields of responsibility between the Central Bureau of Investigation and the Central Vigilance commission. RIGHT TO KNOW Government openness is a sure technique to minimize administrative faults. As light is a guarantee against theft, so governmental openness is a guarantee against administrative misconduct.Openness in government is gaining lot of foothold in recent years. It is a topic of growing importance in administrative law.The goal of open government is being pursued by U.S.A, Aaustralia Newzealand and other liberal democracies of the world. Openness in government is bound to act as a powerful check on the abuse of power by the government. The objective of openness in government is ensured by giving access to by the individual to governmental information so that governmental activity is not shrouded in mistery and secrecy. American Constitution, the oldest written constitution of the world, does not contain specific right to information. However, the US Supreme Court has read this right into the First amendment of the Constitution and granted access to information where there is a tradition of openness to information in question and where access contributes to the functioning of the particular process involved . Administrative Procedure Act, 1946 (APA) was the first enactment, which provided a limited access to executive information. The Act was vague in language and provided many escape clauses. Taking these deficiencies into consideration the Congress in 1966 passed Freedom of Information Act, 1966 , which gives every citizen a legally enforceable right of access to government files and documents, which the administrators may be tempted to keep confidential. If any person id denied this right, he can seek injunctive relief from the court. 1.Information specifically required by executive order to be kept secret in the interests of national defense or foreign policy. 2.Information related solely to internal personal use of the agency 3.Information specifically exempted from disclosure by statute. 4.Information relating to trade, commercial or financial secrets. 5.Information relating to inter-agency on intra-agency memorandums or letters. 6.Information relating to personal medical files. 7.Information complied for law enforcement agencies except to the extent available by law to a party other than the agency. After investigating the operation of this Act, Congress in 1974 amended it. Amendments provided: (i)For disclosure of “any reasonably segregably portion” of otherwise exempted records; (ii)For mandatory time limit of 10 to 30 days for responding to information requests (iii)For rationalized procedure for obtaining information, appeal and cost. Statistics show that maximum (80%) use of this act is being made by business executives their lawyers an editors, authors, reporters and broadcasters whose job is to inform the people have made very little use of this Act. The judiciary In USA shares the same concern of the Congress, which is reflected in the Freedom of Information Act, 1966. Justice Douglas observed: “Secrecy in government is fundamentally anti- democratic, perpetuating bureaucratic errors. Open discussing based on full information debate on public issues is vital to our national health.” In order to provide access to Federal government meetings, the Congress passed Sunshine Act, 1977 In England the thrust of the legislations on ‘information’ but secrecy the present law is contained in the Official secrets acts, 1911, 1920 and 1939. Keeping in view the desirability of openness of governmental affairs in a democratic society, the Franks Committee recommended a repeal Section 2 of the 1911 Act and its replacement by the Official information Act. The proposals restricted criminal sanctions to defined areas of major importance: wrongful disclosures of (i)information of major national importance in the fields of defense security foreign relations, currency and reserves, (ii)cabinet documents, and (iii)information facilitating criminal activity or violating the confidentiality of information supplied to the government by or about individuals, and these of information for private gains. In 1993, the government in England published a white paper on ‘open government’ and proposed a voluntary code of practice of providing information. This code is voluntary and thus cannot be equated to statutory law on access to information. The local government (Access to Information) Act, 1985 is the only statutory law providing legal right to information against local’s governors. The Act provides for greater public access to meetings and documents of the major local councils. However, this Act leaves much to the discretion of the councils and mentions at least fifteen categories of exempted information. Individual seeking information has no adequate legal redress. It is certainly strange that a democratic country should be so secretive. It appears that this situation cannot last long because of mounting popular pressure and citizens charter .The Official Secrets Act, 1923 in India makes all disclosures and use of official information a criminal offence unless expressly authorized. Courts in India and England have rejected the concept of conclusive right of the government to withhold a document. But still there is too much secrecy, which is the main cause of administrative faults. India Constitution does not specifically provide for the right to information as a fundamental right though the constitutional philosophy amply supports it. In the same manner arts. 19 (a) freedom of thought and expression and 21 right to life and personal liberty would become redundant if information is not freely available Art. 39(a), (b), (c) of the Constitution make provision for adequate means of livelihood, equitable distribution of material resources of the community to check concentration of wealth and means of production. As today information is wealth, hence, need for its equal distribution cannot be over emphasized. Taking a cue from this Constitutional philosophy, the Supreme Court of India found a habitat for freedom of information in Arts. 19(a) and 21 of the Constitution. It is heartening to note that the highest Bench in India while recognizing the efficacy of the ‘right to know’ which is a sine qua not of a really effective participatory democracy raised the simple ‘right to know’ to the status of a fundamental right. In S. P. Gupta v. Union of India, the court held that the right to know is implicit in the right of free speech and expression guaranteed under the Constitution in Article 19 (1) (a). The right to know is also implicit in Article 19(1)(a) as a corollary to a free press, which is included in free speech and expression as a fundamental right. The Court decided that the right to free speech and expression includes (i)Right to propagate one’s views, ideas and their circulation (ii)Right to seek, receive and impart information and ideas (iii)Right to inform and be informed (iv)Right to know (v)Right to reply and (vi)Right to commercial speech and commercial information. Furthermore, by narrowly interpreting the privilege of the government to withhold documents under Section 123 of the Evidenced Act, the Court has widened the scope for getting information from government file. In the same manner by narrowly interpreting the exclusionary rule of art. 72 (2) of the Constitution, the Court ruled that the Court could examine the material on which cabinet advice to the President is based. However, this judicial creativity is no substitute for a constitutional or a statutory right to information. With the judicial support, the right to information has now become a cause of public action and there is a strong demand for a formal law on freedom of information. States of Goa, Tamil Nadu and Rajasthan have, since 1997, enacted laws ensuring public access to information, although with various restraints and exemptions. There is a pressure on the Central Governments also to enact law-granting right to information. Various drafts were submitted fro consideration by empowered bodies like the Press Council of India and by independent citizens’ groups. but the Freedom of Information Bill, which has finally reached Parliament in 1999, has disappointed almost all who campaigned for its introduction. This Press Council of India Bill, 1996 had provided three exemptions, which included: (1) Information, disclosure of which will have prejudicial effect on sovereignty and integrity of India, security of State and friendly relations with foreign states, public order, investigation of an offence which leads to incitement to an offence; (2) Information which has no relationship to any public activity and would constitute a clear and unwarranted invasion of personal privacy; (3) Trade and commercial secrets protected by law. However, the information, which cannot be denied to Parliament or State Legislator, shall not be denied to any citizen. Present government bill tightens all these exemptions while adding several more. One such exemption is in respect of cabinet papers, including records of deliberations of Council of Ministers, Secretaries and other officers. This would make the conduct of all officers of stat immune from public scrutiny. Another exemption relates to the legal advice, opinion or recommendations made by an executive decision or policy formulation this confers too far-reaching immunity on officials. However, in one respect the bill marks a definitive advance over the initial draft in doing away with the exemption on information connected to the management of personnel of public authorities. This makes information available relating to recruitment process on public agencies, which is often riddled with corruption and nepotism. The bill is highly inadequate in respect of credible process of appeal and penalties for denial of information. The jurisdiction f the courts ha been ruled out since the bill makes provision for an administrative appeal only. The officers who would deal with the requests for information are totally unencumbered by the prospects of any penalty for willful denial of any access. Nevertheless, in spit of these limitations, the proposed Bill is a right step in the right direction. Right to know also has another dimension. The Bhopal gas tragedy and its disaster syndrome could have been avoided had the people known about the medical repercussions and environmental hazards of the deadly gas leaked from the Union Carbide chemical plant at Bhopal. In India bureaucrats place serious difficulties in the way of the public’s legitimate access to information. The reason for this can be found in colonial heritage. Today in India secrecy prevails not only in every segment of governmental administration but also in public bodies. Statutory or non-statutory. There is a feeling everywhere that it pays to play safe. Even routine reports on social issues continue to be treated as confidential long after the you are submitted. What is given out is dependent on the whims of a minister or a bureaucrat. The result is that there is no debate on important matters and no feedback to the government on the reaction of the people. The stronger the efforts at secrecy, the greater the chance of abuse of authority by functionaries. There is need for administrative secrecy in certain cases. No one wants classified documental concerning national defiance and foreign policy to be made public till after the usual period of 35 years is over. Secrecy may also be claimed for other matters enumerated in the Freedom of Information Act, 1966. But the claims of secrecy, generally by the government and public bodies, may play havoc with the survival of democracy in India. Some legislation, therefore, is necessary which recognizes the right to know, makes rules fro the proper ‘classification of information’ and makes the government responsible to justify secrecy. This will not only strengthen the concept of open government, but also introduce accountability in the system of government., Outside the government, there is no justification for secrecy in public undertakings except within a very limited area of economic espionage. Sometime there appears to be a conflict between the right to know and the right to privacy of public figures through whom the machinery of government moves. Our experience in India suggests that a public figure should not be allowed protection against exposure of his private life, which has some relevance to the public duties on the plea that he has a right to privacy. Right to privacy should not be allowed as a pretext to suppress information. DISCRETION TO DISOBEY In a country like India where people have no right to know, the judicial process grinds slow and the other grievance procedures are feeble and inefficient, perhaps the discretion to disobey may provide an effective check on the operation of the governmental machinery in reckless manner. It is gratifying to note that at a time when we are not only governed but administered, the Supreme Court has rightly taken the right foot forward in allowing discretion to disobey void orders. The decision of the Supreme Court in Nawab-Khan Abbaskhan v. State of Gujarat ,(AIR 1974 SC 1471).allows every person the discretion to make his own decision and disobey an order of the government,if in his opinion it is void. If he turns out to be wrong in his decision, of course,he is answerable, but if he is right he is not answerable in any way.In this case, the petitioner was prosecuted under Section 142 of the Bombay Police Act, 1951 because he had violated the externment order passed by the Police Commissioner. The trial court acquitted the accused but on appeal by the State, the High Court reversed the order of the lower court. The important fact in this whole process was that the accused had challenged the validity for fight externment order before the High Court under Article 226 during the pendency of his criminal trial and the High Court quashed the order on July 16,1968. The accused took the defiance in criminal appeal proceedings before the High Court that since the order becomes void ab intio and they’re being no externment order in the eye of the law there is no offense when he re-entered the forbidden area on September 17, 1967. The question whether a person can disobey the order with impunity if subsequently that order is quashed was answered by the High Court in the negative. On appeal the Supreme Court reversed the decision of the High Court and held that the externment order is of no effect an its violation is no offence. The individual decision-making by private persons of public actions may be considered as a very radical approach but the alternative is a travesty of constitutional guarantees. Grave consequences involved in allowing discretion to disobey someone may argue may first lead to anarchy and then to tyranny. What is the remedy available to a person who has been subjected to an illegal order? Our legal system does not recognize the right to compensation for damage suffered by a person in obeying a valid order Public Enterprises. With the steady increase in state functions corresponding to the change in the philosophy of state activity (from laissez faire to social welfare), it is generally an accepted notion n modern states, especially the developing, that ownership of most of the natural resources and capital heavy industries should increasingly rest in the state. In developing countries, state intervention in economic and industrial enterprises has become almost compulsory for various reasons. The major reasons for state intervention in economic activity are: • to build up an industrial infrastructure and raise productivity; • increase employment and general standard of living by accelerating national growth and development; •to render needed services and cater to public utilities like power, transportation and communication which are capital heavy investments and strictly unprofitable under private enterprises; • to provide sources of credit to finance agricultural and industrial product ional and trade; and Module – 1 159 • to reduce dependence on foreign capital and aid in the long run. Most developing countries suffer from acute lack of capital, entrepreneurial skills and regional imbalances. The two main aims of all developing societies are to raise levels of productivity and strive towards creation of an equalitarian and just social order. The immensity of the socio-economic problems of these countries makes state intervention inevitable and in fact desirable. The state becomes a vital partner in industrial development and promotion of industrial enterprises both as a matter of national policy and to ensure public control over certain sectors of the economy. In India, the Industrial Policy Resolution of 1956 has laid down the basic principle that will govern the state’s approach towards industrial development t. The approach derives its base from the Directive Principles of State Policy contained in the Constitution and from the adoption by Parliament in December 1954 of the socialist pattern of society as the objective o four social and economic goals and laws. The Industrial Policy Resolution of 1956 stated that the need for rapid planned development required that all industries of basic and strategic importance, or in the nature of public utility services, should be in the public sector. Consequently, their number has steadily increased with every plan, and by the end of Third Plan period, various State governments owned or held majority shares in about 175 Public Undertakings, with an estimated total investment of nearly Rs. 2,000 crores. Public enterprises in our country cover a range of activities that is at once vast and varied. They are engaged: • directly or indirectly in advancing loans; • regulating trade; • organizing promotional land development activities; • manufacturing heavy machinery, machine tool; • instruments, electrical equipment, chemicals, drugs and fertilizers; • prospecting and drilling for oil laden refining crude oil; • operating air, sea land road transport; • mining of coal and mineral ores; • smelting and casing of steel and other metals; • production and distribution of mills, trading, markets, hotels, etc. A public undertaking, for purposes of examination by the Estimates Committee, was defined by the Speaker of the Lok Sabha as follows, “Public Undertaking means an organization endowed with a legal personality and set up by or under the provisions of a statute for undertaking on behalf of the government of India an enterprise of industrial, commercial nature or special services in the public interest and possessing a large measures of administrative and financial autonomy.” This definition obviously is concerned only with the public undertakings under the union Government and leaves out of account public undertakings in the States. A more comprehensive definition has been given by S. S. Khera, “By State economic activity carried on by the central government or by a state government or jointly by the central government and state government, and a in each either solely or in association with private enterprise so long as it is managed by a self-contained management.” S. S. Khera gives six good reasons to justify the Government’s playing an active role in economic development: i)Modern economy has to be a planned economy, and it has come to be widely recognized and the prejudice against it is fast dying out even in the so- called capitalist or free-economy countries. Planning is of particular significance to an under-developed country like India, where a lot has to be achieved with limited resources and within a limited time. Modern planned economy has, thus, become inevitable; and in a planned economy, the national responsibility of planning is something that cannot be assumed or discharged by any authority other than the Government, which the people have elected to office to look after the affairs of the country. ii)In a country like India where the industrial base has not been built up sufficiently, and the capital investment funds still need a great deal of building up and garnering, state intervention becomes imperative. iii)Government, such as, the present Government in India, which is committed to the objective of a socialist society, is increasingly compelled to enter directly into industrial and commercial activity. iv)A Government politically committed to certain-social objective, may well decide that in order to achieve certain minimum per capita income it may be necessary to set up, to evolve and to operate a pattern of prices, subsidies, incentives or disincentives of different kinds in order to influence the consumption pattern. v)By active participation in business; the Government has sought to tap gold mines of industry and commerce for the funds needed to discharge the new and heavier burdens it now shoulders. vi)Large-scale participation by government in industrial and commercial activity is bound to augment the national dividend. Organization of Public Undertakings. There is no one ideal form of organizing public enterprises In general, three main forms of organization, each with significant variations, are now utilized for the administration of public enterprises, namely Departmental Concerns, Government Companies and Public Corporations. 1. Departmental Concerns . Initially, no distinction was drawn between public enterprises and traditional government functions. Thus, the oldest state enterprises, such ass the postal, telegraph and telephone service, and railways were organized financed and controlled as any other government department. This form of organization is still commonly employed when the main purpose of the enterprise is to provide revenue. 2. Government companies . The Joint-Stock Company form has been used extensively in recent years in respect of manufacturing activities in the public sector. Both, the Central and the State Governments seem to favor it. This type is also known as mixed ownership companies. It should be remembered that the form does not describe a legal or organizational pattern but an economic concept. It includes various forms of joint enterprises shared between the State and private enterprises. The latter may be national or foreign. They may represent the shares of individual firms participating in the venture or the subscription of members of the public at large. According to the Report of the Study Team on Public Sector Undertakings (of the Administrative Reforms Commission) central and provincial characteristics of this form are as follows; a) It has most of the features of a private limited company; Module – 1 162 b) The whole of the capital stock or 51 per cent or above of it, is owned by the Government; c) All the directors, or a majority of them, are appointed by the Government depending upon the extent to which private capital is participating in the enterprise; d) It is a body corporate, created under a general law, viz., the Companies Act; e) It can sue and be sued, enter into contract, and acquire property in its own name; f) Unlike the public corporation, it is created by an executive decision of the Government without Parliament’s specific approval having been obtained, and its Articles of association, though conforming to an Act are drawn up and are revisable by the government; g) Its funds are obtained from the Government and, in some cases, from private shareholders, and through revenues derived from sale of its goods and services; h) It is generally exempt from the personnel, budget, accounting and audit laws and procedures applicable to Government departments; and i) Its employees, excluding the deputations, are not civil servants. 3. Public Corporations . During the last 40 years or so, a new form of organization for managing public enterprises has been evolved in the shape of public corporation, which has been described by W. A. Robson as “The most important constitutional innovation of this century.” The principal characteristics of the Public Corporation, according to the Rangoon Seminar Report, are as follows; i) It is wholly owned by the State. Module – 1 163 ii) It is generally created by, or pursuant to, a special law defining its powers, duties and immunities and prescribing the form of management and its relation to established departments and ministries. iii) As a body corporate, it is a separate entity for legal purposes and can sue and be sued, enter into contracts and acquire property its own name. Corporations conducting business in their own names have been generally given greater freedom in making contracts and acquiring and disposing of property in its own name. Corporations conducting business in their own names have been generally given greater freedom in making contracts and acquiring and disposing of property than ordinary government departments. iv) Except for government appropriations to provide capital or a to cover losses, a public its funds from borrowing either from the Treasury or the public, or from revenues derived from the sale of goods and services. It is authorized to use and re-use its revenues. v) It is generally exempted from most regulatory and prohibitory statues applicable to expenditure of public funds. vi) It is ordinarily not subject to the budget, accounting and audit laws, and procedures applicable to non-corporate agencies. vii) In the majority of cases, employees of Public Corporations are not civil servants, and are recruited and remunerated under terms and conditions which the Corporation itself determines. In view of the above discussion it becomes clear that these public corporations are treated both as public authorities and as commercial concerns. The principal benefits of the Public Corporation as an organizational device are its freedom from unsuitable government regulations and controls and its high degree of operating and financial flexibility. In this form, one discerns a balance between the auto my and flexibility enjoyed by private enterprise and the responsibility of the public as represented by elected members and legislators. Module – 1 164 In the famous word so president Franklin D. Roosevelt, the Public Corporation “Is clothed with the power of government but possessed of the flexibility and initiative of a private enterprise.” However, this form, in its turn, has given rise to other problems, namely the difficulty of reconciling autonomy of the corporation with public accountability. That the Public Corporations cannot be made immune from ministerial control land direction is universally conceded. But how to do it without infringing their corporate autonomy has come into direct conflict with the urgent need for bringing the operations of this Corporation into harmony with related actions of the government. Vacuum Removal from the so-called political pressures may mean, in fact, that the significant political power is being placed in the hands of a small unrepresentative, and in extreme cases, possibly even a self-perpetuating group controlling the Public Corporations. To sum up, each of these three types of organization has its own strong and weak points. Thus, A. D. Gorwala has held the views that the departmental management was in many ways a direct negation of the requirements of autonomy and militated against flexibility and initiative, that is sound “State enterprise tradition” It must, therefore, be a rare exception to be resorted to when dictated by the need of secrecy, strategic importance, etc. He, generally, favored the Company form for substantially commercial functions because of great flexibility. According to him , Corporation form should be used when the undertaking was to discharge what in effect were the extensions of government functions, for example, broadcasting, irrigation, etc. According to the administrative Reforms Commission’s Study Team Report, among all the three forms in which public undertakings have been organized, the Departmental form is one that is generally regarded suitable only for undertakings that provide services affecting the totality of the community or the security of the country. A Departmental form cannot provide the flexibility and autonomy that are needed for commercial and industrial enterprise. Such undertakings require a high degree of freedom, boldness and enterprise in management and must be free from the circumspection and cumbersome, time consuming and vexatious procedures of departmental administration. Both the Company form and the Public Corporation form can provide for this flexibility and autonomy. It is not, therefore, all types of understandings and under all circumstances. The choice will have to depend on the nature of the undertakings, its importance, its magnitude and investment, and the role that it is expected to play in economic development, capital formation and provision of goods and services. What is crucial is the vigilance and responsibility with which autonomy is exercised and the meticulousness and spirit of co-operation with which autonomy is respected. Some Problems for Public Corporation . Public Corporation has succeeded in solving a number of problems. At the same time, however, it has created Module – 1 165 some others. Some of the more pressing problems confronting the Public Corporations are: (a) How should we reconcile autonomy of the Public Corporations with public accountability, i.e., accountability to Parliament? (b) What should be the extent and nature of ministerial control? (c) Should there are a Standing Parliamentary Committee on public Corporations? The supreme considerations underlying the choice of Public Corporations in preference to other forms of state enterprises are autonomy of the Corporations must be scrupulously honored; the latter cannot be made wholly free from responsibility to Parliament or from ministerial control. They are accountable to Parliament at least on those matters, which lie under the control, direct or indirect, of the Minister. Parliaments certainly entitled to discuss the general policies of the Public Corporations, and the economy and efficiency of their administration. It should not, however, discuss day-to-day matters and details of administration. The need for reconciling autonomy of the Corporations with the accountability to Parliament has been repeatedly emphasized . These public corporation are treated both a public authorities and as commercial concerns. As public authorities they are subject to the normal controls of constitution and administrative laws to supervision by the minister, who in turn is answerable to Parliament, and by Courts through the control, which they exercise over administrative authorities. The test for determining the constitutional position of a Public Corporation as either a Department of Government or as a servant of the State may be summarized as below: i) If the statute in terms answers the question (as it did in the case of the Central Land Board under the Company & Town Planning Act, 1917), the need for any further enquiry s obviated. ii) In the absence of such statutory declaration or provision, the intention of Parliament as to be gathered from the provisions of the statute constituting the Corporation. Some Attributes of Public Corporation Module – 1 166 • = Vicarious Liability a Corporation. On principles of vicarious liability, corporation is liable to pay damages for wrongs done by their officers or servants. They are liable even for tort requiring a mental element as an ingredient, e.g. malicious prosecution. In India, local authorities like Municipalities and District Boards have been held responsible for the tort committed by their servants or officers. • = Grant of exemption to government companies from the application of a statutory provision does not fall foul of Art. 14 and is not discriminatory as government companies stand in a different class altogether and the classification made between government companies and others is a valid one. The Supreme Court has advanced the following justification for this view. “As far as Government undertakings and companies are concerned, it has to be held that they form a class by themselves since any profit that they may make would in the end result to the benefit to the members of the general public… The role of industries in the public sector is very sensitive and critical from the point of view of national economy…” • = The public corporation (statutory corporation) is a body having an entity separate and independent from the Government. It is not a department or organ of the Government. Consequently, its employees are not regarded as Government servants and therefore they are not entitled to the protection of Article 311. • = A public corporation is a person but not citizen. And therefore it can claim the benefit of the Fundamental Rights. • = It is to be also noted that a public corporation is included within the meaning of State under Article12. and therefore the Fundamental right can be enforced against it • = The public corporation or statutory corporations are included with the meaning of other authorities and therefore it is subject Module – 1 167 to the writ jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226. • = For the validity of the corporation contract, the requirements of a valid contract laid down in Article 299 are not required to be complied with. • = The employees of a public corporation are subject to the labour laws. • = The Government control over the financial matters relating to the public corporation provides teeth to the governmental control of the public corporations. Generally the Government is vested with the powers of controlling the borrowing expenditure and capital formation. For example, the Oil and Natural Gas Commission Act, 1956 provides that the Commission can borrow money with the prior approval of the Central Government. Similarly, the Damodar Valley Corporation Act provides that the Corporation can borrow money with the prior approval of the Central Government. The statute creating the corporation may require the corporation to submit to the Government its budget and programme for the next year. To sum up we can say that public enterprise in the near future will be subjected to the scrutiny of the consumers and Courts. Because the quality of services rendered by these enterprises to the public is a matter, which concerns consumers in many ways. It is but natural, therefore, that disputes arises between the enterprises and their employees, or between the enterprises and the public also, the courts are not averse to extending their supervisory role over these enterprises in some respects. The Supreme Court has recently underlined the principle of public accountability of these enterprises (with reference to the life Insurance Corporation) in the following words: “ Corporation which carries on the business of life insurance in the shape of a statutory monopoly is answerable to the people of India with whose funds it deals and to whose welfare it clams to cater. Module – 1 168 Suits against the Administration: State Liability A ctions of the administration. These remedies help in preventing the recurrence the extraordinary legal remedies that is available to the individual against the illegal of an illegality. However, they do not provide full redress to the aggrieved individual. Private citizens access to the ordinary courts and the ordinary legal remedies may be qualified by the existence of certain privileges and immunities enjoyed by the state. These privileges immunities though justified in the days in which they originated, are hardly justified in a democratic society. However, the state does enjoy and it may be necessary for it to enjoy certain privileges and immunities. Administrative law is engaged in the process of redefining such privileges and immunities with a view to reconciling them with the needs of modern times. The Constitution clearly says that the executive power of the Union and of each state extends to ‘the carrying on for any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose’. The Constitution therefore, provides that a Government may sue or may be sued by its name. Similar provisions to be found in the Code of Civil Procedure. The above provisions do not, however, enlarge or restrict the extent of State liability; they merely provide the method of redress. The extent of liability will be discussed separately. Privileges and Immunities of the Administration in Suits The various privileges available to the Government under various statutes are as follows: - I. Immunities from the operation of the statute. In England the rule is that its own laws do not bind the Crown unless by express provision or by necessary implication they are made binding on it. Thus in England the statutes are not binding on the crown unless by express provision or by necessary implication, they are made binding thereon. Its basis is the maxim “ the King can do on wrong. This rule was followed even in India till 1967. In India the present position is that the statute binds the State or Government unless expressly or by necessary implication it has exempted or excluded from its operation. In case the State has been exempted from the operation of the statute expressly, there is no difficulty in ascertaining whether the statute is binding on the State or not but it becomes a difficult issue in case where the State is exempted from the operation of the statute by necessary implication. However, Module – 1 169 where the statute provides for criminal prosecution involving imprisonment, the statute is deemed to be excluded from the operation of the statute necessary implication. II. Privileges and Immunities under the Civil Procedure Code, 1908. Section 80 (1) provides that no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered in the manner provided in the section. The section is mandatory and admits of no exception. Thus, the requirement of notice is mandatory. However, it is to be noted that if a public officer acts without jurisdiction, the requirement of notice is not mandatory. Its object appears to provide the Government or the public officer an opportunity to consider the legal position thereon and settle the claim without litigation. The Government may waive the requirement of notice; the waiver may be express or implied. The requirement of notice causes much inconvenience to the litigants especially when they seek immediate relief against the Government. To minimize the hardships to the litigants a new Clause (20 was inserted in S.80 of the C.P.C by the Civil Procedure Code Amendment Act, 1970. The clause provides that the Court may grant leave to a person to file a suit against the Government or a public officer without serving the two-month’s notice in case where relief claimed is immediate and urgent. Before granting this exemption the Court is required to satisfy itself about the immediate and urgent need. It is to be noted that S.80 of the C.P.C does not apply to a suit against a statutory Corporation. Consequently in case the suit is filed against the statutory Corporation. Consequently, such notice is not required to be given in cases the suit is filed against statutory Corporation. S.80 does not apply with respect to a claim against the Government before the claim Tribunal under the Motor Vehicle Act. S.80 of the C.P.C. does not apply to a writ petition against the Government or a public officer, the requirement of notice as provided under S.80 of the C.P.C is not required to be complied with. S.82 of the C.P.C. also provide privilege to the Government. According to this section where in a suit by or against the Government or the public officer, a time shall be specified in the decreed within which shall be satisfied and if the decree is not satisfied writhing the time so specified and within three months from the date of the decree. Where no time is so specified, the Court shall report the case fro the orders of the Government,. Thus a decree against the Government or a public Module – 1 170 officer is not executable immediately. The Court is required to specify the time within which the decree has to be satisfied and where no such time has been specified, three moths from the date of the decree will be taken to be the time within which is to be satisfied. If the decree is not satisfied within such time limit the Court shall report the case for the orders of the Government. III. Privileges under the Evidence Act (Privileges to withhold documents). In England the Crown enjoys the privilege to withhold from producing a document before the Court in case the disclosure thereof is likely to jeopardize the public interest. In Duncon v. Cammel Laird Co. Ltd. ( The Court held that the Crown is the sole judge to decide 1942 AC 624) whether a document is a privileged one and the court cannot review the decision of the Crown. However, this decision has been overruled in the case of Conway v. Rimmer. In this case the Court ( 1968 AC 910) has held that it is not an absolute privilege of the Crown to decide whether a document is a privileged one. The court can see it and decide whether it is a privileged one or not. In India S. 123 provides that no one shall be permitted to give any evidence derived from unpublished official records relating to any affair of State except with the permission of the officer at the Head thinks fit. Only those records relating to the affairs of the State are privileged, the disclosure of which would cause injury to the public interest. To claim this immunity the document must relate to affairs of state and disclosure thereof must be against interest of the State or public service and interest. The section is based on the principle that the disclosure of the document in question would cause injury to the public interest And that in case of conflict between the public interest and the private interest, the private interest must yield to the public interest. The Court has power to decide as to whether such communication has been made to the officer in official confidence. For the application of S.124 the communication is required to have made to a public officer in official confidence and the public officer must consider that the disclosure of the communication will cause injury to the public interest. According to S.162 a witness summoned to provide a document shall, if it is in his possession or power, bring it to the Court, not with outstanding any objective which there may be to its production or to its adm issibility. The Court shall decide on the validity of any such objection. The court, if it sees fit, may inspect the document, unless it refers to the matters of State or take other evidence to enable it to determine on its admissibility. If for such purpose it is necessary to cause any document to be translated the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the direction, Module – 1 171 he shall be held to have committed an offence under S.166 of the Indian Penal Code. S. 162 apply not only to the official documents but also to the private documents. It is for the Court to decide as to whether a document is or is not a record relating to the affairs of the State. For this purpose the Court can take evidence and may inspect the document itself. In State of Punjab v. Sodhi Sukdev Singh the court had ( AIR 1961 SC 493) the opportunity of discussing the extent of government privilege to withhold documents where twin claims of governmental confidentiality and individual justice compete for recognition. The court was very alive to the constraints of this privilege on private defense, therefore Gajendragadkar, J. delivering the majority judgment cautioned that care has to be taken to see that interests other than that of the public do not masquerade in the garb of public interest and take undue advantage of the provision of Section 123. In order to guard against the possible misuse of the privilege, the court also developed certain norms. First, the claim of privilege should be in the form of an affidavit, which must be signed by the Minister concerned, or the Secretary of the Department. Second, the affidavit must indicate within permissible limits the reasons why the disclosure would result in public injury, and that the document in question has been carefully read and considered and the authority is fully convinced that its disclosure would injure public interest. Third, the if the affidavit is found unsatisfactory, the court may summon the authority for cross-examination. Working the formulations still further, the court in Amar Chand v. Union of India disallowed the privilege where there was (AIR 1964 SC 1658) evidence to show that the authority did not apply its mind to the question of injury to the public interest which would be caused by the disclosure of the document. In Indira Nehru Gandh v. Raj Narain . (1975 the Court compelled the production of Blue Supp SCC 1: AIR 1975 SC 2299) Books of the polic and disallowed the claims of privilege. In State of Orissa v. Jagannath Jena, the Supreme Court again ((1972) 2 SCC 165) disallowed the privilege on the ground that the public interest aspect had not been clearly brought out in the affidavit. In this case, the plaintiff wanted to see endorsement on a file by the Deputy Chief Minister and the I. G. of Police. The law on Government privileges took a new turn in S.P. Gupta v. Union of India The question in the present case was ( AIR 1982 SC 149) whether the correspondence between the Law Minister and these Chief Justices ought to be produced in the Supreme Court, so, as to enable the court to judge the question of validity of the non-continuance of an Module – 1 172 Additional Judge in the Delhi High Court. The government opposed the production of these reports on the ground that their disclosure would injure public interest under Section 123 of the Indian Evidence act. But the Supreme Court ruled otherwise. The case is a definite evidence of court’s attempt to promote the ideal of open Government in India. Justice Bhagwati took some such view in the above case when he expressed his faith in the ideal of an open Government. Merely secrecy of the Government is not a vital public interest so as to prevail over the most imperative demands of justice. In giving a new orientation to the statutory provision in question, Bhagwati, J. emphasized, “Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their Government is doing.” He observed: “The citizen’s right to know the facts, the true facts, about the administration of the country is thus one of the pillars of a democratic state. And this is why the demand for openness in the Government is increasingly growing in different parts of the world.” He further pointed out that if the process and functioning of Government are kept shrouded in secrecy and hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority. The decision has opened a new dimension of judicial control over the exercise of privileges under Sections 123 by the executive. The Court now has assumed the power of inspection of documents in camera and if it finds that its disclosure would harm the public interest, the claim for non-disclosure might be upheld. If the disclosure, to the mind of the Court, does not harm the public interest, its disclosure would be ordered. Period of Limitation for Suit Against Government Art 149 of the First Schedule of the Limitation Act of 1890 prescribed a longer period of limitation for suits by or on behalf of the State. The Act of 1963 contains a similar provision under Art 112. The Article applies to the Central Government an all the State Governments including the Government of the State of Jammu land Kashmir. This longer limitation period was based on the common law maxim nulla tempus occur it rein, that is, no time affects the Crown. The longer period of limitation, however, does not apply to appeals and applications by Government. Module – 1 173 Under s 5 of the Limitation Act, it is provided that an appeal or application may be admitted after the expiry of the period of limitation if the court is satisfied that there was sufficient cause for the delay. It was held that the government was not entitled to any special consideration in the matter of condo nation of delay. Immunity from Promissory Estoppel Estoppel is a rule whereby a party is precluded from denying the existence of some state of facts, which he had previously asserted and on which the other party has relied or is entitled to rely on. Courts, on the principle of equity, to avoid injustice, have evolved the doctrine of promissory estoppels. The doctrine of promissory estoppel or equitable estoppel is firmly established in administrative law. The doctrine represents a principle evolved by equity to avoid injustice. Application of the doctrine against government is well established particularly where it is necessary to prevent manifest injustice to any individual. The doctrine of promissory estoppel against the Government also in exercise of its Government, public or executive functions, where it is necessary to prevent fraud or manifest injustice. The doctrine within the aforesaid limitations cannot be defeated on the plea of the executive necessity or freedom of future executive action. The doctrine cannot, however, be pressed into aid to compel the Government or the public authority “to carry out a representation or promise. a) which is contrary of law; or b) which is outside the authority or power of the Officer of the Government or of the public authority to make.” It is to be noted that Estoppel cannot be pleaded against a minor or against statute. Estoppel does not lie against the Government on the representation or Statement of facts under S. 115 if it is against the statute or Act of the Legislature but it may be applied in irregular act. T he liability of the Government has been extended by the doctrine of Promissory Estoppel. Doctrine of Promissory Estoppel is often applied to make the Government liable for its promises and stopped from going back from the promise made by it. According to this doctrine where a person by words or conduct and the other person acts on such promise or assurance and Module – 1 174 changes his positive to his detriment, the person who gives such promise or assurance cannot be allowed to revert or deviate from the promise. Case law In India, the courts are invoking this doctrine, In Union of India v. Anglo (Indo) – Afghan Agencies Ltd.,( AIR 1968 SC The doctrine of Promissory Estoppel was applied against the 718) Government. This case developed a new judicial trend. The Court upheld the application of Promissory Estoppel to the executive acts of the State. The Court negated the plea of executive necessity. Under the scheme an exporter was entitled to import raw materials equal to the amount, which was exported. Five lakhs rupees worth goods were exported by the petitioner but he was given import license for an amount below two lakh rupees. The Court held that the Government was bound to keep its promise. The scheme was held to be binding on the Government and the petitioner was entitled to get the benefit of the scheme. The Supreme Court in Century Spinning and Manufacturing Co. Ltd. V. Ulhasnagar Municipal Council,( )again extended the AIR 1971 SC 1021 doctrine of Promissory Estoppel. In this case this doctrine was applied against public authorities. The Court has made it clear that this Court will not make a distinction between a private individual and a public body so far as the doctrine of Promissory Estoppel is concerned. In short, if the Government makes a promise and promisee acts upon it and changes his position, then the Government will be held bound by the promise and cannot change its position against the promisee and it is not necessary for the promisee to f urther show that he has acted to his detriment. For the application of the doctrine of Promissory Estoppel it is not necessary that there should be some pre-existing contractual relationship between the parties. In Delhi Cloth and General Mills v. Union of India, the (1988 1 S.C.C. 86 ) Supreme Court has held that for the application of the principle of Promissory Estoppel change in position by acting on the assurance to the promise is not required to be proved. However, the judicial opinion is that it cannot be invoked against a statutory provision or to support an ultra vires act or to compel the Government or a public authority to carry out a promise, which is contrary to law, or ultra vires its powers. The doctrine of Promissory Estoppel is not applied in the following conditions: Public Interest 1. : The doctrine of Promissory Estoppel is an equitable doctrine and therefore it must yield place to the equity if larger public interest requires. It would not be enough to say that the public Module – 1 175 interest requires that the Government would suffer if the Government were required to honor it. In order to resist its liability the Government would disclose to the Court the various event insisting its claim to be exempt from liability and it would be for the Court to decide whether those events are such as to render it equitable and to enforce the liability against the Government. Representation against law: 2. The doctrine of Promissory Estoppel cannot be applied so as compel the Government or the public authority to carry out a promise, which does law prohibit. Ultra vires promise or representation: 3 . If the promise or representation made by the officer is beyond his power, the State cannot be held liable for it one the basis of the Principle of Promissory Estoppel. Fraud 4. : the doctrine of Promissory Estoppel is not applied in cases where the promise f rom the Government is obtained by fraud. Fraud on the Constitution: 5. The doctrine of Promissory Estoppel is not applied in cases when the promise or representation is obtained to play f raud on the Constitution and enforcement would defeat or tend to defeat the Constitutional goal. Liability of State or Government in Contract Article 298 provides that the executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition holding and disposal property and the making of contracts for any purpose. Article 299 (I) lays down the manner of formulation of such contract. Article 299 provides that all contracts in the exercise of the executive power of the union or of a State shall be expressed to be made by the President or by the Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorize. Article 299 (2) makes it clear that neither the President nor the Governor Shall be personally liable in respect of any contract or assurance made or executed for the purposes of this Constitution or for the purposes of any enactment relating or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof. Subject to the provisions of Article 299 (1), the other provisions of the general law of contract apply even to the Government contract. A contract with the Government of the Union or State will be valid and binding only if the following conditions are followed: - Module – 1 176 1. The contract with the Government will not be binding if it is not expressed to be made in the name of the President or the Governor, as the case may be. 2. The contract must be executed on behalf of the President or the Governor of the State as the case may be. The word executed indicates that a contract with the Government will be valid only when it is in writing. 3. A person duly authorized by the President or the Governor of the State, as the case may be, must execute the contract. The above provisions of Article 299 are mandatory and the contract made in contravention thereof is void and unenforceable. The Supreme Court has made it clear that in the case grant of Government contract the Court should not interfere unless substantial public interest is involved or grant is mala fide when a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the Court must be satisfied that there is some element of public interest involved in entertaining such a petition. Effect of a valid contract with Government However, as Article 299 (2) provides neither the President nor the Governor shall be personally liable in respect of any contract or assurance made or executed for the purposes of this Constitution or for the purposes of any enactment relating to the Government of India. As soon as a contract is executed with the Government in accordance with Article 299, the whole law of contract as contained in the Indian Contract Act comes into operations. Thus the applications of the private law of contract in the area of public contracts may result in the cases of injustice. A contract of service with the Governments not covered by Article 299 of the Constitution. After a person is taken in a service under the Government, his rights and obligations are governed by the statutory rules framed by the Government and not by the contract of the parties. Service contracts with the Government do not come within the scope of Article 299. They are subject to “pleasure”. They are not contracts in usual sense of the term as they can be determined at will despite an express condition to the contrary. (See Parshottam Lal Dhingra v. Union of India, AIR 1958 SC 36) In India the remedy for the branch of a contract with Government is simply a suit for damages. The writ of mandamus could not be issued for the enforcement of contractual obligations. But the Supreme Court in its pronouncement in Gujarat State Financial Corporation v. Lotus Hotels , has taken a new stand and held that the writ of mandamus ((1983) 3 SCC 379) Module – 1 177 can be issued against the Government or its instrumentality for the enforcement of contractual obligations. The Court ruled that it is too late to contend today the Government can commit branch of a solemn undertaking on which other side has acted and then contend that the party suffering by the branch of contract may sue for damages and cannot compel specific performance of the contract through mandamus. The doctrine of judicial review has extended to the contracts entered into by the State of its instrumentality with any person. Before the case of Ramana Dayaram Shetty v. International Airport Authority. (AIR 1979 SC The attitude of the Court was in favour of the view that the 1628) Government has freedom to deal with any one it chooses and if one person is chosen rather than another, the aggrieved party cannot claim the protection of article 14 because the choice of the person to fulfill a particular contract must be left to the Government, However, there has been significant change in the Court’s attitude after the case of Ramana Dayaram Shetty. The attitude for the Court appears to be in favour of the view that the Government does not enjoy absolute discretion to enter into contract with any one it likes. They are bound to act reasonably fairly and in non-discriminatory manner. In the case of Kasturi Lal v. State of J&K in this case (AIR 1980 SC 1992), Justice Bhagwati has said “Every activity of the Government has a public element in it and it must, theref ore, be informed with reason and guided by public interest. Every government cannot act arbitrarily without reason and if it does, its action would be liable to be invalidated.” Non- arbitrariness, fairness in action and due consideration of legitimate expectation of affected party are essential requisites for a valid state action. In a (Food Corporation of India v. Kamadhenu Cattle Feed Industries, (1993) 1 SCC 71) recent case the Supreme Court has (Tata Cellular v. Union of India, AIR 1996 SC 11) held that the right to refuse the lowest or any other tender is always available to the Government but the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised fro any collateral purpose the exercise of that power will be struck down. Ratification: - The present position is that the contract made in contravention of the provisions of Article 299 (1) shall be void and therefore cannot be ratified. The Supreme Court has made it clear that the provisions of Article 299 (1) are mandatory and therefore the contract made in contravention thereof is void and therefore cannot be ratified and cannot be enforced even by invoking the doctrine of Estoppel. In such condition the question Module – 1 178 of estoppel does not arise. The part to such contract cannot be estoppel from questioning the validity of the contract because there cannot be estoppel against the mandatory requirement of Article 299. The Government cannot exercise its power arbitrarily or capriciously or in an unprincipled manner. In this case Justice Bhagwati has said “ Every activity of the Government has a public element in it and it must therefore, be informed with reason and guided by public interest: Government cannot act arbitrarily and without reason and if it does, its action due consideration of legitimate expectation of affected party are Court has held that the right to refuse the lowest or any other tender is always available to the Government but the principles laid down in article 14 of the Constitution have to be kept in view while accepting or refusing a tender. The right to choose cannot be considered to be an arbitrary power. Of Course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down. In the case of Shrilekha Vidyarathi v. State of U.P the (1991 S.C .C 212) Supreme Court has made it clear that the State has to act justly, fairly and reasonably even in contractual field. In the case of contractual actions of the State the public element is always present so as to attract article 14. State acts for public good and in public interest and its public character does not change merely because the statutory or contractual rights are also available to the other party. The court has held that the state action is public in nature and therefore it is open to the judicial review even if it pertains to the contractual field. Thus the contractual action of the state may be questioned as arbitrary in proceedings under Article 32 or 226 of the Constitution. It is to be noted that the provisions of Sections 73, 74 and 75 of the Indian Contract Act dealing with the determination of the quantum of damages in the case of breach of contract also applies in the case of Government contract. Quasi-Contractual Liability According to section 70 where a person lawfully does anything for another person or delivers anything to him such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of or to restore, the thing so done or delivered. If the requirements of Section 70 of the Indian Contract act are fulfilled, even the Government will be liable to pay compensation for the work actually done or services rendered by the State. Section 70 is not based on any subsisting contract between the parties but is based on quasi-contract or restitution. Section 70 enables a person who actually supplies goods or renders some services not intending to do gratuitously, to claim compensation from the person who enjoys the benefit of the supply made or services rendered. It is a liability, which arise on equitable grounds even though express agreement or contract may not be proved. Section 65 of the Indian Contract Act. Module – 1 179 If the agreement with the Government is void as the requirement of Article 299 (1) have not been complied, the party receiving the advantage under such agreement is bound to restore it or to make compensation for it to the person form whom he has received it. Thus if a contractor enters into agreement with the Government for the construction of go down and received payment therefore and the agreement is found to be void as the requirements of Article 299 (1) have not been complied with, the Government can recover the amount advanced to the contractor under Section 65 of the Indian Contract act. Action 65 provides that when an agreement is discovered to be void or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it to make compensation for it to the person from whom he received it. Suit against State in torts Before discussing tortuous liability, it will be desirable to know the meaning of ‘tort’. A tort is a civil wrong arising out of breach of a civil duty or breach of non-contractual obligation. The word ‘tort’ has been defined in Chambers Dictionary in the following words; “Tort is any wrong or injury not arising out of contact for which there is remedy by compensation or damages.” Thus, tort is a civil wrong, which arises either out of breach of no contractual obligation or out of a breach of civil duty. In other words, tort is a civil wrong the only remedy for which is damages. The essential requirement for the arising of the tort is the beach of duty towards people in general. Although tort is a civil wrong, yet it would be wrong to think that all civil wrongs are torts. A civil wrong which arises out for the breach of contact cannot be put in the category of tort as it is different from a civil wrong arising out of the breach of duty towards public in general. Liability for Torts In India immunity of the Government for the tortious acts of its servants, based on the remnants of old feudalistic notion that the king cannot be sued I his own courts without his consent ever existed. The doctrine of sovereign immunity, a common law rule, which existed in England, also found place in the United States before 1946 Mr. Justice Holmes in 1907 declared for a unanimous Supreme Court: “A sovereign is exempt from suit not because of any formal conception or obsolete theory, but on the logical and practical Module – 1 180 ground that there can be no legal right as against the authority that makes the law on which the right depends.” Today, hardly, anyone agrees that the stated ground for exempting the sovereign from suit is either logical or practical . Vicarious Liability of the State When the responsibility of the act of one person falls on another person, it is called vicarious liability. Such type of liabilities is very common. For example, when the servant of a person harms another person through his act, we held the servant as well as his master liable for the act done by the servant. Here what we mean is essentially the vicarious liability of the State for the torts committed by its servants in the exercise of their duty. The State would of course not be liable if the acts done were necessary for protection life or property. Acts such as judicial or quasi-judicial decisions done in good faith would not invite any liability. There are specific statutory provisions which the adm inistrative authorities from liability. Such protection, however, would not extent malicious act. The burden of proving that an act was malicious would lie on the person who assails the administrative action. The principles of law of torts would apply in the determination of what is a tort and all the defences available to the respondent in a suit for tort would be available to the public servant also. If after all this, a public servant is proved to have been guilty of a tort like negligence, should the State, as his employer is liable? In India Article 300 declares that the Government of India or a of a State may be sued for the tortious acts of its servants in the same manner as the Dominion of India and the corresponding provinces could have been sued or have been sued before the commencement of the present Constitution. This rule is, however, subject to any such law made by the Parliament or the State Legislature. Case Law on the tortious liability of the State The first im portant case involving the tortious liability of the Secretary of State for India-in –Council was raised in P.and O. Steam Navigation v. Secretary of State for India. (5 Bom HCR App 1.) The question referred to the Supreme Court was whether the Secretary of State for India is liable for the damages caused by the negligence of the servants in the service of the Government. The Supreme Court delivered a very learned judgment through Chief Justice Peacock, and answered the question in the affirmative. The Court pointed out the principle of law Module – 1 181 that the Secretary of State for India in Council is liable for the damages occasioned by the negligence of Government servants, if the negligence is such as would render an ordinary employer liable. According to the principle laid down in this case the Secretary of State can be liable only for acts of non sovereign nature, liability will not accrue for sovereign acts Chief Justice peacock admitted the distinction between the sovereign and non sovereign functions of the government and said: “There is a great and clear distinction between acts done in exercise of what are termed sovereign powers, and acts done in the conduct of undertakings which might be carried on by private individuals without having such powers delegated to them.” But the judgment of P. and O. Steam Navigation case, was differently interpreted in Secretary of State v. Hari Bhanji, In this case it (5 Mad 273) was held that if claims do not arise out of acts of State, the civil Courts could entertain them. Module – 1 182 The conflicting position before the commencement of the Constitution has been set at rest in the well known judgment of the Supreme Court in State of Rajasthan v. Vidyawati, (AIR 1962 SC 933) where the driver of a jeep, owned and maintained by the State of Rajasthan for the official use of the Collector of the district, drove it rashly and negligently while taking it back from the workshop to the residence of the Collector after repairs, and knocked down a pedestrian and fatally injured him. The State was sued for damages. The Supreme Court held that the State was vicariously liable for damages caused by the negligence of the driver. in fact, the decision of the Supreme Court in State of Rajasthan v. Vidyawati, (Kesoram Poddar v. Secretary of State for India, 54 Cal 969) introduces an important qualification on the State immunity in tort based on the doctrines of sovereign and non sovereign functions. It decided that the immunity for State action can only be claimed if the act in question was done in the course of the exercise of sovereign functions. Then came the important case of Kasturi Lal v. State of U. P. ( AIR 1965 SC 1039) where the Government was not held liable for the tort committed by its servant because the tort was said to have been committed by him in the course of the discharge of statutory duties. The statutory functions imposed on the employee were referable to and ultimately based on the delegation of the sovereign powers of the State. The Court held that the Government was not liable as the activity involved was a sovereign activity. T he Court aff irmed the distinction between sovereign and non-sovereign function drawn in the P. and O. Steam Navigation’s case in the following terms. The Supreme Court’s judgment unambiguously indicates that the Court itself on the question of justice felt strongly that Kashturilal should be compensated yet, as a matter of law they held that he could not be. There are, on the other hand, a good number of cases where the courts, although have maintained the distinction between sovereign and non- sovereign functions yet in practice have transformed their attitude holding most of the functions of the government as non-sovereign. Consequently there has been an expansion in the area of governmental liability in torts. Sovereign and non-sovereign dichotomy Changed judicial attitude Module – 1 183 It is redeeming to note that the sovereign and non-sovereign dichotomy in the State functions which the Supreme Court has followed so far, is no being narrowed down by a new gloss over the sovereign functions of the State The courts started holding most of the governmental functions as non-sovereign with a result that the area of tortious liability of the government expanded considerably. The Madhya Pradesh High Court (Associated Pool v. Radhabai, AIR 1976 MP 164.) Has put up the entire legal position, which emerged from the analysis of the cases, in the following words: “These cases show that the traditional sovereign functions are the making of law, the administration of justice, the maintenance of order, the repression of crime, carrying on for war, the making of treaties of peace an other consequential functions, Whether this list be exhaustive or not, it is at least clear that the socio-economic and welfare activities undertaken by a modern state are not included in the traditional sovereign functions… Damages It may happen that a public servant may be negligent in the exercise of his duty. It may, however, be difficult to recover compensation from him. From the point of view of the aggrieved person, compensation is more important than punishment. Therefore, like all other employers the State must be made vicariously liable for the wrongful acts of its servants The Courts in India are now becoming conscious about increasing cases of excesses and negligence on the part of the administration resulting in the negation of the personal liberty. Hence they are coming forward with the pronouncements holding the Government liable for damages even in those cases where the plea of sovereign function could have negative the governmental liability. One such pronouncement came in the case of Rudal Shah v. State of Bihar. Here the petitioner was detained (AIR 1983 SC 1036) illegally in the prison for over fourteen years after his acquittal in a full dressed trail. The court awarded Rs. 30,000 as damages so the petitioner. In Bhim Singh v. State of J&K where the petitioner, a member (AIR 1986 SC 494) of legislative Assembly was arrested while he was on his way to Srinagar to attend Legislative Assembly in gross violation of his constitutional rights under Articles 21 and 22 (2) of the Constitution, the court awarded monetary compensation of Rs.50,000 by way of exemplary costs to the petitioner. Another landmark case namely, C.Ramkonda Reddy v. State, (AIR 1989) AP 235) has been decided by the Andhra Pradesh, in which State plea of sovereign Module – 1 184 function was turned down and damages were awarded despite its being a cases of exercise of sovereign function. In Saheli a Women’s Resource Center v. Commissioner of Police, Delhi, (AIR where the death of nine years old boy took place on account of 1990 SC 513) unwarranted atrocious beating and assault by a Police officer in New Delhi, the State Government was directed by the court to pay Rs. 75000 as compensation to the mother of victim. In Lucknow Development Authority v. M.K. Gupta, the Supreme (1994 1 SCC 245) Court has observed that where public servant by mal fide, oppressive and capricious acts in discharging official duty causes in justice, harassment and agony to common man and renders the State or its instrumentality liable to pay damages to the person aggrieved from public fund, the State or its instrumentality is duly bound to recover the amount of compensation so paid from the public servant concerned. The Court very correctly analyses the entire position of sovereign liability in India and observed: “The immunity peculiar to English system found its way in our system of governance through run of judgments rendered during British period, more particularly after 1858, even though the maxim lex non protest peccary that is the king can do no wrong had no place in ancient India or in medieval India as the king in both the periods subjected themselves to the rule of law and system of justice prevalent like the ordinary subjects of the States. According to Monu, it was the duty of the king to uphold the law and he was as much subject to the law as any other person. it was said by Brihaspati, where a servant commissioned by his master does an improper, for the benefit of his master, the latter shall be held responsible for it. Even during the Muslim rule the fundamental concept under Muslim law like Hindu law was that the authority of king was subordinate to that of the laws. It was no different during British rule. The courts leaned in favor of holding the State responsible for the negligence of its officers.” Liability of the Public Servant Liability of the State must be distinguished from the liability of the individual officers of the State. So far as the liability of the individual officers is concerned, if they have acted outside the scope of their powers or have acted illegally, they are liable to the same extent as any other private citizen would be. The ordinary law of contact or torts or criminal law governs that liability. An officer acting in discharge of his duty without bias or mal fides could not be Module – 1 185 held personally liable for the loss caused to the other person However such acts have to be done in pursuance of his official duty and they must not be ultra vires his powers. If an official acts outside the scope of his powers, he should be liable in civil law to the same extent as a private individual would be. Where a public servant is required to be protected for acts done in the course of his duty, special statutory provisions are made for protecting them from liability. Public Accountability Major developments in the area of public accountability have taken place. In the absence of public accountability today, corruption is a low-risk and high- profit business. The Classical observation of the Supreme Court in D.D.A v. Skipper Constructions deserves special attention. The court ((1996) 4 SCC 622) observed. “Some persons in the upper strata (which means the rich and the influential class of the society) have made the ‘property career’ the sole aim of their life. The means have become irrelevant in a land where its greatest son born in this country said “means are more important than the ends.” A sense of bravado prevails; everything can be managed; every authority and every institution can be managed… They have developed utter disregard for law may, contempt for it; In order to strengthen the concept of public accountability the court in Common Cause., A Registered Society (Petrol Pumps Matter) v. Union of India held that it is high time that public servants should be ((1996) 6 SCC 530) held personally liable for their functions as public servants. Thus, for abusing the process of court public servant was held responsible and liable to pay the cost out of his own pocket. ( Shori Lal v. DDA 1995 Supp (2) SCC 119) The principle thus developed is that a public servant dealing with public property in oppressive, arbitrary or unconstitutional manner would be liable to pay exemplary damages as compensation to the government, which is ‘by the people’ In Lucknow Development Authority v M. K. Gupta, the Court (1994 1 SCC 243) asked as to who should pay the compensation for the harassment and agony to the victim? For acts and omissions causing loss or injury to the subject, the public authority must compensate. Where, however, the suffering was due to mal fide or capricious act of public servant, such a public servant would be made to pay for it. Although the Court spoke in connection with the Consumer Protection Act, if this principle is to be extended to liability for wrongful acts in general, it would doubtless provide an effective deterrent against mal fide and capricious acts of public servants. RM Sahai J observed. Module – 1 186 “The administrative law of accountability of public authorities for their arbitrary and even ultra vires actions has taken many strides. It is now accepted both by this Court and English courts that the State is liable to compensate for loss or injury suffered by a citizen die to arbitrary actions of its employees.” Having stated this, the learned Judge stopped to consider who would pay such compensation. Such compensation would of course be paid from the public treasury, which would burden the taxpayer. He, therefore further ordered that when a complaint was entitled to compensation, because of the suffering caused by a mal fide or oppressive or capricious act of a public servant, the Commission under the Consumer Protection Act should direct the department concerned to pay such compensation from the public fund immediately but to recover the same from those who are responsible for such unpardonable behavior by dividing it proportionately among them when they were more than one. Where a married woman was detained on the pretext of her being a victim of abduction and rape, and the police officers threatened her and commanded her to implicate her husband and his family in a case of abduction and forcible marriage, the Court directed the State government to launch prosecution against the police officers concerned and to pay compensation to the woman and her family members who were tortured. Where high ranking officials of a public authority, the Delhi Development Authority were held guilty of irregularities such as giving possession of lands sold in auction to the respondent bidder before receiving the auction amount in full, thus causing loss to the public and the guilt was established in an inquiry conducted by Justice (retired) O Chinappa Reddy, the Supreme Court directed the government to hold a departmental enquiry against such official. Where indiscriminate admissions were given in an educational institution in branch of eligible conditions, the Court ordered the government to take penal action against the person responsible for such admission. The head of the department is accountable to the court for carrying out he orders of the court. Personal costs may be awarded against the officer who fails to act in compliance with the court’s order. In recent years, the Supreme Court has also imposed personal fines and liabilities on ministers who used their discretionary powers on ulterior considerations. Where a minister allotted petrol pumps to his favorites or where a minister gave out of turn allotment of houses to persons related to her or known to her in preference to those who deserved such accommodation. The Court not only quashed the allotments but also imposed exemplary damages for having denied that largesse to the deserving people. Personal liability for abuse of power is a recent phenomenon The Court further observed: Module – 1 187 “In modern sense the distinction between sovereign and non-sovereign power does not exist. It all depends on the nature of power and manner of its exercise. Legislative supremacy under the Constitution arises out of Constitutional provisions. Similarly the executive is free to implement and administer the law. One of the tests to determine if the legislative or executive functions sovereign in nature is whether the State is answerable for such actions in courts of law, for instance, acts such as defense of the country, raising armed forces and maintain it, making peace or war, foreign-affairs, power external sovereignty and are political in nature. Therefore, they are not amenable to the jurisdiction of ordinary civil court. The State is immune from being sued as the jurisdiction of the courts in such matters is impliedly barred.” But there the immunity ends. No civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner, as it is sovereign. No legal or political system today can place the State above law, as it is unjust and unfair for a citizen to be deprived of his property illegally by the negligent act of officers of State. The modern social thinking and judicial approach is to do away with archaic State protection and place the State or the Government at par with other juristic legal entity. Any watertight compartmentalization of the functions of the State as sovereign or non-sovereign is not sound. It is contrary to modern jurisprudence. But with the conceptual change of statutory power being statutory duty for sake of society and the people, the claim of a common man cannot be thrown out merely because it was done by an officer of the State official and the rights of the citizen are require to be reconciled so that the rule of law in a welfare State is not shaken. It is unfortunate that no legislation has been enacted to lay down the law to torts in India. For that law, our courts have to draw from the English common law. Since the law of contract and the law of Sale of Goods and now the law of consumer protection have been enacted, it is high time that our Parliament enacts a law and thereby comes out of the legislative inertia.. The law in India on State liability has developed in the last two decades through judicial process. It has made the State liable for the torts of its servants. The courts have, however, developed such a law without expressly overruling some of the earlier decision, which defined the State liability in very narrow terms. While the State has enacted various anti-pollution laws and the laws for the protection of the consumers, which provide quick remedies to the citizens, there is yet no sincere Module – 1 188 and strict implementation of such laws. The industry has often shown inadequate regard fro provisions requiring installation of hazard preventing devices as required by the anti pollution laws. This became clear in MC Mehta v. Union of India. (AIR 1987 SC The State can be compelled to perform its statutory duties though a writ of 1086) mandamus, but will the State be liable to pay compensation to those who suffer because of its negligence or failure to obtain compliance of the industries to the provisions of the anti-pollution laws? In recent years, the courts have awarded compensation in a number of situations. Compensation was awarded for police brutalities committed on policemen People Union for Democratic Rights v. Police Commissioner to victims ((1989 ) 4 SCC 730 ) of negligence by medical personnel in an eye camp resulting in irreversible damage to the eyes of patients, A.S Mittal v. State of U. P ( and to victims of road AIR 1989 SC 1570) accidental President Union of India v. Sadashiv and to victims of (AIR 1985 Bom 345) environmental pollution The plea of sovereign immunity has been (AIR 1987 Sc 1792) rejected by courts time an again. Pushpinder Kaur v. Corporal Sharma (AIR 1985 P & H Besides these, the courts have awarded excreta payment ( 81) Kali Dass v. State of J&K and costs of public interest litigating to those who spearheaded it (DC (1987) 1 SCC 430) Wadhwa v. State of Bihar ) The Supreme Court has held that where essential governmental functions were concerned, loss or injury occurring to any person due to failure of the government to discharge them would make it liable for compensation. Such compensation would be paid even if the plaintiff does not prove negligence on the part of an authority. In Nilbati Behera v. State of Orissa the Supreme Court held that the (AIR 1993 SC 1960) awards of compensation in the public law proceedings were different from the awards in the tort cases. In a civil suit for tortuous liability, whether the State was liable was an issue to be decided by taking evidence. The petitioner had to prove that the respondent was guilty of negligence and he suffered as a result of that. In a writ petition, the fact that a fundamental right had been violated was enough to entitle a person to compensation. Further, compensation in writ proceedings is symbolic and is not based on the quantification of the actual loss suffered by the petitioner. Under the Consumer Protection Act, 1986, informal grievance redressal machinery has been provided. . Although consumer courts do not award damages for the civil wrongs, they have provided compensation to the consumer against unfair trade practice, deficient or negligent service or faulty goods. The consumer courts have not spared even government agencies. The Life Insurance Corporation, the nationalized banks, government hospitals have been made to pay compensation. Such actions of the Module – 1 189 consumer courts, however, do not deprive the consumer of his right to file a suit for tort in a civil court. Public Administration and Role of Civil Services in India Administrative capability is a major and crucial factor in the success or failure of development efforts. Administrative modernization has been increasingly recognized as an integral part of the development process. As the ability to assume new tasks, to cope with complexity, to solve novel problems, to modernize resources, etc., depends upon the administrative capacity based on increased professionalization, bureaucratization, modernization and administrative talent. This highlights the role of public and personnel administration. The quality of the institutions run by Government is dependent to a great extent upon the quality of the employees engaged in their operation. The efficient personnel administration can generate development, dynamism and modernization and ultimately lead to nation building through lubricating and optimizing the capacity and capability of personnel within the Government machinery. Module – 1 190 The functionaries in public administration can be categorized as “civil services” on the one hand and “public services” on the other. In the current literature on the subject: • = The term “civil service” denotes the entire group of personnel under the employment of governmental system only, mainly the central government and the state governments. • = The term “public service” is used for government employees, quasi-government employees, as well as employees of local bodies. The Civil Service personnel can be further categorized as follows: • = All operatives who work on the ground level have to directly interact with the common man for rendering a variety of services and performing regulatory functions They belong mostly to Group ‘D’ and partly to Group ‘C’ services and are known as the “cutting edge” of administration. • = The supervisory level and the middle executive level. They are a whole range of technical and non-technical personnel who belong to the Group ‘B’ services and shade into higher stages of Group “c” at the one end and the lower stages of Group ‘A’ at the other. • = Executive-cum-management levels constitute mostly Group ‘A’ service personnel comprising a whole range of non technical uni- functional services, scientific and technical services and the All India services. The top most layers of these services constitute the potential reservoir of policy makers and top management. Those moving into these policies and to management levels require training in policy analysis, policy formulation, strategic planning, evaluation etc. Functions of Civil Services Advice. One of the primary functions of civil service is to offer advice to the political executive. Ministers rely on the advice of their senior officials who are reservoirs of information and organized knowledge concerning the subject matters, which they administer. The political executive necessarily depends upon the civil personnel. Module – 1 191 For the information that he needs in formulating his own Programme. In the course of administration many problems arise which are usually worked out in the first instance by the civil service and the reported to the political overhead, if at all, for approval or merely for information. Programme and Operational Planning . In its broad sense planning is a responsibility of the political executive; planning the periodic adjustments of the revenue structure is a responsibility of the Minister for Finance. But there is a field wherein civil servants also Performa the function of planning, and this is the field of Programme planning. As we know the legislature passes (to draw a framework for the implementation of policy) an Act in general terms to execute and implement the policy for which certain rules and regulations are required. The civil servants, who put that law into execution, determine the specific steps to be taken in order to bring to fruition a policy or a law already agreed upon. Besides, assisting the ministers in the formulation of policy and drawing a framework of plan, the civil services are required to participate in the execution of plan. This is termed as operational planning. Production . Civil Service exists to perform services in the broadest sense of the term. Its primary purpose is production. Every official responsible for running administration needs work standards to enable him to determine whether his organization is reasonably effective, whether his subordinate employees are competent and whether levels of efficiency and output are rising or falling . Delegated Legislative Powers . Due to the emergence of the welfare state, the activities of the State have got multiplied. The Legislature is neither competent nor has the time to cope with enormous and complex legislation which has consequent grown up. Hence it delegates power of making law to the executive. It passes the bills in skeleton form bearing the details for the executive to fill. The permanent heads of the department evidently performs this job. Administrative Ad judicatory Power. This is another important power, which has been entrusted to the executive due to rapid technological developments and the emergence of the welfare concept of the State. Administrative adjudication means vesting judicial and quasi-judicial powers with and administrative department or agency. In India this power has been mostly given to the administrative heads. Public administration is the basic infrastructure that sustain as modern society. Therefore, the structure of civil administration and the competence of its higher civil servants have always been critical determinants in fueling vitality to drive the wheels of progress in any country. Role of Public Administration: Module – 1 192 Now let us try to find out the role of Public Administration in India. The postcolonial bureaucracy is in essence a progression from a system that evolved during a hundred and fifty years of British rule. With the constitutional transfer of power, the question of winding up the old system or even making radical changes immediately was not even considered. Adaptations, innovations, expansion and any basic changes were left to be made as altered conditions as new objectives emerged. The evolution of the bureaucracy during the last 50 years can be summed up as situational responses to emerging issues. Reforms in public administration were recognized and emphasized by the government in office from time to time. Notwithstanding its infirmities in normal functioning, the post colonial and post-independence bureaucracy has made a significant contribution to the country’s progress and has shown vitality and resilience in measuring up to virtually any kind of crisis. However, the following trends in process have brought into sharp focus the need for; • = A revival of the public service ethics • = The modernization of its systems mindset and work culture, and • = Benchmarking its responsiveness to people’s needs. The Constitution of India provides for recruitment and conditions for services of persons appointed to public services in the union or in the states through acts of appropriate legislature. Such acts comprehensively providing for among other disciplinary proceeding, duty to abide by the rule of law, obligation to serve wherever deployed and overall work ethics for all public servants were never passed. The expansion of the bureaucracy was done through a multitude of service rules and recruitment procedures, framed for each compartmentalized and segmented category of services. A clear-cut over arching and binding code of ethics encompassing the following essential elements is urgently required: • = Service in the government. • = Accountability to the public. • = Efficiently, effectiveness, professionalism and integrity, and • = Safeguarding public interest, among others. Module – 1 193 Such a code would provide the basic conditions, requirement, and style of work, discipline, and accountability for all public servants irrespective of the categories for service to which they belong. Several suggestions have been made for a character of ethics for public servants serving both at the Center and the State. The prevailing cultural values of consumerism, commercialism, and permissiveness and rights without duties aggravate the problem. Diminishing standards of morality in dealing with public services by the politicians are matters of grave concern, which reduce public trust in governance. Despite its is numerous achievements, the ever changing scenarios and agendas for Government, and the exploding consciousness and demands of the people have not always found public administrators ready with the right degree of motivation, professionalism, and devotion to work. • = They are perceived as self-serving, impervious to the needs of the ordinary people, inefficient, unproductive, and unable to renew themselves. • = They suffer from over centralization, unhealthy inter service . rivalries, and unprofessional and high cost management entities Declining productivity in government is one of the principal reasons for the poor image of public services. This is because: • = There are no incentives for higher output, as promotions are almost automatic. • = There is undue emphasis upon rules and procedures and not enough on output. The interface between the politician and the public servant: • = Has become thoroughly dysfunctional. • = Political interference in the day to day running of the administration has created havoc diluting both the achievements of proper results and accountability. Accountability: Accountability is fundamental to any good public administration: Module – 1 194 • = The Constitution for India with its basic values of democracy, social justice, rule of law, equality before the law, etc. provides a viable framework for developing accountability • = The thrust of a recent spate of Supreme Court judgments is that no minister or public servant can arrogate to himself/herself the poor to act in a manner which is arbitrary and that each public servant is responsible for injury to individual or loss to public property through any act of omission and commission. Experience of the past five decades indicates that: • = Where departments and individual have not been vested with sufficient autonomy, the organization becomes non functional. • = Similarly, were autonomy has been granted without accountability and transparency, there has been misuse of resources and nepotism. An effective balance is required in ensuring autonomy, accountability and transparency; the system has to reflect this balance. Public servants in India are accountable to a number of institutions. Prominent among these is: • = Parliament/ State Legislatures and their Committees. • = Audit procedures and practice. • = The existing institutions/mechanisms of vigilance. • = The Judiciary • = Mass Media • = The Citizens, individually or through organizations of civil society. In spite of these, a view persists that civil servants are accountable to no one. A number of recommendations have been made to improve these practices, the latest being those made by the Fifth Pay Commission. Service in public interest and the satisfaction of making an impact upon the society and the citizens have to be sustained through an appropriate work environment,. Incentive systems, job enrichment and softer special measures. Alexis De Tocqueville has stated that “when the inevitable is perceived to be no longer inevitable, it become intolerable.” This is true of public servants as well as the public at large in India. Module – 1 195 The interface between the political domain and the administrative domain which was clear, and properly maintained soon after independence, has increasingly become dysfunctional due to excessive political interference and following reasons: - • = The processes commonly identified as politicization administration and criminalizatiion of politics have eroded time-honored virus of civil services, such as integrity, politics neutrality, courage and morale. Short term, targets, narrow horizons, and feudal outlook, purposeless activity contributes nothing to the welfare of the nation. Empty promises have seriously interfered with the management of personnel and public services. Therefore in view of above Competent politics and renewed participatory administration paradigms are required to cope with the current situation and provide proper directions for future. A core of newer mindsets, styles, skills, and knowledge are imperative for all the actors in the administrative system. Training is an important segment of Personnel Management and can play a crucial role in the enhancement of capacity of individuals and organizations. Rapidly changing professional environment for civil services all over the world, reflecting explosive changes in the social, economic, and technological aspects of life have further added to the importance and need for an appropriate training policy and system. Prof. Yehezkil Dror, who acted as a UNDP Consultant on training of senior civil services in Indian, spelt out the following features as the core requirement of civil servants in the 21 Century: st • = Professionalism: All civil servants, especially the senior ones, must be professionals’ in the sense of having knowledge in action, and possessing a trained capacity.this implies rejection of distinctions between experts and generalists as incorrect. Pluralism: • = No one set of characteristics which can be satisfied by any single human being can meet the aggregate requirement of the Civil Service. The multiplicity in backgrounds,. career Module – 1 196 patterns and also training is required, together with shared cores. Technical skills and languages; • = Basic tools needed by all civil servants include operating and advanced computerized workstation (and liking to do so.) Knowing the World and One’s Country: • = Good knowledge and understanding of the realities and dynamics of the world and of one’s country. Literacy in Basic Disciplines: • = All civil servants need literacy, though not advanced knowledge, in number of disciplines which are fundamental to governance in foreseeable future . Shared Domain of Professionalism: • = All civil servants should share significant professionalism, in two domain fundamental to their functions management, in a broad sense of that term, and advanced policy analysis. Interface Abilities: • = Productive interface with politicians group representatives, clients, expert, intellectuals, mass media staff, etc., is an essential feature of the civil service. Behavioral and Personality Features: • = Constant learning habits, including addiction to professional reading; capacities to exit oneself and to change ones mind; open mind and innovativeness. These are behavioral and personality features increasingly essential in a rapidly changing world. Value and Commitment: • = Value and commitment issues will be critical for the performance of governance in general and the senior civil service in particular. Several winds of change are sweeping the country, exercising pressure for dramatic reform in administrative procedures, challenging the capacities of administrators: Module – 1 197 A large number of social and activist groups have emerged all over the country demanding greater accountability of governmental functioning at all levels and for honest and efficient delivery of services. Voluntary organizations are at work in several fields actively mobilizing people for participatory decision-making and in exposing cases of dishonesty and corruption. Side by side with social activism targeted at the quality of governance, there is growing public awareness of the obligation of all concerned government authorities to protect and safeguard fundamental and human rights: • = The National Human Rights Commission (NHRC) set up in 1994, has already done outstanding work in exposing serious deficiencies which obtained in the application of the rule of law and preservation of human life, liberty and dignity. Over a period, the functioning of NHRC is bound to have a salutary effect on the functioning of various organizations and in this process, compel reform and prudent exercise of authority. • = Statutory powers and authority to supervise implementation of relevant policies and programmes are being demanded on the lines, of NHRC by several commissions set up to look after the specific interest of women, scheduled castes, scheduled tribes, minorities, etc. Judicial intervention and activism is unavoidable whenever the functions of policy formulation and administrative are entwined mixed up, thereby diluting the responsibility, accountability and integrity : • = This is precisely what has been happening through orders passed by the Supreme Court in various public interest litigation cases in which allegation of misadministration and corruption were made against ministers and senior civil servants. • = Severe punishments awarded by the apex court in some of these cases should also result in cautioning all those who choose to exercise authority wantonly. • = While it may not be proper to expect the judiciary to bear the mantle of reforming the executive, judicial activism in glaring cases of default by Module – 1 198 public authorities is having a chastening effect.There has been large- scale expansion of the print and audiovisual media in recent years: • = A focused approach in dealing with major societal and political issues is gradually evolving in all forms of media. • = Indian journalism has made useful contribution by devoting adequate coverage of tasks well done, highlighting the achievements of honest and efficient public servants and organizations, and in giving special attention to developments in the remote and backward areas of our country. • = The mass media has also devoted greater attention to timely expose of cases and incidents involving irregular and unlawful exercise of authority and abuses of all kinds. Ongoing economic reform and structural changes in financial and industrial sectors together with their concomitant emphasis on social sectors and anti- poverty programs have evoked a new urgency to introduce reform in the administrative system. Streamlining procedures, revamping delivery systems and reorienting civil servants all over the country towards greater responsiveness and accountability are inescapable priorities now. The present context requires changes in models and procedures of administration based on cooperative federalism, decentralization, accountability, social justice, and respect for citizens, rights and transparency: • = The quality of life, especially in the rural are, depends upon proper infrastructure and delivery of the basic minimum needs upon which there is a widespread consensus in the country. • = The unfinished core of economic reform and the new model of participative governance would require the government to become more caring and responsive both to the needs of the growing economy and the concerns of the relatively unserved sections. Public administration and the civil services are passing through difficult times in terms of eroded credibility and effectiveness of the civil service and increasing criticism of the low level of honesty and transparency. In recognition of this need to take several corrective steps to improve the situation, the last two years witnessed wide discussions on this subject and the evolution of an Action Plan for Effective and Responsive Government. Module – 1 199 A Conference of Chief Secretaries was held in November 1996, on the agenda for these reforms, which was addressed by the Prime Minister. Following this Conference, a national debate was generated throughout the country to elicit reviews from a wide cross section of people. Retreats were organized in a number of leading academic and training institutions thought the country. An Action Plans for gearing up the Government machinery to provide a responsive, transparent and clean administration to the people and to address the issues of reform and morale in the civil services was proposed on the basis of widespread discussions and consultations. This action plan was discussed finally at a Conference of Chief Ministers in May 1997. This Conference was the culmination of the national debate on effective and responsive administration and provided impetus for determined action on restoration of the faith for the people in the fairness and responsiveness of the administration. The statement adopted at the end of this Conference Resolution provided a clear framework for reform and improvements in public administration throughout the country. The main directions of the action agreed upon at the Conference in the three areas are given below: (i) Accountable and Citizen-friendly Government: The following specific areas would be addressed: • = Citizen’s Charter: The central and state governments would formulate citizens’ charters for departments and offices, starting with those which have a large public interface: These citizens’ charters would specify standards of service and time limits that the public can reasonably expect avenues of grievance redressal and a provision for independent scrutiny with the involvement of citizen and consumer groups. These citizen’ charters would be widely publicized. • = Redressal of Public Grievance: All central and state departments would: Module – 1 200 Widely publicize facilities at various levels for the prompt and effective redressal of public grievances from the Secretariat downward to the village. Review the existing systems of redressal of public grievances, ad institute measures for streamlining them with a built-in system for independent monitoring. • = Review of laws, Regulations and Procedures: The Central and state governments would work together for the: Simplification of existing laws, regulation and procedures, repeal of obsolete laws. Reforms of laws operating against the weaker sections. Steps to reduce the time and cost of the disposal of cases in civil and criminal courts. Simplification for the entire process of cases of approvals, sanctions, and issue of permits by making it transparent and single-window- based. A priority agenda will be adopted and implemented for this purpose. 2. People’s Participation, Decentralization and Devolution of powers: There was recognition of the need for greater decentralization and devolution of administrative powers at all levels. Consistent with the spirit of the 73 and rd 74 th Amendments to the Constitution of India, immediate steps would be initiated by different state governments, with the involvement of the Central Government to strengthen people’s participation in government: Steps would be taken to ensure adequate devolution of powers and resources to the elected local bodies in rural and urban areas, in consonance with the recommendations of the State Finance Commissions. The Central and state governments would encourage and sustain people’s participation and dedicated voluntary agencies in all the schemes for the delivery of basic services. 3. Transparency and Right to Information: Module – 1 201 The Conference recognized that secrecy and lack of openness in transactions is largely responsible for corruption in official dealings and is also contrary to the spirit of an accountable dn democratic government: Steps would be taken to ensure easy access of the people to all information relating to government activities and divisions, except to the extent required to be excluded on specific grounds like national security. The Government of India would take immediate necessary steps, in consultation with state government, for examining the report of the Working Group on Right to Information, and for introducing in Parliament legislation for Freedom of Information, and amendments to the relevant provisions of the Official Secrets Act. 1923 and the Indian Evidence Act. While some of the States have already initiated steps to provide the Right to Information, others would also undertake a similar exercise. The Central and state governments would open computerized information and facilitation counters in all information and assistance is available to the pubic essential services and approvals. The ongoing efforts for systematic and phased computerization of governmental operations would be speeded up with the help of the National Informatics Centre. In this process, particular attention will be given to areas of computerization which provide significant benefit to the population such as land record, passports, investigation of offences, administration of justice, tax’s collection and administration, issue of permits and licenses, etc. It would also need to deal ruthlessly with the instances of nexus between politicians, civil servants and criminals. It was agreed that the politicization of the civil services would be curbed so as to minimize its impact not only on the morale and motivation of the services, but also on the sustained flow of responsive services to the public and efficient execution of schemes. Module – 1 202 The existing rules and legal provisions in central and state governments would be amended to enable the immediate and exemplary prosecution and removal of corrupt officials, and/or weeding out staff of doubtful integrity. A suitable mechanism would be evolved to reward government employees doing good work. Central and state governments with the provision of adequate staff, powers, resources and independence would strengthen the investigation agencies and vigilance machinery. The existing procedures for departmental enquiries and vigilance proceedings of government employees would be revamped on the basis of a study of detailed proposals worked out by the Government of India. The area of discretion available to various levels of administration would be reduced to the minimum, along with steps to prevent their arbitrary use. The role and powers of audit in the identification and pursuit of financial and procedural irregularities would be strengthened, and there will be close networking of various Agencies like Lok Ayukta, CBI, Vigilance Machinery, Income Tax Authorities, Enforcement Directorate, and CAG. The Conference appreciated the importance of encouraging and ensuring commitment of the employees of public services to ethical standards and basic principles of Constitution such as secularism, social justice, attention to the needs of weaker sections, rule of law, professionalism and integrity. The state governments would consider formulating and enforcing a Code of Ethics for State Services similar to the Draft Code being considered for introduction at the central level: Module – 1 203 • = It was recognized that frequent and arbitrary transfer of public servants affect the ability of the system to deliver services effectively to the people, and the implementation poverty alleviation schemes. • = It was agreed that institutional arrangements should be evolved for enabling objective and transparent decisions on postings, promotions and transfers of officials, particularly those working in key areas to ensure stability of tenure and de-politicized postings at all levels. For implementation arrangements in order to carry forward the action plan for immediate as well as long-term improvements in administration, it was decided to: • = Set up a Committee under the Cabinet Secretary including some of the Chief Secretaries representing different regions of the country as well as some senior officials of the Government of India in order to elaborate the different elements of the Action Plan in terms of operational content, and to work out the decisions required at central and state levels. • = The Committee would draw up a time bound agenda for legal and regulatory reform in priority areas including a statutory scheme for Freedom of Information. • = It would consider steps to secure widespread acceptance and feedback from different sections of the public, and elicit the cooperation of the people for a responsive administration. Future strategies for effective governance: The need of the time is to adhere to systematic and sustained efforts, for development of Indian democracy and Indian administration system and ensure that the government insists upon the following essential commitments for good governance. Module – 1 204 Develop and introduce a charter of ethics through Civil Service Acts for all public servants and identify specific steps for improvement in productivity and ethics in their performance. Protection of public services from political interference and abuse of power. This will involve. • = Strict and transparent enforcement of rules of the business, particularly relating to recording of orders. • = Protection of civil servants who expose corruption . To further promote transparency in administration, establish legal guidelines based constrict competitive bidding for placement of contracts, and for procurement of goods and services by the government, public sector enterprises and statutory authorities. Mechanisms for enforcement of such legal guidelines through: Compulsory audit and public announcements whenever these guidelines have been violated. Initiation of vigilance proceedings in cases where there is prima facie evidence of irregularities. Strengthen existing mechanisms for accountability, especially the watchdog’ role of the Comptroller an auditor General and his establishment in all public financial transactions. This will involve: Wide powers for audit. Prompt publication and discussion of audit reports. Automatic follow-up by the vigilance machinery of financial irregularities. Provision of audit based on references from citizens, investigative reports in the media, and suo moto. Facilitate citizen friendly administration by instituting mechanisms for participation by citizens in the design and implementation, especially of those schemes affecting them. Designing and setting-up of Facilitation Counters, Information Booths, and Bulletin Boards in all offices with heavy and frequent public interaction to promote citizen friendly administration . Module – 1 205 Revision and simplification of rules, procedures, guidelines, manuals etc., of all programs and schemes, especially in the social sectors and poverty alleviation, providing for participation of grassroots-level organizations in the development process and empowerment of people, community based organizations, users’ groups, self-help groups etc. The essential ingredients for peoples’ participation in self development are: Assessment of local resources and local-level planning Sensitizing people. Building local organizations for collective actions and support mechanisms to facilitate peoples’ development actions. Module – 1 206 ACKNOWLEDGEMENT Module – 1 207 The Department of Personnel and Training Division Government of India under its UNDP funded programme of ‘Strengthening of State ATIs in India’ , in furtherance of its ongoing trainer development programme decided to develop the Training Packages on different current topics b y involving faculty members of different ATIs of the Country to improve their delivery system. At the very outset, I put on reco rd the deep debt of gratitude to the DOPT – UNDP programme Project Director Shri O.P. Aggarwal, Joint Secretary DOPT Training Division and Ex-Director General / Financial Commissioner J &K IMPA Shri M.L. Koul for giving me an opportunity to be an anchor and reposing trust and confidence in me to develop the non -DLM Training Package on Administrative Law . I am highly thankful to my Director General IMPA Sh. K.B. Pillai under whose dynamic guidance I am in a position to present this final draft of training module to DOPT Govt. of India. In accomplishing this task, I am indebted to so many persons and sources that it is impossible to acknowledge deb t of gratitude to all by name. Attemp t has been made in Bibliography to give recognition to the sources and their specific contribution which has directly and indirectly helped me in the completion of this Training Package. During the course of my preparation of Training Package I visited many institutes and subject experts. The interaction gave a new insight to this package. In a wo rk like this I had to make extensive use of library material I put on record my thanks to the staff of Indian Law Institute, IIPA, ISTM, Jammu University, J&K IMPA (Jammu), for their unflinching co-operation and sustained assistance with good cheer. My sincere thanks to Ex-Director General IMPA Dr. S.S. Bloeria , Director General J&K IMPA Shri B.R. Singh , Colleagues, Administrative staff of J&K IMPA, Subject Experts, Participants Officers for their encouragement participation, co ntribution and suggestions in the validiatory workshop and subsequently the pilot run of the training package. I shall be failing in my duty if I do not express my grateful thanks to Sh. Venkateshan Joint Director Training DOPT and other Administrative Staff (Training) of DOPT for their time to time support, encouragement and co-operation. I whole-hearted ly acknowledge my deep sense of gratitude and appreciation of my parents, husband Er. K.L.Koul and sons Amit and Sumit, who have lovingly tolerated and endured my pre-occupation with this project. My special sincere thanks to Er. Sanjay Sharma IDTI, (Executive Manager), M/S Prismographix, Rajnesh Raina, Gothra Photostat and J&K IMPA, Computer Section for their excellent computer typing of the package. Dr, Sunita Zalpuri Koul ( Associate Professor) J&K IMPA, Jammu. Anchor Non-DLM DOPT-UNDP Project. Module – 1 208 Introduction T his training package has been designed for the senior level Administrators/Officers of the Central Government and the State Governments with a purpose to meet the challenges and needs of the contemporary society. The State activism has led to the inevitable result of state assuming more and more powers to regulate society through its three organs-Legislature, Judiciary and Executive. While increase in State activities has meant increased work for all the organs, yet the largest extension in depth and range of functions and powers has taken place at the level of executive-cum-administrative organ. We have come to live in an administrative age and administrative organ has become predominant and is on the ascendancy, its functions and powers have grown vastly over time. Administration is the all-pervading feature of life today with the growth of the society, its complexity also increases and this presents new problems for the administration. In fact the modern state is regarded as the custodian of social welfare, and consequently there is not a single human activity, which is free from direct or indirect interference by the State. The growth in the range of responsibilities of state has thus ushered in an administrative age and thereby need of Administrative Law. Administrative Law does not have a definite sphere of operation. Being entirely judge-made, unlike the laws relating to other subjects, such as crime, revenue, property and so on, administrative law by itself is not an independent subject of law. A question regarding application of the principles of administrative law may arise in the course of administration of any other branch of law. Though the precise content of administrative Module – 1 209 law is not capable of a definition, it is well accepted that its operation is confined to the realm of public law. Broadly, branches of law, which deal with those rights, obligations, duties or privileges of public authorities inter se and their relationship with private individuals, pertain to public law. Thus, administrative law presents a classical ex ample of judicial creativity and a high benchmark of judicial activism. This makes administrative law in India highly dynamic and perplexing at the same time worthwhile answering legitimate needs and aspirations of the people and provide an effective instrument in the hands of the people to combat governmental arbitrariness through the instrumentality of courts. It was born out of a desire on the part of judiciary to usher in a rule of law society by enforcing the norms of good governance and thus produced a rich wealth of legal norms and principles and added a new dimension to the discipline of administrative law in India. In recent times, there has been a phenomenal expansion of the horizons of administrative law. The pronouncements on the law of delegated legislation bear ample testimony to courts’ contribution. The liberal approach of the court in upholding the validity of both delegation of legislative powers and delegated legislation has absolved the legislature from performing their duty i.e. law making with all its essential attributes leading to expansion of the executive functioning and consequent enlargement of the jurisdiction of the courts by the process of judicial review. Administrative law deals with the delegated powers and procedures of non- legislative and non-judicial i.e. executive or administrative officials and agencies of Govt. and with Judicial review of their actions as they affect private interests. In other words Administrative law has developed not to sanctify executive arbitrariness but to check it and protect the rights of the people against the administrative excesses Module – 1 210 therefore the central theme of administrative law is also the reconciliation of liberty and power. Designed for: This package is designed for A, B, C level of the officers of the Central government and State government i.e. senior level and middle level officers of the government who are involved in ex ecuting the governmental policies to run the State. Need For Administrative Law Training It is the administrative organ of the State, which is the subject matter of administrative law. It is therefore essential that administrators/officials are well versed with the propounded principles of administrative law and therefore deliver effectively for good governance. It is in recognition of this fact that administrators need to enhance their administrative capabilities and thereby inculcate citizen-oriented attitudes as required. The most important component of this training is un doubtedly the changing of embedded perceptions and eliminate the misgivings about the subject matter. There is a need to develop both human and modern technology to improve efficiency. However priority should be given to human development. The organizations had usually been more sensitive to possibilities offered to them by achievement of modern technology rather than to the refinements of human behavior. We know that growth in science and technology in the present century has led to great structural changes and the aspiration of the people as to Quality of life has arisen. The socio-eco-politico multi -dimensional problems that the people face due to technological development cannot be solved except the growth of administration and Module – 1 211 law regulating administration. Infact technical innovations should be supported by corresponding changes in human attitudes and behaviour. In the era of rapid change, the improvement of management in its human aspect has become critical issue. Learning is an ongoing and perpetual process, which leads to the performance enhancement of the officers and the development of the organization. Keeping in view the needs of the administrators the inputs to be given in the form of knowledge skills and attitudes may be as under: 1. Knowledge of • = The concept of administrative law and its relevance in the present day governance. • = The constitutional provisions the importance of role of state and safeguarding public interest. • = The developmental strategies and principles evolved by the courts like the doctrine of promissory estoppel, doctrine of legitimate expectations and doctrine of public accountability. • = The anatomy of administrative power and its functions with special reference to delegated legislation. • = Administrative adjudication and characteristics of tribunals. • = Principles of natural justice and its relevance so far as administrative proceedings are concerned. • = The judicial review of administrative action . 2. Skills in • = Understanding the role of administrator • = public dealing and governance taking legal provisions and case law into considerations prior to any administrative decision making Module – 1 212 • = Arriving at just and fair decision • = Communication. 3. Attitudes • = Helping nature • = Concern about other’s problems • = Empathy • = Self examination of biases and prejudices • = Dealing fairly with others In order to remove misunderstanding on the various principles of administrative law and to develop the required professionalism in terms of knowledge, skills and attitudes this package has been designed with the following aims and objectives. Aim : - The Aim of the Package is: - 1. To provide opportunities to administrators to update their knowledge on the body of Law, Rules and Procedures which regulate and control the administrative machinery. 2. To impart the knowledge to Administrators on the subject of administrative law and thereby determining the ends and modes to which the administrative power shall be exercised for good governance. Style of the Course:- This is short participating course of 5 days with plenty of activity wherein the emphasis will be given to encourage the participant officers to share their experience on the subject matter and find out Module – 1 213 the disparity as to the actual law on the subject and the practical application. The principals evolved will be discussed by the latest case law on the subject and thereby deriving the learning on the subject matter. Methodology :- The emphasis will be given to help participants to tackle work related problems on Administration by frequently resorting to lecturing, Case law Quizzes; Examples and Case studies. The participants will be provided with the comprehensive selection of handouts and case law on the discussed topics. Objectives:- At the end of the course the participant Officers will be able to: - Explain the nature and scope of administrative law, separation of powers and recent developments on the subject: Describe the role of rule of law in administration: Module – 1 214 Discuss delegated legislation and executive legislation and control of delegated legislation Explain the necessity for injecting, Fairness and reasonableness in administrative decision making: Identify areas for application of principles of administrative law: Apply principles of natural justice and fairness on administrative action. Clarify the scope of judicial review of administrative action to explain the judicial review an administrative action through writ jurisdiction of the courts. Explain the inherent power of courts interference through public interest litigation for the benefit of community. Recognize the role of courts, to control the administrative powers, investigation and inquiry in the matter of social welfare. and Apply the principles of administrative law in good governance. Scheme of the package on Administrative Law The broad scheme of the package is that topics covering the discipline of the administrative law have been covered in four modules. It is intended that the contents of each module shall be covered on day wise basis as shown in the programme schedule i.e. first module will be covered by the five sessions on first day of the training. Similarly modules second, third and fourth would be covered subsequently by the sessions scheduled on second, third Module – 1 215 and fourth day respectively. As is shown in the programme schedule on next page. • = Module –1 First day • = Module –2 Second day • = Module –3 Third day • = Module –4 Fourth day Importance of Positive Attitude, Assignments presentation by participants Officers and Immediate Reaction Questionnaire on fifth day. • = There is ample scope for testing the understanding of Officers On Administrative Law Topics through inbuilt pretesting Questionnaires, case studies and case law. Objective/s DAY Session Topic Column 1,2,3&4 1 1 Session Pre-testing Quiz st 2 nd Session Administrative Law-An Overview Issues & Prospects 3 rd Session Classification of Administrative. Power 4 Session Delegated Legislation and Its Control th 5 Session Assessment/Testing Quiz th 5,6,7,8, . 9. 2 1st Session Administrative Discretion &Its Control 2 nd Session Administrative Adjudication /Tribunal 3 Session Principles of Natural Justice rd 4 th Session Disciplinary Action & Public Servant 5 th Session Case Study on Principles of Natural Justice Module – 1 216 10,11&12 3 1 st Session Judicial Review & Its Exclusion 2 Session Constitutional Remedies nd 3 rd Session Judicial Control of Administrative action Through Writs 4 th Session Public Interest Litigation 5 Session Assessment Questionnaire th 4 1 st Session Redress Of Public Grievances &Institution 13,1415, &16. Of Ombudsman 2 nd Session Public Undertakings & Public Corporations 3 Session Civil Services & Role of Public rd Administration in ef fective governance 4 Session State Liability in Contracts and Torts th Privileges and Immunities in Suits of the State 5 Session Group Discussion on Administrative Law th 5 1 st Session Re-capitulation and Summation 2 nd Session Importance of Positive attitude for Administrators 3 Session Presentation by Participant Officers. rd 4 Session Immediate Reaction Questionnaire th 5 th Session Valediction Scheme of the package on Administrative Law Module –1 First day MODULE-1 Administrative law –an overview Rule of Law Separation of Powers Classification of administrative power Module – 1 217 Delegated legislation & its control Scheme of the package on Administrative Law Module –1I Second day MODULE-11 Administrative discretion& its control. Administrative adjudication /tribunal Principles of natural justice Disciplinary action against public servant Module – 1 218 Scheme of the package on Administrative Law Module –1I Third day MODULE -III Judicial review & its exclusion Constitutional remedies Judicial control of administrative action throughWrits Module – 1 219 Public interest litigation Scheme of the package on Administrative Law Module –1I Fourth day MODULE-IV Redress of public Grievances Institution of Ombudsman Sta te liability in Torts State liability in Contracts Privileges & Immunities Public Undertakings Module – 1 220 Role of public Administration in Good Governance Module – 1 221 This Training Package Contains: 1) FOR PARTICIPANTS: • = Course Guide • = Primary Reading Material 2) FOR TRAINER: • = Session Guide For Trainer/ Process Sheet • = Transparencies • = Quizzes • = Case Study • = Trainer Tips • = Action Plan Module – 1 222 • = Assignments • = IRQ Process Sheet/Sessions Guide DAY 1 Time Activity Technique / Media 9:30 PREPARATION: • = Checking Materials & Equipment / Logistics • = Ensure seating arrangements • = Distribution of folders & Reg. Forms • = Registration, Collection of Forms & Briefing 10:00 INAUGURATION : • = Welcome by Course Coordinator / Trainer • = Introduction of trainees (very brief) Name & Organization • = Inaugural Address by Chief Guest if any 10:30 Tea break Display Flip Chart 11:00 Reassemble : (F/C ) • = Introduction & Expectation sharing of trainee Officers / Ice breakers / Knowing each other • = Introduction sought with a purpose to Name Organization ascertain the Entry Designation Behavior Experience Expectations: Course / Trainer / Trainees Jot down expectations of the trainee officers on the transparency sheet and white board Course Guide to be distributed thereby giving chance to 11:15 the Participants to go through it and specially on objectives methodology and course program schedule. 11:30 Ist Session : White board for major points to 1:30 Administrative Law : Conceptual Analysis – Issues & Show 2 hrs. Prospects session Transparency in • = Introduction to Administrative Law Chronological • = Need to study Administrative Law order • = Establish rationale behind Administrative Law training • = Now distribute pre testing questionnaire (Pre- Module – 1 223 prepared) OHP/Trsp. • = The time for the quiz is ten minutes • = Discuss the questions with trainee officers • = The responses are then to be analyzed by the facilitator by involving all the participants in the follow-up discussion on the questions covering the general principles of Administrative Law and its utility in the governance • = The following points are to be kept in mind while analyzing different responses. • = Ask the participants having preliminary knowledge of principles of Administrative Law • = Find out the differences in the responses of the trainees having legal academic background & of the officers having academic background other than law • = Decide about the standard of intervention to fill the performance gap of participants through relevant legal provisions / principles & latest case law on the subject matter Second Session : Constitutional Principles & Administrative Law • = Sources of Adm. Law • = Rule of Law • = Separation of powers • = Future Role of the Administrative Law 01:30 Lunch break to 2:30 Note on 2:30 to 3rd Session : 3:30 Classification of Administrative powers W/B • = Ask participants about the Administrative power of the State & What type of powers they are discharging Show in their respective offices • = Start discussion on the topic & show Transparencies OHP • = Discuss in detail the quasi – judicial & quasi legislative powers of the Executives and bring out the concept Tea – break 3:30 to 4.00 Show 4:00 to 4th Session : 5:00 Delegated Legislation & Its Control OHP • = Bring about the need of delegated legislation • = Bring out with the help of case law when delegated legislation is ultra vires On White 5:00 to 5th Session : 5:20 Assessment / Testing the Understanding of Trainees board regarding aforementioned topics • = Distribute the Pre-structured questionnaire among the participants and seek their responses within ten Module – 1 224 minutes • = Discussion on major points after scrutinizing the responses of the trainees White 5:20 to Summarization 5 :30 • = Summarize all the four topics of the first day of the board program Flip chart Display Flip Chart 5:30 to Assignment for tomorrow 5:45 • = Distribute the participants into four or five groups depending upon the total number • = Each group should comprise of four to five officers & name them for e.g. A,B,C,D & E • = Assignment on different aspects of Administrative Law to be given to each group for preparation & presentation • = Pre-prepared guidelines for making presentations on the assignments also to be given to the participants on the last day of the training Day – 2 White 9:30 to Recap 10:00 board OHP 10:00 Ist Session : to Administrative Discretion and its Control 11:00 • = Bring out the impact of the fundamental rights as a basis to the judiciary for controlling the administrative discretion • = Particularly with articles 14 & 19 • = Discuss the exercise of the discretion in the ex cess of the authority i.e. ultra vires and also improper exercise of the discretion • = Discuss clearly the major basis of Judicial review i.e. the legitimate expectation • = Discuss also the improper purpose, irrelevant consideration and malafide purpose as a ground for quashing administrative order Tea-break 11:00 to 11:30 WB/OH 11:30 IInd Session : to Administrative Directions and power of inquiry P 12:30 • = Discuss Administrative directions & their standing Module – 1 225 • = Power of inquiry & other allied matters to be brought out clearly with the help of transparencies WB/OH 12:30 3rd Session : to 1:30 Administrative Adjudication P • = Need for Adjudication by Administrative bodies • = Status of a tribunal • = Requirements for conducting trials summary in nature • = Bring out clearly the role of tribunal in adjudicating the matters of general public Central Administrative Tribunal its functioning & Structure • = Show transparencies and discuss the relevance of CAT so far as deciding the cases relating to service matters of the government employees Lunch-break 1:30 to 2:30 WB/OH 2:30 to 4th Session : 3:30 Principles of Natural Justice P • = Rules as to impartiality & fairness • = Bias & right to hearing • = Relevance of injecting the principles of natural justice in the administrative action of the State • = Show all the transparencies • = Discuss the trend setting cases on the application of principles of natural justice • = Discuss implication of non-application of principles of natural justice 3:30 to Tea-break 4:00 WB/OH 4:00 to 5th Session : 5:30 Case study P • = Distribute the case study (which comprises of facts of two important cases decided by the courts) to the participants • = Ask the participants to go through both the cases & respond to the questions given • = Relate the responses to the actual legal provisions / principles decisions of the court and there by discuss all the relevant points • = This will help in fostering the relevant lapses and also ensure productive transfer of learning on the subject to the trainee officers • = Involve all the participants in the follow up discussions Module – 1 226 WB 5:30 to Summarize the topics covered on second day of the 5:40 training Display 5:40 to Assignment for tomorrow 5: 45 Flip Chart Day – 3 9:30 to Recap WB 10:00 10:00 Ist Session : Show TP in a to Judicial Review of Administrative Action chronological 11:00 order • = Show transparencies and bring out the clarity with the help of decided cases • = Bring out the provisions clearly & the principles evolved by the Courts Tea-break 11:00 to 11:30 Show TP 11:30 IInd - Session : to Constitutional Remedies with special reference to 12:30 Article 32, 226 & 136 • = Modes of Judicial control • = Discuss under what circumstances Judicial review can be excluded 12:30 IIIrd – Session : Show TP to 1:30 Judicial Control of Administrative action through writs • = Discuss writ of Habeas Corpus, writ of Manadumus, writ of Certioari, writ of Prohibition and writ of Quo- warranto Lunch-break 1:30 to 2:30 Show TP 2:30 to IVth- Session : 3:30 Public Interest litigation Discuss case law on the subject to bring out the clarity about the role of courts in settling the disputes of the general public Tea-break 3:30 to 4:00 4:00 to Vth-Session : 5:30 Pre-structured question answer session & followed by discussion • = Give One hour time to the participants to respond & discuss all the responses in the light of the sessions covered on third day of the course Module – 1 227 Test the understanding of the participants and there by fill the gaps 5:30 to Summarization & assignment for tomorrow 5:45 Day – 4 9:30 to Recap 10:00 10:00 Ist Session : Show TP to Redressel Mechanism & Parliamentary control 11:00 • = Discuss the institution of Ombuds man for checking the administrative faults • = The role of central vigilance commission & CBI to check corruption • = The right to know & its requirements in the present day functioning of the state and thereby ensure transparency & openness in the governmental functioning • = Discretion to disobey Tea-break 11:00 to 11:30 11:30 IInd Session : Show TP to Public undertakings & public corporation 12:30 • = Bring out the reason for the growth of public corporation • = Discuss the Meaning, characteristics of public corporation • = Discuss control of public corporation • = Discuss status of the public corporation 12:30 IIIrd Session : to 1:30 Civil services in India & Role of public administration • = Discuss the administrative ethics & integrity in civil services • = Discuss accountability as essential requirements for good governance Lunch-break 1:30 to 2:30 2:30 to IVth Session : 3:30 The Liability of the State in Torts & liability of State in Contract • = Discuss the liability of State in Torts with the help of the case law • = Also discuss the personal liability of the employes of the state • = Discuss the liability of the state to pay the Module – 1 228 compensation for its wrongs • = Discuss the liability of the States so far as the government contracts are concerened Tea-break 3:30 to 4:00 Show TP Vth Session : 4:00 to 4:30 Privileges & Immunities of the State in suits • = Privilege of notice & to with hold documents • = Immunity from statute operation • = Immunity from estoppel • = Bring out the concept of promisory estoppel VIth Session ; 4:30 to 5:30 Group discussion on Administrative law & its application in future for effective governance • = Start the discussion with the help of high order question & subsequently control the discussion with the help of key questions • = Summarize & consolidate the consensus reached on that topic Consolidation & assignment for tomorrow 5:30 to 5:45 Day – 5 White 9:30 to Recapitulation 10:30 Positive Attitude for Administrators for effective board functioning. Tea-break 10:30 to 11:00 11:00 Presentation by the groups on assigned topics to 1:00 • = Ensure all the participants take part in presentation 1:00 to Action plan 1:30 Lunch-break 1:30 to 2:30 2:30 to Immediate reaction questionnaire about the course 3:00 3:00 Valiediction p.m. Module – 1 229 Assessment quizzes: Pre – testing quiz Questionnaire - I Questionnaire - II Module – 1 230 PRE – TESTING QUIZ Q1. Administrative Agencies derive their authority from? ________________________________________________________ ________________________________________________________ _ ________________________________________________________ _ ________________________________________________________ _ ________________________________________________________ _ Q2. Administrative law deals with what? Give your answer in five lines. ________________________________________________________ Module – 1 231 ________________________________________________________ _ ________________________________________________________ _ ________________________________________________________ _ ________________________________________________________ _ Assessment Quiz- Pre-testing 1 Q3. The two important concepts underlying administrative law are? Name them. ________________________________________________________ ________________________________________________________ _ ________________________________________________________ _ ________________________________________________________ _ ________________________________________________________ _ Q4. The concept of Droit Administratif was developed in which country? ________________________________________________________ ________________________________________________________ _ ________________________________________________________ _ Module – 1 232 ________________________________________________________ _ ________________________________________________________ _ Q5. Delegated legislation is both inevitable and indispensable. How far do you agree with the statement that the unlimited right of delegation is inherent in the legislative power itself? Say Yes or No with reasons. ________________________________________________________ ________________________________________________________ _ ________________________________________________________ _ ________________________________________________________ _ Q6. In case of tortious act done by a servant of the state, there can be action Assessment Quiz- Pre-testing 2 for damages say Yes or No. ________________________________________________________ ________________________________________________________ _ ________________________________________________________ _ ________________________________________________________ _ ________________________________________________________ _ Module – 1 233 Q7. The Judicial Control of Administrative action is through writs. How many writs are there and name them? ________________________________________________________ ________________________________________________________ _ ________________________________________________________ _ ________________________________________________________ _ ________________________________________________________ _ Q8. Speaking of administrative agencies and tribunals, it may be said these are two names of the same thing. Say Yes/No. ________________________________________________________ ________________________________________________________ _ ________________________________________________________ _ ________________________________________________________ _ ________________________________________________________ _ Assessment Quiz- Pre-testing 3 Q9. The basis of judicial control of delegated legislation is? Module – 1 234 ________________________________________________________ ________________________________________________________ _ ________________________________________________________ _ ________________________________________________________ _ ________________________________________________________ _ Q10. State the correct answer: Appeal against the decision of tribunal under Administrative Tribunals Act, 1985, can be made to a) Supreme Court b) High Court c) Central Vigilance Commission. Q11. A public undertaking or corporation has the status of juristic person say Yes or No. ________________________________________________________ ________________________________________________________ _ ________________________________________________________ _ ________________________________________________________ _ ________________________________________________________ _ Module – 1 235 Assessment Quiz- Pre-testing 4 KEY Ans.1. Constitution Ans.2. It is the law relating to administration; it determines the powers and duties of the administrative authorities; what are the limits of those powers; what are procedures followed by those administrative authorities and what are the remedies available to a person affected by administration. Ans3. Rule of Law and Separation of Power. Ans.4. France Ans.5. The delegation of legislative function to executive is inevitable .No,It is well settled that the legislatures can delegate their powers to the executive within the limits of constitution and the essential legislative functions cannot be delegated Ans.6. No Ans.7. Five and Writ of habeas corpus, Mandamus, Quo- warranto, Prohibition and Certiorari Ans. 8. Yes Ans.9. Doctrine of ultra vires Module – 1 236 Ans.10. Supreme Court Ans.11. Yes Assessment Quiz- Pre-testing - Key 5 Questionnaire -1 The questions, which follow, are designed to test the grasp of the subject matter discussed in module 1 of training course of adm inistrative law. The answer key to the questions will be subsequently distributed to the participant officers after all pros and cons on the subject are discussed by way of following questions. You are requested to give your appropriate answer to the questions from the choices given: 1. Danger of injustice lies in? (a) Blended power (b) Unchecked power (c) Both (d) Neither 2. It may be said that administrative law deals with? (a) Transfer of power by the legislature to be administrative agencies. (b) Exercise of power by the administrative agencies. (c) Judicial review of administrative action (d) None of these (e) All of these 3. Administrative agencies derive their authority? (a) From a ‘code’ (b) From the constitution alone Module – 1 237 (c) From the law made by the agencies (d) From all of these 4. With a well functioning legislature and judiciary? (a) No problems can arise requiring attention of a separate administrative body (b) Problems can arise only if the legislature and the judiciary are at daggers drawn Assessment quiz – Questionnaire -1 1 (c) The need for expertise and concentration upon the problem as a whole still requires the development of administration process (d) None of the above is true 5. The idea of separation of power by a system of legal checks and balances is credited to? (a) Plato (b) Montesquieu (c) Julius Caesar (d) None of the above 6. The structuring of the administrative law in France and in India is? (a) Identical (b) Different (c) Similar (d) None of the above 7. Administrative Law as a separate discipline is? (a) Centuries old (b) A couple of decades old (c) The product of the present century (d) None of the above 8. An administrative body is not answerable to any ordinary court in? (a) France (b) England Module – 1 238 (c) India (d) Nowhere 9. The Constitution of India? (a) Provides for separation of powers in rigid sense (b) Has no scheme of separation of powers in a rigid sense (c) Is not concerned with the subject of separation of powers (d) Does not show any of the above to be true Assessment quiz – Questionnaire -1 2 10. The nature of administrative law is rigid and streamlined? (a) This statement is true (b) The general principles are well settled but their application depends necessarily on the totality of the circumstances and facts (c) Neither of the above statement is true 11. The statement that administrative law determines the organization, powers and duties of administrative authorities? (a) Applicable only to U.K. (b) Applicable to India also (c) Not applicable anywhere (d) Not correct 12. Delegated legislation is? (a) The phenomenon of shirking of responsibility (b) The phenomenon of gathering some funds for political purposes (c) The phenomenon of empowering an administrative agency which has acquired expertise in one field to effectively discharge its functions (d) None of the above 13. Under delegated legislation? (a) The powers given to the executive may be vague and ambiguous (b) The powers given to the executive may be as the competent authority likes Module – 1 239 (c) The powers given to the executive must be clearly spelt out explicitly worded (d) None of the above apply 14. Under the umbrella of explicitly worded delegation? (a) The wording may empower the delegate to do whatever he may feel inclined (b) The wording may empower the delegate to do whatever he may deem necessary or advisable provided the action can be related to one of the prescribed purposes (c) Both (a) & (b) may be done (d) Neither (a) nor (b) may be done Assessment quiz – Questionnaire -1 3 Key Questionnaire -1 Ans. 1. (b) Unchecked Power Ans. 2. (e) All of these Ans. 3. (d) From all of these Ans. 4. (c) The need for expertise and concentration upon the problem as a whole still requires the development of administration process Ans. 5. (b) Montesquieu Ans. 6. (b) Different Ans. 7. (c) The product of the present century Ans. 8. (a) France Ans. 9. (b) Has no scheme of separation of powers in a rigid sense Ans. 10. (b) The general principles are well settled but their application depends necessarily on the totality of the circumstances and facts Module – 1 240 Ans. 11. (b) Applicable to India also Ans. 12. (c) The phenomenon of empowering an administrative agency which has acquired expertise in one field to effectively discharge its functions Ans. 13. (c) The powers given to the executive must be clearly spelt out explicitly worded Ans. 14. (b) The wording may empower the delegate to do whatever he may deem necessary or advisable provided the action could be related to one of the prescribed purposes Assessment quiz – Questionnaire -1, Key - 1 4 Questionnaire – 2 1. The principles of natural justice? (a) are fixed and their components are not variable (b) are laid down in the statutes under which an ad judicatory body functions (c) are not “embodied “ rules (d) require proceedings in administrative adjudication to be as formal as in a court of law 2. The ground of “error of law apparent on the face of the record” is connected with the writ of ? (a) Prohibition (b) Certiorari (c) Mandamus (d) Habeus corpus 3. Administrative law is the law relating to administration. It determines the organizations, powers and duties of the Module – 1 241 administrative authorities. The definition of administrative law has been given by? (a) Prof. U.P.D. Kesari (b) Prof. I. P. Massey (c) Bernard Schwartz (d) Sir Ivor Jennings 4. The concept of Droit administrative was first developed in? (a) India (b) Germany (c) England (d) France Assessment quiz – Questionnaire -2 1 5. In which of the following contexts the decision in Maneka Gandhi is important in administrative law? (a) Rule of Evidence (b) Separation of powers (c) Delegated legislation (d) Right of hearing 6. The expression "New Despotism" used by Hewart refers to: (a) Administrative law (b) Constitutional law (c) Rule of law (d) Public law 7. An official whose resignation is not required to be accepted resigns and continues to work even after resignation. Which is the appropriate writ to be issued against him? a. Mandamus b. Prohibition c. Quo – warranto d. Certiorari 8. The object of Central Vigilance Commission is to check corruption Module – 1 242 (a) Government servants (b) Public (c) Members of the Legislative Assembl (d) Ministers 9. An act empowered the State Government to requisition any property for any public purposes if in the opinion of the government are was necessary or expedient to do so. Is the function? (a) Judicial (b) Quasi-Judicial (c) Administrative (d) Legislative Assessment quiz – Questionnaire -2 2 10. State the correct answer Administrative Tribunals generally exercises? (a) Purely administrative functions (b) Administrative function (c) Judicial function (d) Quasi-Judicial function 11. Wrongful assumption of a public office can be corrected by a writ of: (a) Quo Warranto (b) Mandumus (c) Prohibition (d) Certiorari 12. State the correct answer. A public corporation is: (a) A citizen of India (b) A department of the government (c) A State within the meaning of Article 12 of the Constitution Module – 1 243 (d) None of the above. 13. "Bias disqualifies a person from acting as judge" flows from any two principles of the following: (a) No one should be the judge in his own (b) Justice must not only be done under dictation (c) Justice should be supposed to be done (d) Justice should not be done under dictation. Assessment quiz – Questionnaire -2 3 Key Questionnaire -2 Q.1 D Q.2 B Q.3 D Q.4 D Q.5 D Q.6 A Q.7 C Q.8 A Q.9 D Module – 1 244 Q. 10 D Q. 11 A Q. 12 C Q. 13 A Assessment quiz – Questionnaire -2, Key - 2 4 TRAINER TIP TRAINER TIP For group discussion, the trainer is required to lead a discussion with a clear objective and topic heading. The trainer has to help the group to explore the topic and focus the attention of the group members on areas needed to be analyzed and the skill of trainer lies in stimulating a good exchange of opinions while keeping learner to theme so as to generate effective learning in them. Therefore trainer needs to clarify learners / group members understanding and to challenge assumptions and by summarizing the conclusions and contributions. Module – 1 245 TRAINER TIP The trainer has to help participant to develop their knowledge and skills on different aspects of administrative law for good goverance. The assesment is to be done on various aspects with informal feedback and adviced to individual participants thereof by providing the needed input with relevant intervention. TRAINER TIP The different topics to be prepared and to be presented on final day by participants should be given to each syndicate team, that will be required to discuss, prepare and present the concept paper to the group. The trainers purpose of giving assignments to the participants related to the different aspects of administrative law is to give, in-depth understanding of the subject matter and thereby achieve the learning objective. Because the concepts deliver during training sessions through classroom instructions appear to be abstract and theoretical but the preparation for the presentation on the assignments help the trainee to learn what, why and how of the subject. Module – 1 246 TRAINER TIP The trainer is required to assess / test the understanding of trainees regarding the discussed topics by distributing the pre-structured questionnaire and seek their responses. After scrutinizing the responses of the trainees discuss the major points and provide for remedial / corrective intervention. TRAINER TIP The trainer while discussing administrative law has to ensure that the relevant case law is Module – 1 247 discussed with the trainees for conceptual clarity of different concepts since Administrative Law is not codified like the Indian Penal Code and the CASE-STUDIES ON NATURAL JUSTICE Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative processes. They constitute the basic elements of a fair hearing having their roots in the innate sense of man for fair play and justice which is not that preserve of any particular race or country but is shared in common by all men. Natural justice occupies an area of crucial significance and great relevance to the Administrators. All the administrators are not very clear about the concept of natural justice. Some of them appear to be under the impression that the principles of natural justice are not applicable to administrative proceedings. A few administrators seem Module – 1 248 to believe that natural justice is an obstacle to effective and expeditious performance of administrative functions. It is in this background that the following two case studies have been drawn up on the basis of two important cases decided by the Supreme Court of India. By and large, they cover the entire gamut of Natural Justice and capture the emerging trends. Infact these two cases are the Trend Setters . These case studies have been designed for trainee officers with the following objectives: • = To clarify the concept of natural justice; • = To explain to the trainee officers the new trends and emerging dimensions of natural justice; • = To assist them in solving complicated questions of Law and fact involving natural justice; and • = To identify the need upon the trainees that observance of natural justice adds to the quality of decision-making and enhances the credibility of the system. These two case studies have been specially selected, for they are possessed of immense potential to equip the trainees with the requisite knowledge and skill and also with values and attitudes, so that while administering and applying Law in any proceeding or inquiry or investigation, they ensure vindication of justice by adopting a procedure which is just, fair and reasonable. Further, the principles of natural justice are neither codified nor embodied and as such, all of them should not and need not be indiscriminately and mechanically adopted in each and every case without regard to the complex realities, because unnatural expansion of Natural Justice may result in failure of justice. Module – 1 249 Case No. 1 Reference: A.K. Kraipak and others (Petitioners) Vs Union of India and others (Respondent) Citation: AIR 1970 S.C. 150. When the Constitution of India came into force (the 26 January, 1950), there were two All India Services, namely IAS and IPS in existence. Later on, another All India Service, know as IFS, was brought into being (1966). Naturally, the question of recruitment to the newly formed Indian Forest Service came up. Rules and Regulations were framed to provide for recruitment. Mention may be made of Indian Forest Service (Recruitment) Rules. 1966 and Indian Forest Service (Initial Recruitment) Regulations, 1966. It was laid down that the Central Government would recruit to the IFS from amongst the members of the State Forest Services who might be adjudged suitable. Fore the Module – 1 250 purpose of selection, special selection Boards would be constituted for different areas. The Boars would prepare lists of suitable officers and forward them to the Central Government. The lists would, thereafter, be referred to the Union Public Service Commission by the Central Government along with the records of the Officers included in the list and also of other eligible officers of the State Forest Services not included in the List. The Union Public Service Commission would then, after proper evaluation, make such recommendations to the Central Government as it might deem fit. The officers recommended by the Commission would be appointed to the IFS subject to the availability of vacancy in the State Cadre concerned. This was the background. One such special Selection Board was constituted for the State of Jammu and Kashmir. The Board consisted of the following members: - (i) Shri M.A. Venkataraman, the nominee of the Chairman, UPSC (ii) Inspector-General of Forests, Govt. of India. (iii) Chief Secretary to the Govt. of India. (iv) One Joint Secretary to the Govt. of India. (v) Shri Naquishbund, the Acting Chief Conservator of Forests, Jammu and Kashmir. The Board met at Srinagar in May 1967. No interview as conducted. The Board consulted the relevant records and selected 25 officers in the first instance. Subsequently, the Board added more names to the List of persons already selected. The Union Public Service Comission eventually accepted the final list, thus prepared by the Board. That list was then published. It was that List that turned out to be a bone of contention and became the subject of litigation. The name of Shri Naquishbund appeared at the top of List. He had been promoted to the post of Chief Conservator of Forests in Module – 1 251 1964. He was not yet confirmed in that post. There were officers, namely G. H. Basu, M. I. Baig and A. K. Kaul, who claimed that they were senior to him. Basu and Kaul had appealed to the post of Chief Conservator of Forests. The appeal of Basu was still pending when the aforesaid List was made. In that final List, the names of Basu, Baig and Kaul did not find any place. They felt very much aggrieved at their exclusion. Some other eligible officers including A. K. Kraipak also became extremely unhappy because they were also not se4lected. Some of them were serving as Conservators of Forests and Divisional Forest Officers. They filed potions before the Supreme Court of India, challenging the validity of that list. They attacked it on various grounds but for the purpose of this case study, reference would be made to the material contentions raised on behalf of the petitioners. Eminent advocates like Mr. A. K. Sen, Mr. Frank Anthony and Mr. C. K. Daphtary appeared for the petitioners. The thrust of the arguments advocated on behalf of the petitioners was that the selections, as reflected in the aforesaid list, were vitiated y gross violation of the principles of Natural Justice. They contended that Naquishbund himself was a candidate for being considered in the context of such selection Board. His membership of the Board and participation in the process of selection introduced personal bias and militated against the Natural Justice, resulting in gross failure of Justice. The principle of Natural Justice on which they relied was that a person should not be a Judge in his own cause. Module – 1 252 It was also argued that the List in question was liable to be quashed on account of subversion of Natural Justice, arising out of personal bias of a member of the Selection Board. The petitions were opposed by the Respondents, which included the Union of India. Mr represented the Union of India. Niren De. Attorney General of India. The case of the contenting Respondents was that the power given to and exercised by the Selection Board was a purely administrative power, because its duty was merely to select officers, who in its opinion were suitable for being absorbed into the Indian Forest Service. The Respondents pointed out that Mr. Naquishbund wholly withdrew himself from the deliberation of the Board when his case came up before it for consideration. He, therefore, did not take any part whatsoever in any discussion involving him and did not a in any manner influence the decision of the other members. The points sought to be made out by the Respondents may be formulated as follows:- (a) The principles of Natural Justice do not apply to proceedings before Administrative Authorities. (b) The withdrawal of and the consequent non-involvement of Naquishbund left no scope for holding that he acted as the Judge in his own cause. (c) The Selection Board was a mere recommendatory body and ultimate appointment depended upon the decision of the Govt. of India taken in consultation with the UPSC. Hence, the List prepared by the Selection Board was not vulnerable to be called into question, as it was not final. Module – 1 253 (d) In any event, all the selections made by that Board cold not be vitiated. The cases of Basu, Baig and Kaul might however, be reviewed, if considered necessary. Upon the pleadings of the parties and the rival contentions they raised before the Supreme Court, the points that fell for determination may be expressed as follows:- (i) What is meant by “Natural Justice” (ii) What are the basic principles of Natural Justice? (iii) Do they apply to proceedings of administrative/executive nature? (iv) Is there any distinction between quasi-judicial and administrative powers from the angle of applicability of the principles of Natural Justice? (v) Was it really necessary to find out whether or not Naquishbund had actually been biased? (vi) Was real likelihood of bias or even reasonable suspicion of bias sufficient to disqualify a person from deciding anything to the prejudice of anybody? (vii) Did the facts of the case attract the operation of the principle “a person should not be the Judge in his own cause.” (viii) Was there any violation of Natural Justice in the case under consideration? (ix) If so, were all the selections made by the Board bad? (x) Was the entire list prepared by the Selection Board liable to be quashed? Module – 1 254 Case No.II Reference: Maneka Gandhi (Petitioner) vs Union of India and another (Respondents) Citation : AIR 1978 SC 597. Smt. Maneka Gandhi had a passport for going abroad. It was issued to her on Ist June 1976 under the Passports Act, 1967. Module – 1 255 On 4 th July, 1977, she received a letter from the Regional Passport Officer, Delhi. That letter conveyed to her the decision of the Government of India to impound her passport and called upon her to surrender the same within seven days. No reason was, however, assigned in support of the decision to impound the passport. What was disclosed is that it was done in public interest. She wrote back to the passport officer demanding a copy of the statement of reasons as provided for under Section 10(5) of that Act. A reply came, not from the passport officer, but from the Minister of External Affairs, Govt. of India, on 6 July, 1977. The Government declined to furnish reasons fro what was th described as “in the interest of the general public”. Thereupon, she filed a petition under Article 32 of the Constitution of India before the Supreme Court. She challenged the action of the Government in impounding her passport and declining to give reasons for doing so. The union of India resisted her petition. A counter-affidavit was filed in Court on behalf of the Government in answer to the writ petition. It was divulged there that the petitioner’s passport was impounded because her presence in India was likely to be required in connection with proceedings before a Commission of Inquiry. The challenge made by the petitioner was founded, among other things, upon the following grounds:- (a) Section 10(3 (a) of the Passport Act, which authorized the Passport Authority to impound a passport, was violative of the equality clause contained in Article 14 of the Constitution of India, because it conferred vague and undefined power. Module – 1 256 (b) Her passport could not be impounded without giving her an opportunity of being heard in defense. The order was made in contravention of the rule of Natural Justice embodied in the maxim “Audi alter am Partem”. Hence, the order of impounding was null an void. (c) If sec. 10 (3) were read in such a manner as to exclude the right of hearing, then it would be invalid on account of arbitrariness. (d) Section 10(3) © also offended against Article 21 of the Constitution of India, since it did not prescribe any procedure within the meaning of that Article. Even if it was assumed that Section 10 (3) © prescribed a procedure, it was wholly arbitrary, unreasonable and unjust and therefore, not in compliance with the requirement of that Article. On behalf of the Union of India, it was submitted that the order impounding the passport of the petitioner was perfectly justified and that the petition was without merits and ought to be dismissed. In the counter-affidavit filed on behalf of the government of India, the various allegations made in the petition were denied. It was contended that there was apprehension that the petitioner was attempting or was likely to attempt to leave the country and thereby hamper the functioning of the Commission of Inquiry. It was urged on behalf of the govt. of India that having regard to the nature of the action involved in the impounding of a passport, the “audi alteram partem: rule must be held to be excluded, because if notice were to be given to the holder of a passport and reasonable opportunity afforded to him/her to show cause, he/She might, immediately, on the strength of the passport, make good his/her exit from the country and thereby frustrate the very object of impounding. Module – 1 257 Ultimately, the Attorney General informed the Court that the government of India was willing to hear the petitioner in respect of impounding of her passport. The premise was to give what might be described as “post-decisional hearing” and either to cancel or to confirm the order of impounding according to the results of such hearing. In the circumstances, the Supreme Court, by a majority, did not think it necessary to formally interfere with the impugned order. The Supreme Court, however, gave its anxious consideration to the issues of law involved in that case an expressed its opinions thereon. The important legal issues that came up for decision may be outlined as follows: (i) Should the rule of “audi alterm partem” be read into a statute, which authorizes an administrative body to decide to the prejudice of a person but does not expressly provide for a prior hearing to be given to the person likely to be affected by such decision? (ii) Can a post-decisional hearing adequately compensate absence of hering before taking of decision? (iii) Is mere prescription of some kind of procedure enough to comply with the requirements of Article 21 of the Constitution of India? (iv) Should the “Law”, as contemplated in Article 21 embody the principles of natural justice? (v) Has the Supreme Court of India injected into Article 21 the American concept of due process of law? (vi) Should a procedure be “just” fair and reasonable in order to fulfill the demand of Article21? Module – 1 (vii)Is it incumbent upon an administrative authority to observe the principles of Natural Justice? (viii)Are the principles of Natural Justice embodied or written rules? (ix)Are they amenable to situational variations? (x)What are the effects of breach of Natural Justice committed by an administrative authority? Will you kindly determine these points of Law? They have been raised for you to decide.