ossibility of bias is sufficient. A Judge should be able to act judicially

possibility of bias is sufficient. A Judge should be able to act judicially, objectively and without any bias. In such cases what the court should see is not whether bias has in fact affected the judgment, but whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. Bias as to the Subject-matter (3) . A judge may have a bias in the subject matter, which means that he is himself a party, or has some direct connection with the litigation, so as to, constitute a legal interest. “A legal interest means that the Judge is in such a position that bias must be assum ed.” The smallest legal interest will disqualify the Judge. Thus for example, members of a legal or other body, who had taken part in promulgating an order or regulation cannot afterwards sit for adjudication of a matter arising out of such order because they become disqualified on the ground of bias. Subject to statutory exceptions persons who once decided a question should not take part in reviewing their own decision on appeal. To disqualify on the ground of bias there must be intimate and direct connection between adjudicator and the issues in dispute To vitiate the decision on the ground of bias as for the subject matter there must be real likelihood of bias such bias has been classified by Jain and Jain into four categories:- (a) Partiality of connection with the issues; (b) Departmental or official bias; (c) Prior utterances and pre-judgement of Issues. (d) Acting under dictation. II Audi Alter am Par tem (Hear the other side) Rule of Fair Hearing Meaning, Object and Ambit The second principle of natural justice is audi alteram partem (hear the other side) i.e. no one should condemned unheard. It requires that both sides should be heard before passing the order. This rule insists that before passing the order against any person the reasonable opportunity must be given to him. This rule implies that a person against whom an order to his prejudice is passed should be given information as to the charges against him and should be given opportunity to submit his explanation thereto. 4 (See also National Central Cooperative Bank v. Ajay Kumar, A.I.R. 1994 S.C. 39). Module – 1 75 Ingredients of fair hearing Hearing’ involves a number of stages. Such stages or ingredients of fair hearing are as follows:- Notice: 1. Hearing starts with the notice by the authority concerned to the affected person. Consequently, notice may be taken as the starting point of hearing. Unless a person knows the case against him, he cannot defend himself. Therefore, before the proceedings start, the authority concerned is required to give to the affected person the notice of the case against him. The proceedings started without giving notice to the affected party, would violate the principles of natural justice. The notice is required to be served on the concerned person properly. However, the omission to serve notice would not be fatal if the notice has not been served on the concerned person on account of his own, fault. For example, in a case some students were guilty of gross violence against other students. The notice could not be served on them because they had absconded. The action of the authority was held to be valid as the notice could not be served on the students on account of their own fault. The notice must give suf ficient time to the person concerned to prepare his case. Whether the person concerned has been allowed suff icient time or not depends upon the facts of each case. The notice must be adequate and reasonable. The notice is required to be clear and unambiguous. If it is ambiguous or vague, it will not be treated as reasonable or proper notice. If the notice does not specify the action proposed to be taken, it is taken as vague and therefore, not proper. 2. Hearing: An important concept in Administrative law is that of natural justice or right to fair hearing. A very significant question of modern Administrative law is, where can a right to hearing be claimed by a person against whom administrative action is prepared to be taken? We know that right to hearing becomes an important saf eguard against any abuse, or arbitrary or wrong use, of its powers by the administration in several ways. A large volume of present day case law revalues around the theme, wherein courts are called upon to decide whether or not, in a particular situation, failure on the part of the administration to give as hearing is fatal to the action taken. There is no readymade formula to judge this question and every case is to be considered on its own merits. The right to hearing can be claimed by the individual affected by the administrative action from 3 sources. Module – 1 76 Firstly, the requirement of hearing may be spelt out of certain fundamental rights granted by constitution. Secondly, the statute under which an administrative action is being taken may itself expressly impose the requirements of hearing. Thus Art. 311 of constitution lays down that no civil servant shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action. According to the prevalent principles of judicial review of administrative action, courts have far greater control over administrative action involving a hearing ( or “fair hearing” to be sure) than they have otherwise. Thus, a more effective control-mechanism comes into force. Thirdly it has been reiterated over and over again that a quasi- judicial body must follow principles of natural justice. But this gives rise to another intricate question: what is quasi-judicial? Answer to this question is not easy as no “ quasi-judicial” from “ administrative”. A general test sometimes adopted for the purpose is that “ any person or body having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially” acts in a quasi-judicial manner. But it is not clearly defined as to what is meant by “acting judicially.” This proposition is vague in the extreme; it is even a tautology to say that the function is quasi- judicial if it is to be done judicially. How is one to ascertain whether an authority is required to act judicially or not? The statutes, it becomes a matter of implication or inf erence f ro the courts to decide, after reading a statute, whether the concerned authority acting under it is to act judicially. In the absence of any such explicit indication in a statute, it becomes a matter of implication or inf erence for the courts to decide, after reading a statute, whether the concerned authority is to act judicially or not. The courts make the necessary inference f rom “the cumulative eff ect of the courts make the necessary inference from “the cumulative effect of the nature of the right affected, the manner of the disposal provided, the objective criteria to be adopted, the phraseology use, the nature of the power conferred, of the duty imposed on the authority and the other indication afforded by the statute. “This prime facie is too broad a generalization, which is hardly adequate or articulate to predicate the nature of a function or a body with any certainty. The personality of a judge could make a substantial difference in the end-result, for one judge may be more inclined to lean towards a quasi-judicial approach by the administration in a particular context than another judge. The extension of the right of hearing to the person affected by administrative process has been consummated by extension of the scope of quasi-judicial and natural justice as well as by discarding the distinction between “quasi-judicial’ and ‘administrative’ and invoking the concept of fairness in administrative action. Hearing has thus become the Module – 1 77 norm, rather than an exception, in administrative process at the present- day. Requirements of fair hearing: A hearing will be treated as fair hearing if the following conditions are fulfilled:- 1. Adjudicating authority receives all the relevant material produced by the individual A hearing to be treated a fair hearing the adjudicating authority should provide the person-affected opportunity to produce all the relevant materials, which he wishes to produce. If the adjudicating authority does not allow the person affected to produce material evidence, the refusal will be violative of the rule of fair hearing. If the adjudicating authority refuses to hear a person who does not appear at the first hearing but appears subsequently during the course of hearing. It would be against the principle of natural justice. 2. The adjudicating authority discloses the individual concerned evidence or material which it wishes to use against him. It is the general principle that all the evidence which the authority wishes to use against the party, should be placed before the party for his comment and rebuttal. If the evidence is used without disclosing it to the affected party, it will be against the rule of fair hearing. The extent and context and content of the information to be disclosed depend upon the facts of each case. Ordinarily the evidence is required to be taken in the presence of the party concerned. However, in some situations this rule is relaxed. For example, where it is found that it would be embarrassing to the witness to testify in the presence of the party concerned, the evidence of the witness may be taken in the absence of the party. 3. The adjudicating authority provides the person concerned an opportunity to rebut the evidence or material which the said authority issues to use against him The hearing to be fair the adjudicating authority is not required only to disclose the person concerned the evidence or material to be taken against him but also to provide an opportunity to rebut the evidence or material. Cross-examination: The important question is, does it include right of cross-examination of witnesses? Whether it includes the right to cross- examination or not depends upon the provisions of the statute under which the hearing is being held and the facts and circumstances of the Module – 1 78 each case. Where domestic enquiry is made by the employees, right of cross examination is regarded as an essential part of the natural justice. In the case disciplinary proceedings initiated by the Government against the civil servants, the right to cross examination is not taken orally and enquiry is only a fact finding one. Hira Nath Mishra v. Rajendra Medical College , ( A.I. R 1973 S.C. 1260) in this case some male students were charged of some indecent behaviour towards some girl students. The accused male students were not allowed to cross-examine the girl students. The refusal allow the accused male students to cross examine the girl students was upheld and was not treated as violation of natural justice because allowing them the right of cross examination would have been embarrassing for the girl students. The ref usal was necessary for protecting the girl students from any harassment later on. Sometimes the identity of the witness is required to be kept confidential because the disclosure thereto may be dangerous to their person or property. In a case the externment order was served on a person by the Deputy Commissioner under the Bombay Police act. The said person was not allowed to cross-examine the witnesses. The refusal was not taken as violation of the natural justice because the witnesses would not like to give evidence openly against the persons of bad characters due to fear of violence to their person or property. Similarly in another case the business premises of a persons where searched and certain watched were confiscated by the authority under Sea Customs Act. The said person was not allowed to cross-examine the persons who gave information to the authority. There was no violation of the natural justice. The court held that the principles of natural justice do not require the authority to allow the person concerned the right to cross-examine the witnesses in the matters of seizure of goods under the Sea Customs Act. If the person concerned is allowed the right to cross- examine, it is not necessary to follow the procedure laid down in the Indian Evidence Act. Legal Representation : An important question is whether right to be heard includes right to legal representation? Ordinarily the representation through a lawyer in the administrative adjudication is not considered as an indispensable part of the fair hearing. However, in certain situations denial of the right to legal representation amounts to violation of natural justice. Thus where the case involves a question of law or matter which is complicated and technical or where the person is illiterate or expert evidence is on record or the prosecution is conducted by legally trained persons, the denial of legal representation will amount to violation of natural justice because in such conditions the party may not be able to meet the case effectively and therefore he must be given some protect ional assistance to make his right to be heard meaningful. Module – 1 79 Institutional Decision (One who decides must hear) In ordinary judicial proceedings, the person who hears must decide. In the judicial proceedings, thus the decision is the decision of the specific authority. But in many of the administrative proceedings the decision is not of one man or one authority i.e. it is not the personal decision of any designated officer individually. It is treated as the decision of the concerned department. Such decision is called institutional decisions. In such decision often one person hears and another person decides. In such decision there may be division in the decision making process as one person may hear and another person may decide. In Gullapalli Nageswara Rao v. A. P. State Road Transport Corporation the Supreme Court the hearing by one person and decision by another person has been held to be against the rule of fair hearing. But the actually the Administrative practice continues to permit the hearing by one person and decision by another. Post Decisional Hearing Post decisional hearing may be taken to mean hearing after the decision sometimes public interest demands immediate action and it is not found practicable to afford hearing before the decision or order. In such situation the Supreme Court insists on the hearing after the decision or order. In short, in situations where prior hearing is dispensed with on the ground of public interest or expediency or emergency the Supreme Court insists on the post decisional hearing. In Charan Lal Sadu V. Union of India the Supreme Court has held that where a statute does not in terms exclude the rule of predecisional hearing but contemplates a post decisional hearing amounting to a full review of the original order on merits it would be construed as excluding the rule of audi alteram partem at the pre-decisional stage. If the statute is silent with regard o the giving of a pre-decisional hearing, then the administrative action after the post decisional hearing will be valid. The opinion of Chief Justice P. N. Bhagwati with regard to the post decisional hearing is notable. In his foreword to Dr. I. P. Massey’s book Administrative Law, he has stated that the Supreme Court’s decisions in Mohinder Singh Gill V. E. C. ( A.I.R. 1978 S.C. 851) and Maneka Gandhi V. Union of India ( A.I.R. 1978 S.C. 597) have been misunderstood. It is clear that if prior hearing is required to be given as part of the rule of natural Module – 1 80 justice, failure to give it would indubitably invalidate the exercise of power and it cannot be read into the statute because to do so would be to defeat the object and purpose of the exercise of the power, that past decisional hearing is required to be given and if that is not done, the exercise of the power would be vitiated. ( Management of M/S M.S. Nally Bharat Engineering Co. Ltd. v. State of Bihar 1990 S.C.C. 48) In normal cases pre-decisional hearing is considered necessary, however in exceptional cases, the absence of the provision for predicisional hearing does not vitiate the action if there is a provision for post decisional hearing. Reasoned decision (Speaking Order) Meaning and Importance Reasoned decision may be taken to mean a decision which contains reason in its support. When the adjudicators bodies give reasons in support of their decisions, the decisions are treated as reasoned decision. A decision, thus supported by reasons is called reasoned decision. It is also called speaking order. In such condition the order speaks for itself or it tells its own story. The reasoned decision introduces f airness in the administrative powers. It excludes or at least minimizes arbitrariness. • = The right to reasons is an indispensable part of sound judicial review. The giving of reasons is one of the fundamental of good administration. • = It has been asserted that a part of the principle of natural justice is that a party is entitled to know the reason for the decision apart from the decision itself. • = In another words, a party is entitled to know the reason, for the decision, be it judicial or quasi-judicial. This requirement to give reasons, however, is an approach quite new to administrative law, as the prevailing law is that the quasi-judicial bodies need not give reasons in support of their decisions, although in some cases, the court did insist upon making ‘ speaking orders’. But a change in the approach is being noticed since last few years and a growing emphasis is being laid on these bodies to give reasons for their decisions. • = The reasoned decision gives satisfaction to the person against whom the decision has been given. It will convince the person against whom the decision has been given that the decision is not arbitrary but genuine. It will enable the person against Module – 1 81 whom the decision has been given to examine his right of appeal. If reasons are not stated, the affected party may not be able to exercise his right of appeal effectively. Thus, the giving of reasons in support of the decision is now considered one of the fundamentals of good administration. In Sunil Batra v. Delhi administration , the Supreme Court while interpreting section 56 of the prisons act, 1894, observed that there is an implied duty on the jail superintendent to give reasons for putting bar fetters on a prisoner to avoid invalidity of that provision under article 21 of the constitution. Thus the Supreme Court laid the foundation of a sound administrative process requiting the ad judicatory authorities to substantiate their order with reasons. The court has also shown a tendency to emphasize upon the fact that the administrative order should contain reasons when they decide matters affecting the right of parties. Natural, Justice and Indian Constitution: The principles of natural justice in the modern context describe certain rules of procedure. It supplies the omissions of formulated law. The principles of natural justice are implicit in Article 14 and 21. The principles of natural justice have come to be recognized as being a part of the guarantee contained in Article 14 of the Constitution because of the new and dynamic interpretation given by the Supreme Court to the concept of equality, which is the subject matter of that Article. Violation of a rule of natural justice results in arbitrariness, which is the same as discrimination. Where discrimination is the result of State action, it is violation of Article 14. Therefore, a violation of principle of natural justice by a state action is a violation of Article 14. Article 14, however, is not the sole repository of the principles of natural justice. The principles of natural justice apply not only to legislation and Sate action but also where any tribunal, authority or body of men not coming within the definition of “State” in article 12, is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially. The constitution of India, while guaranteeing right to life and personal liberty in Article 21 in the same under “procedure established by law”, the expression procedure established by law was substituted by constituent Assembly for due process clause as embodies in American constitution Art. 21 of the constitution envisage. “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Module – 1 82 Thus the first attempt to incorporate the American principle (which includes principles of natural justice) in the Indian constitution was failed. Later in the A.K. Gopalan’s case , (AIR 1950 S.C 27) Supreme Court held that procedure established by law meant procedure prescribed by the statute. Obviously it implies that law enacted by the state need not be in conformity with the principles of natural justice. Law in Art. 21 meant statute law and nothing more. In case of a procedure prescribed by law it cannot be questioned on the ground that it violates principles of natural justice. There is no guarantee that it will not enact a law contrary to the principles of A learned author was prompted to observe that this position of Art.21of the Indian constitution was more of a statute justice land not natural justice. The interpretation of Art. 21 given in the Gopalan case in fact placed the liberty of the citizen at the mercy of the party in power. Natural justice supplies the procedural omissions of a formulated law. According to Jackson J. “It might be preferable to live under Russian law applied by common law Procedures, rather then under the Common law enforced by Russian procedure.” Gopalan’s decision dominated the Indian scene for twenty eight years till the decision of Supreme Court in the celebrated case of Monika Gandhi’s which revolution the application rules of natural justice in India. In the instant case, a writ petition was filed under Art. 32 challenging the impugned order interlaid amongst other grounds for being impugned for denial of opportunity of being heard prior the impoundment of passport. As per Maneka’s rationale, a procedure could no more be a mere enacted or state prescribed procedure as laid down in Gopalan’s but had to be fair, just and reasonable procedure. The most notable and innovative holding in Maneka was that the principle of reasonableness legally as well as philosophically is an essential element of equality or non-arbitrariness and pervades Art. 14 like a boarding omnipresence and the procedure contemplated by Art. 21 must stand the test of reasonableness in Art. 14. Bhagwatil J, for majority referring to audi alteram partem which mandates that no one shall be condemned unheard, remarked: “ Natural justice is a great humanizing principle intended to invest law with fairness and to secure justice and ever the year it has grown into a widely pervasive rule affecting large areas of administrative action. Thus the soul of natural justice is fair play in action and that is why it has received the widest recognition throughout the democratic world. In the United States, the right to Module – 1 83 an administrative bearing is regarded as essential requirement of fundamental fairness and in England too it has been held that fair play in action demands that before any prejudicial or adverse action is taken against a person he must be given an opportunity to be heard.” So the rules of natural justice were applicable to administrative proceedings positively. The learned judge emphasized that the Audi alteram rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice or to make the law lifeless, absurd, stultifying, self defeating or plainly contrary to the common sense of the situation. Further Bhagwai observed that it must not be forgotten that natural justice is pragmatically flexible and is amenable to capsulation under the pressure of circumstances. The core of it must however remain namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine and not an empty public relations exercise. This rule should be sufficiently flexible to suit the exigencies of myriad kinds of situations, which may arise. The learned judge insisted for post decisional hearing in situations was urgency demands prompt action which cannot wait for a formal hearing because than world defeat the very purpose of a action. Thus Maneka decision has resurrected American procedural due process in Art, 21 which was freed from the confines of Gopalan’s after about twenty eight years on ‘procedure’. In one more case of the Mohinder Singh Gill, deserves attention due to observation made by Krishna Iyer, J on the principles of natural justice. The judicial history of natural justice in England and India has been remarkably traced by Krishana Iyer, J in this case by observing that the natural justice in no mystic testament of judgment juristic, but the pragmatic yet principled, requirement of fair play in action as the norm of civilized justice- system and minimum of good government-crystallized clearly in our jurisprudence by catena of cases here and elsewhere. Further , Krishana Iyer observed in the instant cases: “The rules of natural justice are rooted in all legal systems, not any new theology and are manif ested in the twin principles…. while natural justice is universally respected, the standards vary withy situations contracting into a brief, even post-decisional opportunity, or expanding into trial-type trappings…good administration demands fair play in action and this simple desideratum is the foundation of natural justice. The rules of natural justice are not rigid norms of unchanging contents. Each of the two main rules embrace a number of sub rules, which may very in their application according to the context. In the words of the Supreme Court, the extent and application of the doctrine of natural justice cannot be imprisoned within the straitjacket of rigid formula. 33 ( V.N. Shukla, The Constitution of India, 388 (- 1974). Module – 1 84 Following Exceptions to Natural Justice Though the normal rule is that a person who is affected by administrative action is entitled to claim natural justice, that requirement may be excluded under certain exceptional circumstances. Statutory Exclusion: The principle of natural justice may be excluded by the statutory provision. Where the statute expressly provides for the observance of the principles of natural justice, the provision is treated as mandatory and the authority is bound by it. Where the statute is silent as to the observance of the principle of natural justice, such silence is taken to imply the observance thereto. However, the principles of natural justice are not incapable of exclusion. The statute may exclude them. When the statute. When the statute expressly or by necessary implication excludes the application of the principles of natural justice the courts do not ignore the statutory mandate. But one thing may be noted that in India, Parliament is not supreme and therefore statutory exclusion is not final. The statute must stand the test of constitutional provision. Even if there is not provision under the statute for observance of the principle of natural justice, courts may read the requirement of natural justice for sustaining the law as constitution. Emergency: In exceptional cases of urgency or emergency where prompt and preventive action is required the principle of natural justice need not be observed. Thus, the pre-decisional hearing may be excluded where the prompt action is required to be taken in the interest of the public safety or public morality, e.g., where a person who is dangerous to peace in the so morality e.g. Where a person who is dangerous to peace in the society is required to be detained or extended or where a building which is dangerous to the human lives is required to be demolished or a trade which is dangerous to the society is required to be prohibited, a prompt action is required to be taken in the interest of public and hearing before the action may delay the administrative action and thereby cause injury to the public interest and public safety. Thus in such situation dine social necessity requires exclusion of the pre-decisional hearing. However, the determination of the situation requiring the exclusion of the rules of natural justice by the administrative authorities is not final and the court may review such determination. In Swadeshi Cottoin Mills v. Union of India, the Supreme Court held that the word ‘immediate” in Section 18AA of the Industries Act does not imply that the rule of natural justice can be excluded. Public Interest. The requirement of notice and hearing may be excluded where prompt action is to be taken in the interest of public safety, or public health, and public morality. In case of pulling down property to extinguish fire, destruction of unwholesome food etc., action has to be taken without giving the opportunity of hearing. Module – 1 85 In Maneka Gandhi v. Union of India the Supreme Court observed that a passport may be impounded in public interest without compliance with the principles of natural justice but as soon as the order impounding the passport has been made, an opportunity of post decisional hearing, remedial in aim, should be given to the person concerned. In the case the court has also been held that “ public interest” is a justiciable issue and the determination of administrative authority on it is not final. Interim disciplinary action: The rules of natural justice is not attracted in the case of interim disciplinary action. For example, the order of suspension of an employee pending an inquiry against him is not final but interim order and the application of the rules of natural justice is not attracted in the case of such order. In Abhay Kumar v. K. Srinivasan an order was passed by the college authority debarring the student from entering the premises of the college and sttending the class till the pendency of a criminal case against him for stabbing a student. The Court held that the order was interim and not final. It was preventive in nature. It was passed with the object to maintain peace in the campus. The rules of natural justice were not applicable in the case such order. Academic evolution: Where a student is removed from an educational institution on the grounds of unsatisfactory academic performance, the requirement of pre-decisional hearing is excluded. T he Supreme Court has made it clear that if the competent academic authority assess the work of a student over period of time and thereafter declare his work unsatisfactory the rule of natural justice may be excluded. but this exclusion does not apply in the case of disciplinary matters. Impracticability: Where the authority deals with a large number of person it is not practicable to give all of them opportunity of being heard and therefore in such condition the court does not insist on the observance of the rules of natural justice. In R. Radhakrishna v. Osmania University , the entire M.B.A. entrance examination was cancelled on the ground of mass copying. The court held that it was not possible to give all the examinees the opportunity of being heard before the cancellation of the examination. EFFECT OF FAILURE OF NATURAL JUSTICE In England, for sometimes now, a question of some complexity which has been cropping up before the courts time and again is: When an authority required observing Module – 1 86 natural justice in making an order fails to do so, should the order made by it be regarded as void or a voidable? Generally speaking, a voidable order means that the order was legally valid at its inception, and it remains valid until it is set aside or quashed by the courts, that is, it has legal effect up to the time it is quashed. On the other hand, a void order is no order at all from its inception; it is a nullity and void ab initio . The controversy between void and voidable is making the England administrative law rather complicated. Before we go further, it may be necessary to enter into a caveat at this place with respect to a void ab initio , the uncertainties of administrative law are such that in most cases a person affected by such an order cannot be sure whether the order is really valid or not until the court decided the matter. Therefore, the affected person cannot just ignore the order treating it as a nullity. He has to go to a Court for an authoritative determination as to the nature of the order is void. For example, an order challenged as a nullity for failure of natural justice gives rise to the following crucial question: Was the authority required to follow natural justice? As the discussion in the previous pages shows, there is quite a good deal of uncertainty on both these points. Meagerly, J., brings out this point clearly Nevertheless, conceptually, there is a lot of difference between a void and voidable order. The question arises in various contexts and has a number of ramifications. It has great practical value insofar as the courts have taken recourse to conceptualistic logic to answer a number of questions. For example, the following are some of the question which arises in regard to orders passed infringing natural justice and which the courts have sought to answer by reasoning based on differentiation between void and avoidable orders, though not always with entire satisfaction: can infringement of natural justice be waived by the person affected? Are they protected? What is the effect of privatize clauses on such orders? Are they protected? Can the defect of failure of natural justice be cured later by the same body or by a higher body? Can the court issue a writ (certiorari) to quash such an order without the affected person having taken recourse to the alternative remedy available under the statute in question? Can the person affected ignore such an order without incurring any liability, civil or criminal? Can the government seek to enforce an order challenged as void because of failure of natural justice pending the course decision on the matter? Who can challenge such an over? If the law prescribes a time limit within which the order may be challenged, can it be challenged after the period of limitation? Can an order the challenged in collateral proceedings or only in direct proceedings to set it aside? Usually, a violable order cannot be challenged in collateral proceedings. It has to be set aside by the court in separate proceedings for the purpose. Suppose, a person is prosecuted criminally for infringing an order. He cannot then plead that the order is avoidable. He can raise such a plea if the order is void. But, as de Smith points out the case-law on the point is far being coherent Certiorari and not a declarations regarded as a suitable remedy for setting aside a void able decision. In India, by and large, the Indian case law has been free from the void/voidable controversy and the judicial thinking has been that a quasi-judicial order made without following natural justice is void and nullity. Module – 1 87 The most significant case in the series is Nawabkhan v. Gujarat S. 56 of the Bombay Police Act, 1951 empowers the Police Commissioner to ex tern any undesirable person on certain grounds set out therein. An order passed by the commissioner on the petitioner was disobeyed by him and he was prosecuted fro this in a criminal court. During the pendency of his case, on a writ petition filed by the petitioner, the High Court quashed the internment order on the ground of failure of natural justice. The trial court then acquitted the appellant. The government appealed against the acquittal and the High Court convicted him for disobeying the order. The High Court took the position that the order in question was not void ab initio ; the appellant had disobeyed the order much earlier than date it was infringed by him; the High Courts own decision invalidating the order I question was not retroactive and did not render it non-ext or a nullity from its inception but it was invalidate only from the date the court declared it to be so by its judgment. Thus, the arguments adopted by the high Court were consistent with the view that the order in question was void able and not void. However, the matter came in appeal before the Supreme Court, which approached the matter from a different angle. The order of internment affected a Fundamental Right) art. 19) Of the appellant in a manner which was not reasonable. The order was thus illegal and unconstitutional and hence void. The court ruled definitively that an order infringing a constitutionally guaranteed right made without hearing the party affected, where hearing was required, would be void ab initio and ineffectual to bind the parties from the very beginning and a person cannot be convicted non observance of such an order. “Where hearing is obligated by statute which affects the fundamental right of a citizen, the duty to give the hearing sound in constitutional requirement an failure to comply with such a duty is fatal. The appellant could not this be convicted for flouting the police commissioners order which encroached upon his Fundamental Right and had been made without due hearing and was thus void ab initio and so was never really inexistence. Nawabkhan raises some critical issues. A few general commons may, however, be made at this place Much for the confusion in Administrative Law India can be avoided if the rule is accepted that an order made ought to have been observed, is void ab intio . A person disobeys an administrative order at his own risk, for if he disobeys an order, and the court later holds it as not void, then he suffers the consequence, for whether an order is void or not can only be settled conclusively by a court order Accepting the void ness rule will make authorities take care in passing orders after fulfilling all the necessary formalities. It will also denude the courts of discretion whether to set aside an order or not in case of violation of natural justice. However, there may be some situations when illation of a void order may not be excusable, e.g. when a prisoner escapes from thereon thinning that the administrative order under which he has been detained is void. It is an area where no general principle can be held applicable to all the varying situations because what has to be reconciled here is public interest with private rights. In most of the cases i.e. staying the implementation of the order challenged until the court is able to decide the question on merits. Module – 1 88 DISCIPLINARY ACTION AGAINST PUBLIC SERVANTS: ITS SIGNIFICANCE I n every organization the conduct and discipline is very important. Every organization, public or private, has certain rules and regulations governing the conduct or behavior of its employees. A high moral standard of conduct among the public servants is of utmost necessity to set an example to the public at large. Integrity and discipline in the service are essential for an efficient personnel system. In order to prevent misuse of powers, a code of conduct to regulate the behaviour of the civil servants is enforced. With the transformation of passive police state into an active welfare state, drastic changes have been brought in the role of the state. Its administrative machinery influences every aspect of human life in numerous ways. Along with the ever- increasing responsibilities of powers of civil servants, administrative inefficiencies, such as red tapism, lethargy, corruption etc. crept into administration. Rapid growth in the numerical strength, continuos extension in the powers of civil servants, change in the concept of civil neutrality, shift from negative to positive work and increasing emphasis on moral and professional standards have become the modern trends of personnel administration and thus it gained momentum. If the public servants – the backbone of the government – are undermined by indiscipline and misconduct, it will lead to the collapse of administrative machinery. Constitutional Protection to Civil Servants In India government is the biggest provider of jobs to the people. According to an estimate in 1947 the strength of civil servants was 10 lakhs, which rose to 20 lakhs in 1978 and became 30 lakhs in 1993. However, this does not include the jobs in public sector undertakings. Maximum numbers of jobs provided by the government are in defense, railways and post offices. This tremendous growth in civil services was mainly due to the fact that without a big army of civil servants it was not possible to realize the dream of a Welfare State, which was the cornerstone of the Indian Constitution. India is the only country where law relating to service matters of the civil servants is provided in the constitution. Therefore Chapter XIV containing Articles from 308 to 323 providing protection to civil servants was included in the Constitution. However, Article 314 that provided protection to the members of Indian Civil Service was repealed by the Twenty-eight-Constitution Amendment Act, 1972 after the last member to the service retired. DISCIPLINARY ACTION – MEANING Disciplinary action means the administrative steps taken to correct the misbehaviour of the employee in relation to the performance of his/her job. Corrective action is initiated to prevent the deterioration of his/her job. Corrective action is initiated to prevent the deterioration of individual inefficiency and to ensure that it does not spread to other employees. Module – 1 89 A distinction needs to be drawn between disciplinary action of civil or criminal procedure. The former deals with the fault committed in office violating, the internal regulations or rules of the administration while the latter is concerned with the violation of law to be dealt with by civil and criminal courts. The following matters are covered in the Conduct Rules. More strictness is observed in those services where more discretion is involved: i) Maintenance of correct behaviour official superiors, ii) Loyalty to the State. iii) Regulation of political activities to ensure neutrality of the personnel, iv) Enforcement of a certain code of ethics in the official, private and domestic life. v) Protection of the integrity of the officials by placing restrictions on investments, borrowings, engaged in trade or business, acquisition or disposal of movable and immovable valuable property, acceptance of gifts and presents, and vi) Restriction on more than one marriage. CAUSES OF DISCIPLINARY PROCEEDINGS The following are the various causes of disciplinary proceedings. 1) Acts Amounting to Crimes a) Embezzlement b) Falsification of accounts not amounting to misappropriation of money c) Fraudulent claims (e.g. T.A.) d) Forgery of documents e) Theft of Government property f) Defrauding Government g) Bribery h) Corruption i) Possession of disproportionate assets j) Offences against other laws applicable to Government Servants. 2) Conduct Amounting to Misdemeanor a) Disobedience of orders b) Insubordination c) Misbehaviour Module – 1 90 i) with superior officers ii) with colleagues iii) with subordinates iv) with members of public d) Misconduct i) violation of conduct rules ii) violation of standing orders iii) intrigues and conspiracy iv) insolvency TYPES OF DISCIPLINARY ACTION Disciplinary action may be informal or formal. Informal disciplinary action may mean assignment to a less desirable work, closer supervision, loss or withholding of privileges, failure of consultations in relevant matters, rejection of proposals or recommendation. It may includes curtailing of his/her authority and diminishing his/her responsibility The reason for taking informal disciplinary action may be that offences are too slight, or too subtle, or too difficult to prove, to warrant direct and formal action. Formal disciplinary action follows where the offence is serious and can be legally established. In such cases the penalties that are imposed on a member of the service are; 1) Minor Penalties a) Censure b) Withholding of promotions c) Recovery from pay of the whole or part of any loss caused to Government or to a company, association or body of individuals. And d) Withholding of increments of pay. 2) Major Penalties a) Reduction to a lower stage in the time scale of pay for a specified period. b) Reduction to a lower time scale of pay, grade or post, and c) Compulsory retirement. Module – 1 91 In very serious cases of offence, even judicial proceedings against the offender may also be launched. MODE OF TAKING DISCIPLINARY ACTION Usually following provisions are made either in the Constitution or in the statute to check the misuse of power to take disciplinary actions : a) No employee shall be demoted or dismissed by an officer below in rank to one who had appointed him/her. b) No employee shall be punished except for a cause, specified in some statute or departmental regulation. c) No employee shall be punished unless he / she has been given reasonable opportunity to defend his / her case. d) The employee shall be informed of the charges laid against him / her. e) Where a board of Inquiry is appointed, it shall consist of not less than two senior officers, provided that at least one member of such board shall be an officer of the service to which the employee belongs. f) After the inquiry against an employee has been completed and after the punishing authority has arrived at any provisional conclusion in regard to the penalty to be imposed, if the penalty proposed is dismissal, removal, reduction in rank or compulsory retirement, the employee charged shall be supplied with a copy of the report of inquiry and be given a further opportunity to show cause why the proposed penalty should not be imposed on him / her. CONSTITUTION OF INDIA – DEALING WITH DISCIPLINARY MATTERS Article 309 provides that the Acts of the appropriate legislature may regulate the recruitment and conditions of service of the persons appointed to public services and posts in connection with the affairs of the Union or of any State. It shall be competent for the President or Governor as the case may be, to make rules regulating and recruitment and conditions of service of public service until provisions are made by an Act of the appropriate legislature. According to Article 310, every person who is a member of a defence service or the civil service of the Union or an All India Service or holds any post connected with defense or any civil post under the union holds office during the pleasure of the president, and every person who is a member of a civil service of a state or holds a civil post under a state holds office during the pleasure of the Governor of the State. Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or the Governor of the State, any contract under which a person, (not being a member of a defence service or of an All India Service or of a civil service of the Union or a State) is appointed under the Module – 1 92 Constitution to hold such a post may, if the President or the Governor deems it necessary in order to secure the services of persons having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is required to vacate that post. Article 311as amended by Forty-second. Amendment provides that no person who is a member of a civil post under the union or a state, shall be dismissed or removed by an authority subordinate to that by which he / she was appointed. No such person is aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he / she has been informed of the charges against him / her given a reasonable opportunity of being heard in respect of those charges. Where it is proposed after such enquiry to impose upon him / her any such penalty, such penalty may be imposed on the basis of the evidence provided during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed. This clause shall not apply where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his / her conviction on a criminal charge or where the authority empowered to dismiss or remove a person or to reduce him / her in rank is satisfied that for some reason to hold such enquiry. Or where the President of the Governor, as the case may be, is satisfied that in the interests of the security of the State, it is not expedient to hold such enquiry. If in respect of any such person as aforesaid, a question arises, whether it is reasonably practicable to hold the enquiry mentioned above, the decision thereon of the authority empowered the dismiss or remove such person or reduce him / her in rank shall be final. SUCCESSIVE STEPS INVOLVED IN DISPLINARY PROCEE DINGS The successive steps of the procedure of disciplinary action are: i) Calling for an explanation from the employee to be subjected to disciplinary action. ii) If the explanation is not forthcoming or is unsatisfactory, framing of charges; iii) Suspension of the employee if his / her remaining in the service is likely to prejudice the evidence against him / her. iv) Hearing of the charges, and giving opportunity to the employee to defend himself / herself; v) Findings and report; vi) Giving another opportunity to the employee to defend himself/herself against the purposed punishment. vii) Punishment order, or exoneration; and viii) Appeal, if any. Module – 1 93 ISSUES AND PROBLEMS There are various problems concerning the disciplinary proceedings. They are as follows: i) Lack of knowledge of the Disciplinary Procedure It has been seen many a time that the appointing authorities as well as employees are unaware of the details of the disciplinary procedures resulting in many problems. ii) Delays The time taken to take disciplinary action is very long. When an employee knows of the impending action, he / she becomes more and more irresponsible and problematic. Delays cause hardship to the employees. iii) Lack of fair Play There is a tendency that the appellate authority generally supports the decision of his / her subordinates. This defeats the purpose of appeal . iv) Withholding of Appeal Most of the officers do not like appeals against their decisions. There is a tendency to withhold appeals. v) Inconsistency Disciplinary action should be consistent under the same offence. Otherwise it leads to favoritism, nepotism and corruption. Module – 1 94 Module-III SUCCESS DOESN’T MEAN THE ABSENCE OF ULTIMATE OBJECTIVES. IT MEANS WINNING THE WAR, NOT EVERY BATTLE Edwin. C. Bliss Module – 1 95 Contents Pages Topic: Judicial review of Administrative Action 3-13 *The doctrine of ultra virus *Malafide exercise of Powers *Exclusion of judicial review Topic: Constitutional Remedies 14-34 *The judicial Control of administrative action *Constitutional provisions to control administrative actions under article 32 *226 and 136 of the Constitution. *Existence of alternative remedies *Scope of high Courts jurisdiction under article 226 *Remedy through special leave to appeal under article 136 *Ordinary remedies *Injunction *Declaratory action and *Action for damages Topic: Judicial Control of Administrative Action through Writs 35- 52 *Writ of habeas Corpus *Writ of Mandamus *Writ of Certiorari *Writ of Quowarranto *Writ of prohibition Topic: Public Interest Litigation 53- 59 *Meaning of public interest litigation *Reasons for the growth of Public interest litigation *Development of Public interest litigation in India. Module – 1 96 Judicial Control of Administrative Action I t is a admitted fact that the administrative authorities now a days are conferred on wide administrative powers which are required to be controlled otherwise they will become new despots. The Administrative Law aims to find out the ways and means to control the powers of the administrative authorities. In the context of increased powers for the administration, judicial control has become an important area of administrative law, because Courts have proved more effective and useful than the Legislature or the administration in the matter. “It is an accepted axiom” observed Prof. Jain & Jain that “the real kernel of democracy lies in the Courts enjoying the ultimate authority to restrain all exercise of absolute and arbitrary power. Without some kind of judicial power to control the administrative authorities, there is a danger that they may commit excess and degenerate into arbitrary authorities, and such a development would be inimical to a democratic Constitution and the concept of rule of law. “ Judicial Control (Judicial Remedies). Judiciary has been given wide powers for controlling the administrative action. The Courts have been given power to review the acts of the legislature and executive (administration) and declare them void in case they are found in violation of the provisions of the Constitution. In India the modes of judicial control of administrative action can be conveniently grouped into three heads: (A) Constitutional; (B) Statutory; (C) Ordinary or Equitable . JUDICIAL REVIEW & ITS EXCLUSION Module – 1 97 Judicial review, in short, is the authority of the Courts to declare void the acts of the legislature and executive, if they are found in the violation of the provisions of the Constitution. Judicial Review is the power of the highest Court of a jurisdiction to invalidate on Constitutional grounds, the acts of other Government agency within that jurisdiction. The doctrine of judicial review has been originated and developed by the American Supreme Court, although there is no express provision in the American Constitution for the judicial review. In Marbury v. Madison the Supreme Court made it clear that it had the power of judicial review. In England there is supremacy of Parliament and therefore, the Act passed or the law made by Parliament cannot be declared to be void by the Court. The function of the judiciary is to ensure that the administration or executive function conforms to the law. The Constitution of India expressly provides for judicial review. Like U.S.A., there is supremacy of the Constitution of India. Consequently, an Act passed by the legislature is required to be in conformity with the requirements of the Constitution and it is for the judiciary to decide whether or not the Act is in conformity with the Constitutional requirements and if it is found in violation of the Constitutional provisions the Court has to declare it unconstitutional and therefore, void because the Court is bound by its oath to uphold the Constitution. The Constitution of India, unlike the American Constitution expressly provides for the judicial review. The limits laid down by the Constitution may be express or implied. Articles 13, 245 and 246, etc. provide the express limits of the Constitution. The provisions of Article 13 are: Article 13 (1) provides that all laws in force in the territory of India immediately before the commencement of the Constitution of India, in so far as they are inconsistent with the provision of Part III dealing with the fundamental rights shall, to the extent of such inconsistency, be void. Article 13 (2) provides the State Shall not make any law which takes away or abridges the fundamental rights and any law made in contravention of this clause shall, to the extent of the contravention, be void. Article 245 makes it clear that the legislative powers of Parliament and of the State Legislatures are subject to the provisions of the Constitution. Parliament may make laws for the whole or any part of the territory of India and the legislature of State may make laws for the whole or any part of the State. No law made by Parliament shall be deemed to be invalid on the ground that it would have been extra-territorial operation. The State Legislature can make law only for the State concerned and, therefore, the law made by the state Legislature having operation outside the State would be beyond its competence and, therefore ultra vires and void. Module – 1 98 The doctrine of ultra vires has been proved very effective in controlling the delegation of legislative function by the legislature and for making it more effective it is required to be applied more rigorously. Sometimes the Court’s attitude is found to be very liberal. Supreme Court has held that the legislature delegating the legislative power must lay down the legislative policy and guideline regarding the exercise of essential legislative function, which consists of the determination of legislative policy and its formulation as a rule of conduct. Delegation without laying down the legislative policy or standard for the guidance of the delegate will amount to abdication of essential legislative function by the Legislature. The delegation of essential legislative function falls in the category of excessive delegation and such delegation is not permissible. The power of judicial review controls not only the legislative but also the executive or administrative act. The Court scrutinizes the executive act for determining the issue as to whether it is within the scope of the authority or power conferred on the authority exercising the power. For this purpose the ultra vires rules provides much assistance in the Court. Where the act of the executive or administration is found ultra virus the Constitution or the relevant Act, it is declared ultra virus and, therefore, void. The Courts attitude appears to be stiffer in respect of the discretionary power of the executive or administrative authorities. The Court is not against the vesting of the discretionary power in the executive, but it expects that there would be proper guidelines or normal for the exercise of the power. The Court interferes when the uncontrolled and unguided discretion is vested in the executive or administrative authorities or the repository of the power abuses its discretionary power. The judicial review is not an appeal from a decision but a review of the manner in which the decision has been made. The judicial review is concerned not with the decision but with the decision making process. The Supreme Court has expressed the view that in the exercise of the power of judicial review the Court should observe the self-restraint and confine itself the question of legality. Its concern should be: 1. Whether a decision making authority exceeding its power? 2. Committed an error of law. 3. Committed a breach of the rules of natural justice. 4. Reached a decision which no reasonable tribunal would have reached, or 5. Abused its power. It is not for the Court to determine whether a particular policy or a particular decision taken in the furtherance of the policy is fair. The Court is only concerned with the manner in which those decisions have been taken. The Module – 1 99 extents of the duty to act fairly vary from case to case. The aforesaid grounds may be classified as under: (i) Illegality (ii) Irrationality (iii) Procedural impropriety. Mala fide exercise of power is taken as abuse of power : Mala fides may be taken to mean dishonest intension or corrupt motive. In relation to the exercise of statutory power it may be said to comprise dishonesty (or fraud) and malice. A power is exercised fraudulently. If its repository intends to achieve an object other than that for which he believes the power to have been conferred. The intention may be to promote another public interest or private interest. The burden to prove mala fide is on the person who wants the order to be quashed on the ground of mala fide. The judicial review is the supervisory jurisdiction . It is concerned not with the merit of a decision but with the manner in which the decision was made. The court will see that the decision making body acts fairly. It will ensure that the body acts in accordance with the law. Whenever its act is found unreasonable and arbitrary it is declared ultra vires and, therefore, void. In exercising the discretionary power the principles laid down in article 14 of the Constitution have to be kept in view. The power must be only be tested by the application of Waynesburg’s principle of reasonableness but must be free from arbitrariness not affected by bias or actuated by mala fides. The administrative action is subject to judicial review on the ground of procedural impropriety also. If the procedural requirement laid down in the statute is mandatory and it is not complied, the exercise of power will be bad. Whether the procedural requirement is mandatory or the Court decides directory. Principles of natural justice also need to be observed. If the order passed by the authority in the exercise of its power affected any person adversely. It is required to observe the principles of natural justice. In case of violation of the principles of natural justice, the order will be held to be void. The principles of natural justice are treated as part of the constitutional guarantee contained by Article 14 and their violation is taken as the violation of Article 14. Key points on judicial review • = The jurisdiction of the Supreme Court under Articles 32 and 136 and of High Court under Articles 226 and 227 have been proved of tremendous importance in the preservation and enforcement of the rule of law in India. Any statute cannot exclude the jurisdiction under these Articles. Module – 1 100 • = In several cases, the Supreme Court has observed that the jurisdiction under Articles 32, 136, 226 and 227 cannot be excluded even where the action of the administration is made final by the Constitutional amendment. • = Judicial review is an unavoidable necessity wherever there is a constant danger of legislative or executive lapses and appealing erosion of ethical standards in the society. • = The judicial review is the basic feature of the Constitution, which has been entrusted to the Constitutional Courts, namely, the Supreme Court of India and High Courts under Article 32 and Articles 226 and 227 respectively. It is the Constitutional duty and responsibility of the Constitutional Courts as assigned under the Constitution, to maintain the balance of power between the Legislature, the Execution, and the judiciary. • = The judicial review is life-breath of constitutionalism. Judicial review passes upon constitutionality of legislative Acts or administrative actions. The Court either would enforce valid Acts/actions or refuse to enforce them when found unconstitutional. • = Judicial review does not concern itself with the merits of the Act or action but of the manner in which it has been done and its effect on constitutionalism. It, thereby, creates harmony between fundamental laws namely, the Constitution and the executive action or legislative Act. The Supreme Court of India has played significant role in the Constitutional development. The Scope of judicial review in India is sufficient to make the Supreme Court a powerful agency to control the activities of both the legislature and the executive. In Indira Nehru Gandhi v. Raj Narain, the Supreme Court ( A.I.R. 1975 S.C. 2299) has held that even where the Constitution itself provides that the action of the administrative authority shall be final. The judicial review provided under Articles 32, 136, 226 and 227 is not barred. Judicial review is the part of the basic structure of the Constitution. Exclusion of Judicial Review (Ouster clause or finality clause) Finality clause may be taken to mean a section in the statute, which bars the jurisdiction of the ordinary Courts. The modern legislative tendency is to insert such clause to preclude the Courts from reviewing the law. On account of such tendency the danger of infringing the rights of the individuals is increasing. The rule of law requires that the aggrieved person should have right to approach the court for relief and, therefore, Courts do not appear to have accepted the Court or ouster clause in its face value and have evolved Module – 1 101 several rules to waive such clauses for providing justice to the aggrieved person. Extent of Judicial Exclusion. The jurisdiction of the Courts is excluded in several ways. Exclusive may be express or implied. For example S.2 of the Foreigners act, 1946 may be mentioned as an example of express exclusion. It provides that the action taken under the act shall not be called in question in any legal proceeding before any Court of law. In India the position on the finality clause is not well settled. It is extremely complex issue. For this purpose the judicial review may be divided into two categories- Constitutional modes of judicial review and Non-Constitutional modes of judicial review. The judicial review available under article 32, 136 226 and 227 is taken as Constitutional mode of judicial review, 1.e. the judicial review available under Articles 32, 136, 226, 227 cannot be excluded by the finality clause contained in the statute and expressed in any languages. Any statute or ordinary laws cannot take the jurisdiction of the Court under article 32, 136, 226 and 227 as the Constitution of India provides them. Thus, any ordinary law cannot bar the jurisdiction of the Supreme Court under Article 32 and 136 and of the High Court under Articles 226 and 227. In Keshava Nanda Bharti v. State of Kerala, ) the Supreme ( A.I.R. 1973 S.C. 1461 Court has held the Parliament has power to amend the Constitution but it cannot destroy or abrogate the basic structure or framework of the Constitution. Article 368 does not enable Parliament of abrogate or take away Fundamental right or to completely alter the fundamental features of the Constitution so as to destroy its identity. Judicial review therefore it cannot be taken away. In Indra Nehru Gandhi v. Raj Narain, the validity of Clause (4) of Article 329 – A inserted by the Constitution (39 the Amendment ) Act, 1975 was challenged on the ground that it destroyed the basic structure of the Constitution. The said Clause (4) provided that notwithstanding any Court order declaring the election of the Prime Minister or the Speaker of Parliament to be void, it would continue to be void in all respects and any such order and any finding on which such order was based would be deemed always to have been void and of no effect. This clause empowered Parliament to establish by law some Module – 1 102 authority or body for deciding the dispute relating to the election of the Prime Minister or Speaker. It provides that the decision of such authority or body could not be challenged before the Court. This clause was declared unconstitutional and void as being violation of free and fair election, democracy and rule of law, which are parts of the basic structure of the Constitution. In case judicial review, democracy, free and fair election and rule of law were included in the list of the basic features of the Constitution. Consequently any Constitutional amendment, which takes away, any of them will be unconstitutional and therefore void. The non-constitutional mode of judicial review is conferred on the civil Courts by statute and therefore it may be barred or excluded by the statute. S. 9 of the Civil Procedure Code, 1908 confers a general jurisdiction to Civil Courts to entertain suits except where its jurisdiction is expressly or impliedly excluded. Implied exclusion of the jurisdiction of the Civil Courts is usually given effect where the statute containing the exclusion clause is a self contained Code and provides remedy for the aggrieved person or for the settlement of the disputes. When not excluded. However, it is to be noted that the exclusion clause or ouster clause or finality clause does not exclude the jurisdiction of the Court in the condition Stated below: 1. Unconstitutionality of the statute : Exclusion clause does not bar the jurisdiction of the Court to try a suit questioning the constitutionality of an action taken there under. If the statute, which contains the exclusion clause, is itself unconstitutional, the bar will not operate. The finality should not be taken to mean that unconstitutional or void laws be enforced without remedy. 2. Ultra vires Administrative action : The exclusion clause does not bar the jurisdiction of the Court in case where the action of the authority is ultra vires. If action is ultra vires the powers of the administrative authority; the exclusion clause does not bar the jurisdiction of the Courts. The rule is applied not only in the case of substantive ultra vires but also in the case of procedural ultra vires. If the authority acts beyond its power or jurisdiction or violates the mandatory procedure prescribed by the statute, the exclusion or finality clause will not be taken as final and such a clause does not bar the jurisdiction of the Court. 3. Jurisdictional error : The exclusion or ouster or finality clause does not bar the jurisdiction of the Court in case the administrative action is challenged on the ground of the jurisdictional error or lack of jurisdiction. The lack of jurisdiction or jurisdictional error may arise where the authority assumes jurisdiction, which never belongs to it or has exceeded its jurisdiction indicating the matter or has misused or abused its jurisdiction. The lack of Module – 1 103 jurisdiction also arises where the authority exercising the jurisdiction is not properly constituted. 4. Non compliance with the provisions of the statute : the exclusion clause will not bar the jurisdiction of the Court if the statutory provisions are not complied with. Thus if the provisions of the statute are not complied with, the Court will have jurisdiction inspite of the exclusion or finality clause. 5. Violation of the Principles of natural Justice : If the order passed by the authority is challenged on the ground of violation of the principles of natural justice; the ouster clause or exclusion clause in the statute cannot prevent the Court from reviewing the order 6. When finality clause relates to the question of fact and not of law : Where the finality clause makes the finding of a Tribunal final on question of facts, the decision of the Tribunal may be reviewed by the Court on the question of law. (A) CONSTITUTIONAL REMEDIES T he judicial control of administrative action provides a fundamental safeguard against the abuse of power. Since our Constitution was built upon the deep foundations of rule of law, the framers of the Constitution made sincere efforts to incorporate certain Articles in the Constitution to enable the courts to exercise effective control over administrative action. Let us discuss those articles of the constitution: - (a) Under article 32, the Supreme Court has been empowered to enforce fundamental rights guaranteed under Chapter III of the Constitution. Article 32 of the Constitution provides remedies by way of writs in this country. The Supreme Court has, under Article 32(2) power to issue appropriate directions, or orders or writs, including writs in the nature of habeas corpus, certiorari, mandamus, prohibition and quo- warranto The court can issue not only a writ but can also make any order or give any direction, which it may consider appropriate in the circumstances. It cannot turn down the petition simply on the ground that the proper writ or direction has not been prayed for. (b) Under article 226 concurrent powers have been conferred on the respective High Courts for the enforcement of fundamental rights or any other legal rights. It empowers every High Court to issue to any person or authority including any Government, in relation to which it exercises jurisdictions, directions, orders or writs including writs of habeas corpus,. mandamus, prohibition, quo warranto and certiorari. Module – 1 104 In a writ petition, High Court cannot go into the merits of the controversy. For example, in matters of retaining or pulling down a building the decision is not to be taken by the court as to whether or not it requires to be pulled down and a new building erected in its place. (c) Under Article 136 the Supreme Court has been further empowered, in its discretion, to grant special leave to appeal from any judgment, decree, determination, sentence or order by any Court or tribunal in India. Article 136 conferred extraordinary powers on the Supreme Court to review all such administrative decisions, which are taken by the administrative authority in quasi-judicial capacity. The right to move the Supreme Court in itself is a guaranteed right, and Gajendragadkar, J., has assessed the significance of this in the following manner: “The fundamental right to move this Court can therefore be appropriately described as the cornerstone of the democratic edifice raised by the Constitution. That is why it is natural that this Court should in the words of Patanjali Sastri, J., regard itself as the protector and guarantor of fundamental rights and should declare that it cannot consistently with the responsibility laid upon it, refuse to entertain applications seeking protection against infringement of such rights. Since Article 32 is itself fundamental right, it cannot be whittled down by a legislation. It can be invoked even where an administrative action has been declared as final by the statute. An order made by a quasi-judicial authority having jurisdiction under an Act which is intra virus is not liable to be questioned on the sole ground that the provisions of the Act on the terms of the notification issued there under have been misinterpreted. The rule of maintainability of petition under Article 32 held above is subject to three exceptions. First, if the statute for a provision thereof ultra vires any action taken there under by a quasi-judicial authority which infringes or threatens to infringe a fundamental right, will give rise to the question of enforcement of that right and petition under Article 32 will lie. Second, if a quasi-judicial authority acts without jurisdiction or wrongly assumes jurisdiction by committing error as to a right, the question of enforcement of that arises and a petition under Article 32 will lie even if the statute is intra vires . Third, if the action taken by a quasi-judicial authority is procedurally ultra virus , a petition under Article 32 would be competent. Module – 1 105 Under Article 32 of the Constitution the following person may complain of the infraction of any fundamental rights guaranteed by the Constitution: Any person including corporate bodies who complains of the infraction of any of the fundamental rights guaranteed by the Constitution is at liberty to move the Supreme Court except where the languages of the provision or the nature of the right implies the inference that they are applicable only to natural person. The right that could be enforced under article 32 must ordinarily be the rights of the petitioner himself who complains of the infraction of such rights and approaches the Court for relief. An exception is as held in the Calcutta Gas Case, that in case of habeas corpus not only the man who is ( AIR 1962 SC 1044) or detained in confinement but any person provided he is not an absolute stranger, can institute proceeding to obtain a writ of habeas corpus for the purpose of liberation. The Constitution of India assigns to the Supreme Court and the High Courts the role of the custodian and guarantor of fundamental rights. Therefore, where a fundamental right is involved, the courts consider it to be their duty to provide relief and remedy to the aggrieved person. In matters other than the fundamental rights, generally the jurisdiction of the courts to grant relief is considered to be discretionary. The discretion is, however, governed by the broad and fundamental principles, which apply to the writs in England. A petition under Art 32 may be rejected on the ground of inordinate delay However, a writ petition made after 12 years by a person belonging to lower echelons of service against the Department which and not counted his service in the officiating capacity, was entertained because the Department had not given reply to his representations. It was held in one of the decided case ( A.I.R 1964 S.C. 1013; Supreme Court Employees ) that a petition under Art 32 would Welfare Association verses union of India A.I.R 1990 334 be barred by res judicata if a petition on the same cause of action filed before the High Court was earlier rejected. The Court went further and said that the principle of res judicata did not apply to successive writ petitions in the Supreme Court and the High Court under Arts 32 and 226 respectively. The Court observed that a petition based on fresh or additional grounds would not be barred by res judicata. A petition under Artic 32, however, will not lie against the final order of the Supreme Court under art 32 of the constitution. It was held that a petition would not lie under Art 32 challenging the correctness of an order of the Supreme Court passed on a special leave petition under Art 136 of the Constitution setting aside the award the award of enhanced solarium and interest under the land acquisition Act, 1894. Existence of alternative remedies Module – 1 106 When statutory remedies are available for determining the disputed questions of fact or law, such questions cannot be raised through a petition under Art 32. The Supreme Court would not undertake a fact-finding enquiry in the proceedings under Art 32. If the facts are disputed, they must be sorted out at the appropriate forum. In Ujjam Bai v. State of UP the ( AIR 1962 SC 1621) Supreme Court held that a petition under Art 32 could not impugned error of law or fact committed in the exercise of the jurisdiction conferred on an authority by law. The Court here made a distinction between acts, which were ultra vires, or in violation of the principles of natural justice and those, which were erroneous though within jurisdiction. While the former could be impugned, the latter could not be impugned in a writ petition under art 32. This dictum was, however, narrowed down by subsequent decisions. It was held that where an error of law or fact committed by a tribunal resulted in violation of a fundamental right; a petition under Art 32 would be maintainable. The fact that the right to move the Supreme Court for the enforcement of fundamental rights under Art 32 is a fundamental right should not bind us to the reality that such a right in order to be meaningful must be used economically for the protection of the fundamental rights. However, in recent years, with the expansion of the scope of art 21 of the Constitution and the growth of public interest litigation, the threshold enquiry regarding the violation of fundamental rights has become rare. Article 32 has almost become a site for public interest litigation where fundamental rights of the people are agitated. It is under this jurisdiction that the human rights jurisprudence and environmental jurisprudence have developed. The Court has given such expansive interpretation of art 21 of the Constitution that the question, which seemed to be alien to Art 32, became integral part of it. The right to life and personal liberty came to comprehend such diverse aspects of human freedom such as the right to environment, or the right to gender justice or the right to good governance that questions such as whether the ordinance making power was exercised to defraud the Constitution or whether judges were appointed in such a way as to enhance the indepenence of the judiciary or who and how should a social service organization undertake the giving of Indian children in adoption to foreigners became matters involving fundamental rights. Since the rights to live guaranteed by Art 21 included the right to live with dignity the right to unpolluted environmental jurisprudence has emerged. With the growth of the public interest litigation, which we will discuss separately, Art 32 has become an important site for the vindication of various group human rights. The Court has even incorporated some of the directive principles of state policy within the compass of the fundamental rights. For example, it declared that the right to primary education was a fundamental right. The Supreme Court entertained a writ petition under Art 32 seeking the implementation of the Consumer Protection Act and appointment of district forums as required there under. The Court Module – 1 107 also entertained a petition which said that due to large backlogs, the under- trail prisoner remained for an inordinately long periods in jail. Principles Regarding Writ Jurisdiction Under Article 226 Article 226 empowers the High Courts to issue writs in the nature of habeas corpus, mandamus, prohibition, certiorari and quo warranto or any of them for the enforcement of any of the fundamental rights or for any other purpose. It has been held that the words ‘for any other purpose’ mean for the enforcement of any statutory or common law rights. The jurisdiction of the High Courts under Art 226 is wider than that of the Supreme Court under Art 32. The jurisdictions under Art 32 and 226 are concurrent and independent of each other so far as the fundamental rights are concerned. A person has a choice of remedies. He may move either the Supreme Court under Art 32 or an appropriate High Court under Art 226. If his grievance is that a right other than a fundamental right is violated, he will have to move the High Court having jurisdiction. He may appeal to the Supreme Court against the decision of the High Court. After being unsuccessful in the High Court, he cannot approach the Supreme Court under Art 32 for the same cause of action because as said earlier, such a petition would be barred by resjudicata. Similarly, having failed in the Supreme Court in a petition filed under Art 32, he cannot take another chance by filing a petition under Art 226 in the High Court having jurisdiction over his matter because such a petition would also be barred by res judicata. The High Court’s jurisdiction in respect of ‘ other purposes’ is however, discretionary. The courts have laid down rules in accordance with which such discretion is to be exercised. The jurisdiction of the High Court under Art 226 cannot be invoked if: • = The petition is barred by res jusicata; • = If there is an alternative and equally efficacious remedy available and which has not been exhausted; • = If the petition raised questions of facts which are disputed; and • = If the petition has been made after an inordinate delay. These rules of judicial restraint have been adopted by our courts from the similar rules developed by the English courts in the exercise of their jurisdiction to issue the prerogative writs. Where a civil court had dealt with a matter and the High Court had disposed of an appeal against the decision of the civil court, a writ petition on the same matter could not be entertained. This was not on the ground of res judicata as much as on the ground of judicial discipline, which required that in matters relating to exercise of discretion, a party could not be allowed to take chance in different forums. Withdrawal or abandonment of a petition under Art Module – 1 108 226/227 without the permission of the court to file a fresh petition there under would bar such a fresh petition in the High Court involving the same subject matter, though other remedies such as suit or writ petition under Art 32 would be open. The principle underlying Rule 1 of Order 23 of the CPC was held to be applicable on the ground of public policy. It is a general rule of the exercise of judicial discretion under Art 226 that the High Court will not entertain a petition if there is an alternative remedy available. The alternative remedy however, must be equally efficacious. Where an alternative and efficacious remedy is provided, the Court should not entertain a writ petition under Art 226. Where a revision petition was pending in the High Court challenging the eviction degree passed against a tenant by the court of the Small Causes, it was held that the High Court should not have entertained a writ petition filed by the cousins of the tenants. The petitioners should have exhausted the remedies provided under the Code of Civil procedure before filing the writ petition. Petitions were dismissed on the ground of the existence of an alternative remedy in respect of elections to municipal bodies or the Bar Council. When a law prescribes a period of limitation for an action, such an action has to be brought within the prescribed period. A court or a tribunal has no jurisdiction to entertain an action or proceeding after the expiration of the limitation period. It is necessary to assure finality to administrative as well as judicial decisions. Therefore, those who sleep over their rights have no right to agitate for them after the lapse of a reasonable time. Even writ petitions under Art 226 are not immune from disqualification on the ground of delay. Although the law of limitation does not directly apply to writ petitions, the courts have held that a petition would be barred if it comes to the court after the lapse of a reasonable time. This is however, not a rule of law but is a rule of practice. Where the petitioner shows that illegality is manifest in the impugned action, and explains the causes of delay, the delay may be condoned. Scope of the High court’s Jurisdiction under Article 226 The jurisdiction of the High Court under Art 226 is very vast and almost without any substantive limits barring those such as territorial limitations. Although the jurisdiction of the High Court is so vast and limitless, the courts have imposed certain limits in their jurisdiction in order to be able to cope with the volume of litigation and also to avoid dealing with questions, which are not capable of being answered judicially. There are three types of limitations: • = Those arising from judicial policy; • = Those which are procedural and • = Those because of the petitioner’s conduct. Module – 1 109 The Supreme Court has held that the extra ordinary jurisdiction should be exercised only in exceptional circumstances. It was held that the High Court was not justified in going into question of contractual obligations in a writ petition. It was held that the jurisdiction under Art 226 should be used most sparingly for quashing criminal proceedings. The High Court should interfere only in extreme cases where charges ex facie do not constitute offence under the Terrorist and Destructive Activities Act (TADA) It should not quash the proceedings where the application of the Act is a debatable issue. Power to Review Its Own Judgments It was held that the High Court had power to review its own judgments given under Art 226. This power, however, must be exercised sparingly and in cases, which fell within the guidelines provided by the Supreme Court. However, review by the High Court of its own order in a writ petition on the ground that two documents which were part of the record were not considered by it at the time of the issuance of the writ under Art 226, especially when the documents were not even relied upon by the parties in the affidavits filed before the High Court was held to be impermissible. On the death of the petitioner during the pendency of his writ petition against removal from service, the petition abates. The successor cannot continue the petition. If the petitioner were guilty of mala fide and calculated suppression of material facts, which if disclosed, would have disentitled him to the extra ordinary remedy under Art 226 or in any case materially affected the merits of the case, he would be disentitled to any relief. Where the writ petitioners had themselves invoked the review jurisdiction of the competent officer under the Evacuee Interest (Separation) Act, 1950, to their advantage and to the disadvantage of the appellant, it was held that the petitioner could not be heard to say that the review orders of the authority were void for want of jurisdiction. (Rights of the Armed Forces) The Constitution provides two exceptions to the availability of the constitutional remedies given in Art 32, 226 227 and 136. Art 33 of the Constitution says that Parliament may by law determine to what extent any of the rights conferred by Part III shall, in their application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them. Suspension of Judicial Review during Emergency Module – 1 110 The right to move the court for the enforcement of the fundamental rights be suspended during the emergency. This is the second exception to the availability of constitutional remedies. Under Art 359 of the Constitution the President may declare that the right to move any court for the enforcement of such of the fundamental rights as may be mentioned in the order and all proceedings pending in any court for the enforcement of those rights shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the Order. By the Constitution (Forty- fourth) Amendment Act, 1978, the words ‘except Arts 20 and 21’ were added to the above Article. It means that the right to move any court for the enforcement of any of the fundamental rights except the rights guaranteed by Art 20 and the President may suspend 21 during the proclamation of emergency. The jurisdiction under Art 227 is narrower than that under Art 226 because while under art 226, the High Court can quash any administrative action, under Art 227, it can act only in respect of judicial or at the most quasi- judicial actions. By giving wider meaning to the word ‘tribunal’ in this Article as well as in Art 136, the courts have included various administrative authorities within the power of superintendence. Clause (4) of art 227, however, excludes the tribunals constituted by or under any law relating to the armed forces from the supervisory jurisdictions of the High Courts. The court martial proceedings under the Military law are not within the power of superintendence of the High Court, though they are subject to judicial review under Art 226. A petition under Art 227 is not maintainable if there is an adequate alternative remedy. In this matter the same principles will apply as are applicable to petitions filed under the Consumers protection act dismissing a petition for non-appearance would not lie under Art 227 to the High Court since the statutory remedy of appealing under sec. 15 or applying for revision under sec. 17 to the State Commission under that Act was available. Remedy through Special Leave to appeal under article 136. Articles 132 to 135 of the Constitution deal with ordinary appeals to the Supreme Court in constitutional, civil and criminal matters. Article 136 deals with a very special appellate jurisdiction conferred on the Supreme Court. Under this provision the Supreme Court has power to grant in the discretion, special leave to appeal from (a) Any judgment, decree, determination or order; (b) In any cause or matter; (c) An order passed or made by any court or tribunal in the territory of India. Module – 1 111 The scope of the Article is very extensive and it invests the Court with a plenary jurisdiction to hear appeals. Since the Court has been empowered to hear appeals from the determination or orders passed by the tribunal including all such administrative tribunals and bodies which are not Courts in the strict sense, this has become most interesting aspect of this provision from the point of administrative law. Under the provision, the Court may hear appeals from any tribunal even where the legislature declares the decision of a tribunal final. A large number of ad judicatory bodies outside the regular judicial hierarchy have sprung up in modern times and it was deemed highly desirable that the Supreme Court should be able to keep some control over such bodies through the technique of hearing appeal there from. Prof. Jain and Jain have rightly observed it in this connection: “ It is extremely desirable that there should be some forum correct misuse of power by such bodies. To leave these bodies outside the place of any judicial control would be to create innumerable tiny despots, which could negative the rule of law. The ambit of Supreme Court’s jurisdiction under Article 136 is in some respects broader than that under Article 32. Article is confined to the enforcement of fundamental rights only whereas Article 136 is not so. The appellate jurisdiction of the court gives more scope to the Court to intervene with ad judicatory bodies and provides grounds of judicial control. But from another point of view the jurisdiction of the Court under Article 136 is narrower than that under Article 32. Article 136 is available only in cases of tribunals while Article 32 can be invoked when any authority whatsoever infringes a fundamental right. It has been found that the Court has been extremely reluctant to intervene with quasi- judicial bodies. As regard the points of difference between the writ jurisdiction of the High Courts under Article 226 any appellate jurisdiction of the Supreme Court under Article 136, it can be said that a high court can issue a writ to any authority whether quasi-jurisdiction or administrative; whereas the supreme Court under Article 136 can hear appeal only from a court or tribunal. In this respect writ jurisdiction of a High Court is broader than the appellate scope of the Supreme Court under Article 136. But from another point of view the scope of Article 226 is narrower than Article 136. The Supreme Court can interfere with a decision of a tribunal on wider form than the High Court in its writ jurisdiction, are not so flexible it does not enter into questions of facts while there is no restriction on the powers of the Supreme Court.” General principles relating to the grant of special leave to appeal. The following principles have been evolved on the basis of cases decided by the Court, in connection with the grant of special leave to appeal: (1) The Court has imposed certain limitations upon its own powers under Article 136, e.g., it has laid down that the power is to be exercised sparingly Module – 1 112 and in exceptional cases only. The power shall be exercised only where special circumstances are shown to exist. (2) Ordinarily, the Supreme Court would refuse to entertain appeal under Article 136 from the order of an inferior tribunal where the litigant has not availed himself of the ordinary remedies available to him by law, e.g., a statutory right of appeal or revision or where he has not appealed from the final order of an Appellate Tribunal from the decision of the inferior tribunal. This may be allowed only in exceptional cases e.g., breach of the principles of natural justice by the order appeal to the Supreme Court is on a point, which could not have been decided in the appeal under ordinary law. (3) The reserve power of the court cannot under Article 136 be exhaustively defined but it is true that the Court has acted arbitrarily or has not given a fair deal to the litigant, will not be handicapped in the exercise of its findings of facts or otherwise. (4) It is quite plain that the Supreme Court reaches the conclusion that the tribunal or the Court has acted arbitrarily or has not given a fair deal to the litigant, will not be handicapped in the exercise of its findings of facts or otherwise. (5) The Supreme Court would not permit a question to be raised before it for the first time, if the same has not been raised before the tribunal. But where the question raised for the first time involves a question of law and it arose on admitted facts, then the court may allow the same to be argued before it. The court again said that the point was neither raised in the written statement filed by the appellant in the trail Court nor in the grounds of appeal filed by him in the appellate court cannot be canvassed before the Supreme Court for the first time on appeal by special leave. (6) In an appeal under this provision, the Supreme Court will not interfere with the award of a Tribunal unless some erroneous principle has been invoked or some important piece of evidence has been overlooked or misapplied. Remedy against the administrative tribunal under Article 227 : According to Article 227 (1) as it existed before the 42 nd amendment of the Constitution every High Court had the power of superintendence over all Courts and tribunals within its territorial jurisdiction except those which are constituted under a law relating to armed forces. Here the word tribunal was read in the same connotation as it has been used in Article 136. The power of superintendence included the power to call returns from such courts, to make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts and prescribe forms in which books, entries, and accounts were to be kept by the officers of such Courts. Now under Forty- forth Amendment act of the Constitution the jurisdiction of the High Court over Module – 1 113 administrative tribunals has been restored and accordingly the power of superintendence and supervision of the High Courts over them exists as before. The high Courts were thus empowered to exercise broad powers of superintendence over Courts and tribunals. The power extended not only to administrative but also even to judicial superintendence over judicial or quasi- judicial bodies. The power of the High Court under Article 226 differed from power of superintendence exercised by it under Article 227 Firstly, where it could quash orders of inferior court or tribunal, but the court under Article 226 may quash the order as well as issue further directions in the matter. Secondly, Under Article 227 the power of interference was limited to seeing that the tribunal function with in the limits of its authority . Thirdly, the power under Article 227 will only be exercised where the party affected moves the court, while the superintending power under Article 227 could be exercised at the instance of High Court itself. In exercising the supervisory power under Article 227, the High Court does not act as an appellate tribunal. It did not use to review to reweigh the evidence upon which the determination of the inferior tribunal purported to be based. B) Statutory Review. The method of statutory review can be divided into two parts: i) Statutory appeals . There are some Acts, which provide for an appeal from statutory tribunal to the High Court on point of law. e.g. Section 30 Workmen’s Compensation act, 1923. ii) Reference to the High Court or statement of case. There are several statutes, which provide for a reference or statement of case by an administrative tribunal to the High Court. Under Section 256 of the Income-tax Act of 1961 where an application is made to the Tribunal by the assessee and the Tribunal refuses to state the case the assessee may apply to the High Court and if the High Court is not satisfied about the correctness of the decision of the Tribunal, it can required to Tribunal to state the case and refer it to the Court.) C. Ordinary Remedies or Equitable Remedies Apart from the extra-ordinary (Constitutional Remedies) guaranteed as discuss above there are certain ordinary remedies, which are available to Module – 1 114 person under specific statutes against the administration. The ordinary courts in exercise of the power provide the ordinary remedies under the ordinary law against the administrative authorities. These remedies are also called equitable remedies. This includes: i) Injunction ii) Declaratory Action iii) Action for damages.) In some cases where wrong has been done to a person by an administrative act, declaratory judgments and injunction may be appropriate remedies. An action for declaration lies where a jurisdiction has been wrongly exercised. Or where the authority itself was not properly constituted. Injunction s issued for restraining a person to act contrary to law or in excess of its statutory powers. An injunction can be issued to both administrative and quasi-judicial bodies. Injunction is highly useful remedy to prevent a statutory body from doing an ultra vires act, apart from the cases where it is available against private individuals e.g. to restrain the commission or torts, or breach of contract or breach of statutory duty. Before discussing these remedies let us find out what is the meaning of equity. Meaning of Equity Before we discuss equitable remedies, it is necessary for us to know something about equity. Since the administration of justice has begun on the basis of law in the world, a class of society has always been against the rigidity of law. This class of society is of the opinion that howsoever mature and legally skilled men may make the laws, yet they cannot experience the circumstances which the judges may have to face in future. The circumstances in which the provisions of law may prove to be unjust for the people if is necessary to make the provisions of law flexible, and injustice caused by such rigidity of law should be stopped. Equity is based on this consideration. Equity is a voice against injustice caused by rigidity of low. Equity, which is not a synonym of natural justice, demands that justice should be made in accordance with the circumstances. Equities a new and independent system of law which developed in England. It has its own history and origin. It made an important contribution in the English system of law as a supplementary of main legal system till 1873, when it was merged in the common law According to Ashburner. “Equity is a word which has been borrowed by law from morality and which was acquired in law a strictly technical meaning.” Equitable Remedies may be discussed under following headings: (1) Injunction Module – 1 115 An injunction is a preventive remedy. It is a judicial process by which one who has invaded or is threatening to invade the rights of another is restrained from continuing or commencing such wrongful Act. In India, the law with regard to injunctions has been laid down in the specific Relief Act, 1963. Injunction may be prohibitory or mandatory. Prohibitory Injunction . Prohibitory injunction forbids the defendant to do a wrongful act, which would infringe the right of the plaintiff. A prohibitory injunction may be interlocutory or temporary injunction or perpetual injunction. Interlocutory or temporary injunction . Temporary injunctions are such as to continue until a specified time or until the further order of the court. (S. 37 for the It is granted as an interim measure to preserve status quo specific Relief Act ). until the case is heard and decided. Temporary injunction may be granted at any stage of a suit. Temporary injunctions are regulated by the Civil Procedure Code .(Ibid) Temporary injunction is provisional in nature. It does not conclude or determine a right. Besides, a temporary injunction is a mere order. The granting of temporary injunction is a matter of discretion of the court. Perpetual injunction. A perpetual injunction is granted at the conclusion of the proceedings and is definitive of the rights of the parties, but it need not be expressed to have perpetual effect, it may be awarded for a fixed period or for a flexed period with leave to apply for an extension or for an indefinite period terminable when conditions imposed on the defendant have been complied with; or its operation may be suspended fro a period during which the defendant is given the opportunity to comply with the conditions imposed on him, the plaintiff being given leave to reply at the end of that time. Mandatory injunction. When to present the breach of an obligation, it is necessary to compel the performance of certain acts which the court in capable of enforcing, the court may in the discretion grant an injunction to prevent the breach complained of an also to compel performance of the requisite acts. The mandatory injunction may be (S. 39 of the Specific Relief Act.) taken as a command to do a particular act to restore things to their former condition or to undo, that which has been done. It prohibits the defendant from continuing with a wrongful act and also imposes duty on him to do a positive act. For example construction of the building of the dependant obstructs the light for which the plaintiff is legally entitled. The plaintiff may obtain injunction not only for restraining the defendant from the construction of the building but also to pull down so much of the part of the building, which obstructs the light of the plaintiff. Declaration (Declaratory Action) Module – 1 116 Declaration may be taken as a judicial order issued by the court declaring rights of the parties without giving any further relief. Thus a declaratory decree declares the rights of the parties. In such a decree there is no sanction, which an ordinary judgment prescribes same sanctions against the defendant. By declaring the rights of the parties it removes the existing doubts about the rights and secures enjoyment of the property. It is an equitable remedy. Its purpose is to avoid future litigation by removing the existing doubts with regard to the rights of the parties. It is a discretionary remedy and cannot be claimed as a matter of right. Action for Damages If any injury is caused to an individual by wrongful or negligent acts of the Government servant the aggrieved person can file suit for the recovery of damages from the Government concerned. This aspect of law has been discussed in detail under the topic liability of Government or state in torts. WRITS WRIT OF HABEAS CORPUS H abeas corpus is a prerogative writ, which was granted to a subject of His Majesty, who was detained illegally in jail. It is an order of release. The words habeas corpus subi di cendum literally mean ‘to have the body’ The writ provides remedy for a person wrongfully detained or restrained. By this a command is issued to a person or to jailor who detains another person in custody to the effect that the person imprisoned or the detenu should be produced before the Court and submit the day and cause of his imprisonment or detention. The detaining authority or person is required to justify the cause of detention. If there is no valid reason for detention, the Court will immediately order the release of the detained person. The personal liberty will have no meaning in a constitutional set up if the writ of habeas corpus is not provided therein. The writ is available to all the aggrieved persons alike. It is the most effective means to check the arbitrary arrest by any executive authority. It is available only in those cases where the restraint is put on the person of a man without any legal justification. When a person has been subjected to confinement by an order of the Court, which passed the order after going through the merits of the case the writ of habeas corpus cannot be invoked, however erroneous the order may be. Moreover, the writ is not of punitive or of corrective nature. It is not designed Module – 1 117 to punish the official guilty for illegal confinement of the detenu. Nor can it be used for devising a means to secure damages. An application for habeas corpus can be made by any person on behalf of the prisoner as well as by the prisoner himself, subject to the rules and conditions framed by various High Courts. Thus the writ can be issued for various purposes e. g. (a) testing the validity of detention under preventive detention laws; (b) securing the custody of a person alleged to be lunatic; (c) securing the custody of minor; (d) detention for a breach of privileges by house; (e) testing the validity of detention by the executive during emergency, etc. When the Writ does not lie . The writ will not lie in the following circumstances:- 1. If it appears on the face of the record that the detention of the person concerned is in execution of a sentence on indictment of a criminal charges. Even if in such cases it were open to investigate the jurisdiction of the court, which convicted the petitioner, but the mere jurisdiction would not justify interference by habeas corpus. 2. In habeas corpus proceedings the court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the date of institution of the proceedings. It was, thus, held in Gopalan v. State that if a fresh ,(AIR 1950 SC.27) and valid order justifying the detention is made by the time to the return to the writ, the court couldn’t release the detenu whatever might have been the defect of the order in pursuance of which he was arrested or initially detained. 3. There is no right to habeas corpus where a person is put into physical restraint under a law unless the law is unconstitutional or the order is ultra virus the statute. Module – 1 118 4. Under Article 226 a petition for habeas corpus would lay not only where he is detained by an order of the State Government but also when another private individual detains him. Grounds of Habeas Corpus: The following grounds may be stated for the grant of the writ: (1) The applicant must be in custody; (2) The application for the grant of the writ of habeas corpus ordinarily should be by the husband or wife or father or son of the detenu. Till a few years back the writ of habeas corpus could not be entertained if a stranger files it. But now the position has completely changed with the pronouncements of the Supreme Court in a number of cases. Even a postcard written by a detenu from jail or by some other person on his behalf inspired by social objectives could be taken as a writ-petition. (3) In Sunil Batra v. Delhi Administration ( ) II AIR 1980 SC.1579 the court initiated the proceedings on a letter by a co- convict, alleging inhuman torture to his fellow convict. Krishna Iyer, J., treated the letter as a petition for hebeas corpus. He dwelt upon American cases where the writ of habeas corpus has been issued for the neglect of state penal facilities like over-crowding, in sanitary facilities, brutalities, constant fear of violence, lack of adequate medical facilities, censorship of mails, inhuman isolation, segregation, inadequate rehabilitative or educational opportunities. (4) A person has no right to present successive applications for habeas corpus to different Judges of the same court. As regards the applicability of res judicata to the writ of habeas corpus the Supreme Court has engrafted an exception to the effect that where the petition had been Module – 1 119 rejected by the High Court, a fresh petition can be filed to Supreme Court under Article 32. (5) All the formalities to arrest and detention have not been complied with and the order of arrest has been made mala fide or for collateral purpose. When a Magistrate did not report the arrest to the Government of the Province as was required under Section 3(2) of the Punjab Safety Act, 1947, the detention was held illegal. (6) The order must be defective in substance, e.g., misdescription of detenu, failure to mention place of detention etc. Hence complete description of the detenu should be given in the order of detention. (7) It must be established that the detaining authority was not satisfied that the detenu was committing prejudicial acts, etc. It may be noted in this connection that the sufficiency of the material on which the satisfaction is based cannot be subject of scrutiny by the Court. Where the detaining authority did not apply his mind in passing the order of detention, the court will intervene and issue the order of release of the detenu. Vague and indefinite grounds of detention.__ where the detaining authority furnishes vague and indefinite grounds, it entitles the petitioner to release. Delay in furnishing ground may entitle detenu to be released. The Court has consistently shown great anxiety for personal liberty and refused to dismiss a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention. It has adopted the liberal attitude in view of the peculiar socio-economic conditions prevailing in the country. People in general are poor, illiterate and lack financial resources. It would therefore be not desirable to insist that the petitioner should set out clearly and specifically the ground on which he challenges the order of detention. The scope of writ of habeas corpus has considerably increased by virtue of the decision of the Supreme Court in Maneka Gandhi v. Union of India, and also by the adoption of forty-fourth amendment to the Constitution. Hence the Module – 1 120