writ of habeas corpus will be available to the people against any wrongfulWRIT OF MANDAMUS

writ of habeas corpus will be available to the people against any wrongful detention. WRIT OF MANDAMUS Nature and Scope__ A writ of mandamus is in the form of command directed to the inferior Court, tribunal, a board, corporation or any administrative authority, or a person requiring the performance of a specific duty fixed by law or associated with the office occupied by the person. Mandamus in England is “neither a writ of course nor a writ of right, but that it will be granted if the duty is in the nature of public duty and specially affects the right of an individual provided there is no other appropriate remedy. The writ is issued to compel an authority to do his duties or exercise his powers, in accordance with the mandate of law. The authority may also be prevented from doing an act, which he is not entitled to do. The authority, against which the writ is issued, may be governmental or semi-governmental, or judicial bodies. Its function in Indian Administrative Law is as general writ of justice, whenever justice is denied, or delayed and the aggrieved person has no other suitable the defects of justice. An order in the nature of mandamus is not made against a private individual. The rule is now well established that a writ of mandamus cannot be issued to a private individual, unless he acts under some public authority. A writ can be issued to enforce a public duty whether it is imposed on private individual or on a public body. The Court laid down that public law remedy mandamus can be availed of against a person when he is acting in a public capacity as a holder of public office and in the performance of a public duty. It is not necessary that the person or authority against whom mandamus can be claimed should be created by a statute. Mandamus can be issued against a natural person if he is exercising a public or a statutory power of doing a public or a statutory duty. Grounds of the Writ of Mandamus The writ of mandamus can be issued o the following grounds : (i) That the petitioner has a legal right. The existence of a right is the formation of the jurisdiction of a Court to issue a writ of mandamus. The present trend of judicial opinion appears to be that in the case of non-selection to a post, no writ of mandamus lies. (ii) That there has been an infringement of the legal right of the petitioner; Module – 1 121 (iii) That the infringement has been owing to non-performance of the corresponding duty by the public authority; (iv) That the petitioner has demanded the performance of the legal duty by the public authority and the authority has refused to act: (v) That there has been no effective alternative legal remedy. The applicant must show that the duty, which is sought to be enforced, is owed to him and the applicant must be able to establish an interest the invasion of which has been given rise to the action. The writ of mandamus is available against all kinds of administrative action, if it is affected with illegality. When the action is mandatory the authority has a legal duty to perform it. Where the action is discretionary, the discretion has to be exercised on certain principles; the authority exercising the discretion has mandatory duty to decide in each case whether it is proper to exercise its discretion. In the exercise of its mandatory powers as well as discretionary powers it should be guided by honest and legitimate considerations and the exercise its discretion should be for the fulfillment of those purposes, which are contemplated by the law. If the public authority ignores these basic facts in the exercise of mandatory or discretionary. Where the duty is not mandatory but it is only discretionary, the writ of mandamus will not be issued. The principles are illustrated in Vijaya Mehta v. State( There a petition was moved in the high Court for directing AIR 1980 Raj.207) the state Government to appoint a Commission to inquire into change in climate cycle, flood in the State etc. Refusing to issue the writ, the Court pointed out that under Section 3 of the Commission of Inquiry Act, the Government is obligated to appoint a commission if the Legislature passes a resolution to that effect. In other situation, the government’s power to appoint a commission is discretionary and optional as a commission could only be appointed by the State Government if, in its opinion it is necessary to do so. The petitioner, therefore has no legal right to compel the State Government to appoint a Commission of Inquiry even when there is a definite matter of public importance for the government may not feel inclined to appoint a Commission if it is of the opinion that is not necessary to do so. If the public authority neglects to discharge mandatory duty he would be compelled by mandamus to do it. The refusal to refer to the High Court questions under statutory provision like section 57 of the Stamp Act may be included in the class of mandatory duties in the light of the decision of the Supreme Court in Maharastra Sagar Mills case. Mandamus was issued to compel the government to fill the vacant seats in a Medical College as Article 41 of the Constitution, which is a directive principle of State policy, includes the right to medical education. Module – 1 122 In Bhopal sugar Industries Ltd. V. income Tax Officer, Bhopal ) , (AIR 1961 SC 182 it was held by the supreme Court that, where the Income Tax Officer had virtually refused to carry out the clear and unambiguous directions which a superior tribunal like the Income tax appellate Tribunal had given to him by its final order in exercise of its appellate power in respect of an order of assessment made by him, such refusal is in effect a denial of justice, and is furthermore destructive of one of the basic principles in the administration of justice based on as it is the hierarchy of Courts. In such a case a writ of mandamus should issue ex-debits justifiable to compel the Income-tax Officer to carry out the directions given to him by the Income-tax Appellate Tribunal. The High Court will be clearly in error if it refused to issue a writ on the ground that no manifest injustice has resulted from the order of the Income-tax Officer in view of the error committed by the tribunal itself in its order. Such a view is destructive of one of the basic principles of the administration of justice. Thus we find that the Court will not tolerate the omission of mandatory duties by the police authority and it would compel the authority by the writ of mandamus to do what it must. A writ of mandamus will not be issued unless an accusation of non- compliance with a legal duty or a public duty is leveled. It must be shown by concrete evidence that there was a distinct and specific demand for performance of any legal or public duty cast upon the said party declined to comply with the demand. When an original legislation by the Union or State exceeds its legislative orbit and injuries private interests, the owner of such interests can have a mandamus directing the States not to enforce the impugned law “against the petitioners in any manner whatsoever.” The duty of this writ becomes more onerous as it attempts to face different phases and types of ultra vires administrative action, whether with regard to internment or election, taxation or license fees, evacuee property or dismissal of public officers. Grounds on which writ of mandamus may be refused . The relief by way of the writ of mandamus is discretionary and not a matter of right. The Court on any of the following grounds may refuse it: 1. The Supreme Court has held in Daya v. Joint Chief Collector (AIR that where the act against which mandamus is sought has 1962 SC1796), been completed, the writ if issued, will be in fructuous. On the same principle, the Court would refuse a writ of mandamus where it would be meaningless, owing to lapse or otherwise. Who may apply for mandamus? __It is only a person whose rights have been infringed who may apply for mandamus. It is interesting to note that the rule of locus stand has been liberalized by the Supreme Court so much as to Module – 1 123 enable any public-spirited man to move the court for the issue of the writ on behalf of others. General principles relating to mandamus to enforce public duties In considering general principles the following points have to be considered: (a) That the duty is public. In this connection an important case, Ratlam Municipality v. Vardhi Chand ) came to be decided by the (AIR 1980 SC 1622 Supreme Court in 1980, in which it compelled a statutory body to exercise its duties to the community. Ratlam Municipality is a statutory body. A provision in law constituting the body casts a mandate on the body “ to undertake and make reasonable and adequate provision” for cleaning public streets and public places, abating all public nuisances and disposing of night soil and rubbish etc. The Ratlam Municipality neglected to discharge the statutory duties. (b) That it is a duty enforced by rules having the force of law. Thus (i) Where an administrative advisory body is set up (without the sanction of any statute) mandamus will not be issued against such body even through the functions of the body relate to public matters; (ii) Though executive or administrative directions issued by a superior authority are enforceable against an inferior authority by departmental action, they have no force of law and are, accordingly not enforceable by mandamus. (iii) An applicant for mandamus must take the position that the person against whom an order is sought is holding a public office under some law, and his grievance is that he is acting contrary to the provisions of that law. In short, mandamus will be issued when the Government or its officers either overstep the limits of the power conferred by the statute, or fails to comply with the conditions imposed by the statute for the exercise of the power. Against whom a Writ of Mandamus cannot be issued? Writ of mandamus is issued generally for the enforcement of a right of the petitioner. Where the applicant has no right the writ cannot be issued. It cannot lie to regulate or control the discretion of the public authorities. The writ of mandamus will not be issued if there is mere omission or irregularity committed by the authority. It will not lie for the interference in the internal administration of the authority. In the matters of official judgment, the High Court cannot interfere with the writ of mandamus. Module – 1 124 WRIT OF CERTIORARI Definition and Nature : Certiorari is a command or order to an inferior Court or tribunal to transmit the records of a cause or matter pending before them to the superior Court to be dealt with there and if the order of inferior Court is found to be without jurisdiction or against the principles of natural justice, it is quashed: “Certiorari is historically an extraordinary legal remedy and is corrective in nature. It is issued in the form of an order by a superior Court to an inferior civil tribunal which deals with the civil rights of persons and which is public authority to certify the records of any proceeding of the latter to review the same for defects of jurisdiction, fundamental irregularities of procedure and for errors of law apparent on the proceedings.” The jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the Court is not entitled to act as a Court of appeal. That necessarily means that the findings of fact arrived at by the inferior Court or tribunal are binding. An error of law apparent on the face of the record could be corrected by a writ of certiorari, but not an error of fact; however grave it may appear to be. Certiorari is thus said to be corrective remedy. This is, of course, its distinctive feature. The very end of this writ is to correct the error apparent on the face of proceedings and to correct the jurisdictional excesses. It also corrects the procedural omissions made by inferior courts or tribunal. If any inferior court or tribunal has passed an order in violation of rules of natural justice, or in want of jurisdiction, or there is an error apparent on the face of proceeding, the proper remedy so through the writ of certiorari. Certiorari is a proceeding in personam : Unlike the writ of habeas corpus the petition for certiorari should be by the person aggrieved, not by any other person. The effect of the rule of personam is that if the person against whom the writ of certiorari is issued does not obey it, he would be committed forthwith for contempt of court. Certiorari is an original proceeding in the superior Court. It has its origin in the court of issue and therefore the petition in India is to be filed in the High Court under Article 226 or before the Supreme Court under Article 32 of the Constitution. Against whom it can be issued : As regards the question against whom the writ can be issued, it is well settled that the writ is available against nay judicial or Module – 1 125 quasi-judicial authority, acting in a judicial manner. It is also available to any other authority, which performs judicial function and acts in a judicial manner. Any other authority may be Government itself. But the conditions allied with it are that Government acts in a judicial manner and the issue is regarding the determination of rights or title of a person. Previously the question was in doubt whether it was available against Central and Local Governments. The majority of judgment is there, when the grant of certiorari against the Government has been denied. The Madras High Court in 1929 and again in 1940 in Chettiar v. Secretary to the Government of Madras (ILR1940 Mad.205.) held that a writ of certiorari would not lie against Madras Government. The Assam High Court has held that the writ of certiorari will be issued to an authority or body of persons who are under a duty to act judicially. It will not be available against the administrative order or against orders of non-statutory bodies. Necessary conditions for the issue of the Writ : When any body persons (a) Having legal authority. (b) To determine questions affecting rights of subjects, (c) Having duty to act judicially, (d) Acts in excess of their legal authority, writ of certiorari may be issued. Unless all these conditions are satisfied, mere inconvenience or absence of other remedy does not create a right to certiorari. Grounds of Writ of Certiorari : The writ of certiorari can be issued on the following grounds: (1) Want of jurisdiction, which includes the following: (a) Excess of jurisdiction. (b) Abuse of jurisdiction. (c) Absence of jurisdiction. (2) Violation of Natural justice. (3) Fraud. (4) Error on the face of records. (1) Want of jurisdiction : The Supreme Court has stated in Ebrahim Abu Bakar v. Custodian- General of Evacuee Property( that want of 111952 SCJ 488), jurisdiction may arise from. (1) The nature of subject matter. (2) From the abuse of some essential preliminary, or Module – 1 126 (3) Upon the existence of some facts collateral to the actual matter, which the Court has to try, and which is the conditions precedent to the assumption of jurisdiction by it. It may be added that jurisdiction also depends on (4) The character and constitution of the tribunal There have been a good number of cases in Indian Administrative Law where the use of jurisdiction has been corrected through the writ of certiorari. Thus the orders of tribunals which did not wait even for 15 minutes to hear a party and which resorted to its own theories to assess the premises of people and acted under the influence of political considerations, have been quashed. The Court does not interfere in the cases where there is a pure exercise of discretion, and which is not arbitrary if it is done in good faith. They do not ignore the legislative intention in the statute which might give a wide aptitude of powers to the administrative authority or the social needs, which demand the bestowal of some wider jurisdiction, or the historical circumstances under which a certain tribunal got exclusive jurisdiction of a particular subject-matter. (2) Violation of Natural Justice The next ground for the issue of writ of certiorari is the violation of natural justice and has a recognized place in Indian legal system as discussed in the earlier part of the reading material. (3) Fraud there are no cases in India where certiorari has been asked on account of fraud. The cases are found in British Administrative law where on the ground of fraud the Court has granted the writ of certiorari. The superior Courts have an inherent jurisdiction to set aside orders of convictions made by inferior tribunals if they have been procured by fraud or collusion a jurisdiction that now exercised by the issue of certiorari to quash Where fraud is alleged, the Court will decline to quash unless it is satisfied that the fraud was clear and manifest and was instrumental in procuring the order impugned. (4) Error of law apparent on the face of record. “ An error in decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceeding e. g., when it is based on clear ignorance or disregard of the provision of law.” In other words; it is a patent error, which can be corrected by certiorari but not a mere wrong decision. ). It was for the first time when (T. C. Basappa v. T. Nagappa AIR1954 SC 440 the Supreme Court issued the writ of certiorari on the only ground that the decision of the election tribunal clearly presented a case of error of law, which was apparent on the face of the record. The error must be apparent on the face of the records. Module – 1 127 WRIT OF QUO WARRANTO Definition and Nature. The term quo warranto means “by what authority.” Whenever any private person wrongfully usurps an office, he is prevented by the writ of quo warranto from continuing in that office. The basic conditions for the issue of the writ are that the office must be public, it must have been created by statute or Constitution itself, it must be of a substantive character and the holder of the office must not be legally qualified to hold the office or to remain in the office or he has been appointed in accordance with law. A writ of quo warranto is never issued as a matter of course and it is always within the discretion of the Court to decide. The Court may refuse to grant a writ of quo warranto if it is vexatious or where the petitioner is guilty of larches, or where he has acquiesced or concurred in the very act against which he complains or where the motive of the relater is suspicious. As to the question that can apply for writ to quo warranto, it can be stated that any private person can file a petition for this writ, although he is not personally aggrieved in or interested in the matter. Ordinarily, delay and lashes would be no ground for a writ of quo warranto unless the delay in question is inordinate. An unauthorized person issues the writ in case of an illegal usurpation of public office. The public office must be of a substantive nature. The remedy under this petition will go only to public office private bodies the nature of quo warranto will lie n respect of any particular office when the office satisfies the following conditions: (1) The office must have been created by statute, or by the Constitution itself; (2) The duties of the office must be of public nature. (3) The office must be one of the tenure of which is permanent in the sense of not being terminable at pleasure; and (4) The person proceeded against has been in actual possession and in the user of particular office in question. Module – 1 128 Another instance of granting the writ of quo waarrnto is where a candidate becomes subject to a disqualification after election or where there is a continuing disqualification. In cases of office of private nature the writ will not lie. In Jamalpur Arya Samaj Sabha v. Dr. D. Rama, the High Court of Patna refuse to issue (AIR 1954 Pat 297) the writ of quo warranto against the members of the Working Committee of Bihar Raj Arya Samaj Pratinidhi Sabha- a private religious association. In the same way the writ was refused in respect of the office of a doctor of a hospital and a master of free school, which were institutions of private charitable foundation, and the right of appointment to offices therein was vested in Governors who were private an don’t public functionary. It will not lie for the same reason against the office of surgeon or physician of a hospital founded by private persons. Similarly, the membership of the Managing Committee of a private school is not an office of public nature; therefore writ of quo warranto will not lie. In Niranjan Kumar Goenka v. The University of Bihar, (AIR 1973 Pat 85) Muzzafarpur the Patna High Court held that writ in the nature of quo warranto cannot be issued against a person not holding a public office. Acquiescence is no ground for refusing quo warranto in case of appointment to public office of a disqualified person, though it may be a relevant consideration in the case of election When the office is abolished no information in the nature of quo warranto will lie. Public Interest Litigation P I L G ood governance is the sine qua non of any State, particularly a democratic polity that would have three organs of government, namely, executive, legislative and judiciary. These three organs constitute as it were three pillars of the good and effective governance with the judiciary functioning as the watchdog for maintenance of the Constitutional balance as the powers and responsibilities of the various machineries of state, vis-à-vis one another, and the people. Public Interest Litigation Module – 1 129 An individual who does it out of concern for public interest initiates it. But after having initiated it, once the Court admits a matter, it no longer remains the concern only of the person who has initiated it. For example, Sheela Barse, a journalist, had initiated a PIL on behalf of the children who were languishing in remand homes. The respondents were the State governments who prolonged the litigation by not filing their affidavits in time. Sheela Barse had to rush from her home in Bombay to Delhi to attend the Supreme Court every time a date was fixed for a hearing. Exasperated with the willful delay caused by the State Governments, which was not adequately checked by the Court, when threatened to withdraw the petition. Although her frustration was understandable, the court could not allow her to withdraw the petition. Even if she withdrew from the matter, the Court could continue to examine the contentions made by her in the petition and deliver the orders. Although a person may be accorded standing to bring a public interest matter in Court, such a person cannot withdraw proceedings on the ground that she was disassociating herself from that matter. Justice Venkatachaliah (as he then was) speaking for himself and Ranganath Misra J (as he then was) observed that: If we acknowledge any such stands of a dominos lit is to a person who brings a public interest litigation, we will render the proceedings in public interest litigation vulnerable to and susceptible of a new dimension which might, in conceivable cases, be used by persons for personal ends resulting in prejudice to the public weal. Constraints on Public Interest Litigation. Although the courts have been liberal in conceding locus standi to public- spirited citizens to espouse petitions involving public interest, such public interest litigation has got to be constrained by considerations of feasibility as well as propriety. The constraints of feasibility restrain the courts from over admitting matters, which might go beyond its resources to deal with. The consideration of propriety persuades the courts from not undertaking issues, which are better, dealt with by the other co-ordinate organs of the government such as the legislature or the executive. It’s Area of Operation While this may be true, as far as popular perception is concerned, the truth, in a deeply vital sense, is that if certain infringement of law, injury to public interest, public loss due to official apathy, inaction or manipulation or dereliction of duty as ordained by the authoritative rules or statutes—which are co relatable to public interest, being offensive to or destructive of it, will all fall within the PIL jurisdiction and judgment given in such cases, in view of their impact and end-result or even visibility in forms of reduction or elimination of the “original sin” are often categorized as pronouncements Module – 1 130 belonging to the area of the “ judicial activism”. Some of the areas where so- termed judicial activism, emanating from PIL, has been in evidence cover subjects like environment pollution, social ills__ like dowry death/bride burning, bonding labour, child labour, custodial death police torture (Bhagalpur blinding case) and other forms of atrocities on prisoners/jail inmates, non-payment on the part of Ministers/Prime Ministers for private use of public (Air force) air crafts, public compensations, dereliction or abnegation of essential statutory duties by public Institutions/corporations or official bodies. There have been cases where other individual fundamental rights as enshrined in Part III of the Constitution have formed part of PIL as they had under public repercussions. Such PIL cases may be taken directly to Supreme Court where constitutional infringement is involved__ private, i.e., individual rights included. They can also be taken up in High Courts. It’s Rationale Usually, the courts take cognizance of a case when the person affected makes complaint. This is the question of locus standi , that is, whether a person not involved or affected in any case has any legal justification or ground to take up someone else’s case in the constitution on others behalf. The courts were reluctant to accept or admit such cases. But in the early 80s (or may be a little earlier), the Supreme Court made a relaxation of this principle and started accepting genuine and appropriate cases even through complainant was someone different from the person affected. Of course, the admissions done only after a very strict scrutiny of the points involved, the motive or motivation of the complainant and the purpose, which the case, if decided, would serve. It is only after a full satisfaction of the court that such a case is accepted as a PIL. There are many reasons, which dictate the rationale for PIL. In a country like ours, where: (1) Poverty is abysmal. (2) Illiteracy is acute. (3) Society is case ridden. (4) Backwardness is widespread, (5) Fear of the high and might is deep (6) Three M’s (money, muscles and mind) have a sway (7) Communications system is poor, (8) Judicial process is cumbersome and costly, and (9) Justice is denied through delay. It is idle to except that poor, illiterate, disprivileged, weak and vulnerable sections of society, utterly ignorant of the law and the processes of law would come out openly against the abuses of their personal or group rights(al bit legally bestowed), fighting the very people who are often treated, in remote interiors of the country, as Mai-baap (because they are rich, high caste, Module – 1 131 powerful and brutal). Fighting the government can never cross the mind of majority of our people__ as being possible, feasible, desirable or profitable. The only way such a situation can be tackled is if some public-spirited men take up cudgels on their behalf and bring up before law courts cases of law infringement or non-implementation on statutory provisions affecting adversely people or public. The alternative is that the courts suo moto take up some such cases either on the basis of reports, communications or other verifiable evidences. As of now, the courts are well disposed towards this form or course of litigation. They do not or would not reject such a course outright but would take cognizance, even if ultimately they way as well dispose of them or discuss them on good and sufficient grounds. PIL, thus, represents the arguments of both liberals and conservations upholding the soul and sprit of justice through following on initiatory procedure not traditionally preferred or favoured. The former Chief Justice of India, P.N. Bhagwati, sitting with Justice O.A. Desai in 1982 described the diatribe against PIL as: The criticism is based on a highly elitist approach and proceeds from a blind obsession with the rites and rituals sanctified by an out-moded Anglo-Saxom jurisprudence. This aroused the judicial conscience of others. Justice fazal Ali, sitting with Justice S. S. Venkataramiah in the same year referred to the whole gamut of PLIL and the courts’ jurisdiction to a five Judges Bencdh- sensing the importance and relevance of the new reality. Infect, one of the questions formulated was: Can a stranger to a cause- be he a journalist, social worker, advocate or an association of such persons initiate action before the court in matters alleged to be involving public interest or should a petition have some interest in common with others whose rights are infringed by some governmental action or inaction in order to establish the locus stand to make such a complaint? Now, it is no longer in doubt. Even a post card received from a far away place from an unknown man can e treated ass a petition (so goes the report) if it contains valid points worthy of being taken cognizance by the Court. Time have changed, approaches have changed and so have the Courts’ systems – though they are still bogged down in perhaps avoidable rituals which make for delay, add to cost and dilute justice at times. The gradual erosion in principles and values in public life since Nehru and Shastri era in India have brought into sharp focus the constitutional mandate and Supreme Court of India, arousing public interest in the on-going debate over the intentions behind Constitutional provision. It was being widely felt and publicly perceived that the declining values, lack of access to social justice and judicial system, States’ arbitrariness, corrupt practices, attack on rights, grossly deviant social and economic activities, and murder of moral mores cannot make India an honest, progressive and a prosperous society. Module – 1 132 PIL as a Tool for Access of Poor man to Justice No less a person than the former Chief Justice of India, A.M Ahmadi, had once described the Supreme Court as the world’s powerful court because of its wide-ranging, vast jurisdiction. Apart from its original, appellate, civil criminal and advisory jurisdictions, it has the power to entertain petitions even from ordinary people who otherwise cannot approach it due to financial and a host of other constraints. In the Fertilizer Corporation Manager Union v. Union of India case, the eminent jurist V.R. Krishna Iyer, the initiator of this innovative process of PIL, described law as “ a social auditor and this audit function can be put into action only when someone with real public interest ignites the jurisdiction of the Court”. In the same vein, the former Chief Justice P.N Bhagwati, picking up the thread from where Iyer left it, propounded in S.P. Gupta’s case, “the court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights, the only way in which this can be done is by entertaining writ petitions and even letters from public spirited citizens seeking judicial redress on behalf of those who have suffered a legal wrong or an injury”. At last, the problem of providing justice to millions of helpless and hapless men got recognition PIL fast became one of the most effective and powerful instruments of justice for protecting the weak, the deprived the prosecuted be they women in protective custody, children in juvenile institutions under trial prisoners in jails, unorganized workman, landless labourers, slum and pavement dwellers or people belonging to schedule castes/scheduled tribes. It is the PIL which exposed the brutality of Bhagalpur blinding, merciless exploitation of bonded labour, river (Jamuna) pollution through industrial effluents, environmental degradation, health hazard issues, education capitation rackets and so on. Not remaining confined to righting the wrongs alone, judicial activism has made its presence felt by entering areas traditionally believed to be in the domains of legislature and executive. For instance, the apex judiciary can ask for the records based on which the president and the Governors may have reached their ‘subjective satisfaction’ with regard to, say, failure of constitutional machinery in a state. This, in effect, means that such decisions can be challenged on various grounds like malafides, extraneous considerations, and unreasonableness. Governance, a clear executive function, is now a good subject of judicial activism. Similarly, justice Kuldeep Singh’s directive to the union government for in acting a uniform civil code, one of the unenforceable directive principles of State Policy (Part IV of the constitution) is another example of excessive judicial zeal. Module – 1 133 Again, certain other constitutional provisions, such as the pleasure of the president contained in articles 310, 311 and 312 of the constitution, as well as section 18 of Army Act, which deal with civil services and armed forces respectively, have been brought under judicial control through the ‘creative interpretation’ of articles 14 and 19 of the constitution. The recent “santusti”case is also a case in point. If only establishes the fact that if the constitution provides for any absolute power, it is judiciary’s own authority of judicial review, to say the least. Though such review attempts cannot be branded as “grossly undemocratic”, critics maintain that the courts, ordained as a judicial body, cannot at the same time be looked to as a “general heaven for reform movements”. It cannot, even so, be gainsaid that the need and desirability of judicial activism have clearly been established on the ground; for, more than once, It has brought out skeletons from administration’s cupboard which remained unexposed for years and would have otherwise remained so for years on end; It has shown that those in authority abuse and misuse power without compunction for noxious purposes and hide them from public gaze; All that glitters in the legislative and executive world is not gold. Arbitrariness, greed, corruption, Reports, patronage, the notorious ‘in-law and out-law’ syndrome, ‘private-gain-at public expense’ considerations, malafide motive and many other vilest vices do reign supreme in places and persons who were earlier considered to be ‘paragons of virtue’. Module – 1 134 Module-IV WE ARE WHAT WE REPEATEDLY DO EXCELLENCE THAN IS NOT AN ACT, BUT A HABIT. Aristotle Module – 1 135 Contents Pages Topic: Redress of Public grievances and Institution of Ombudsman *Institution of Ombudsman (Lokpal and Lokyukta) *Central vigilance Commission *Central bureau of investigation *Right to know *Discretion to disobey Topic: Public undertakings and Public Corporations *Organizations of public undertakings *Departmental concerns, Govt. Companies and Public Corporations *Some problems and attributes of Public Corporations Topic: Liability of State in contracts and in tort *Effect of a valid contract with government *Vicarious liability of the state *Sovereign and Non-Sovereign function of the States *Liability of the public servant and public accountability Topic: Privileges and immunities in suits of the State *Immunities from the operation of the statute *Privileges under cop *Privileges under evidence act *Immunity from estoppels *Doctrine of promissory estoppels Topic: Public administration and Role of Civil Services in India and good governance *Functions of Civil Services *-Role of Public administration *Declining standards of productivity *Diluted accountability . *Future strategies for improving the governance Module – 1 136 Redress of Public Grievances and Institution of Ombudsman A fter independence setting up of a democratic system of Government raised tremendous hopes and high expectations among people. From a purely regulatory and police administration, the government came to be entrusted with the responsibility of economic and social transformation and that too in a hurry. The state entered economic field in a big way and a number of regulations were brought into play to promote socialistic pattern of the society and to ensure distributive justice . Now let us try to find out the effect of the above upon the lives of the citizens and the type of interface between the government and the citizens it created. The Gandhian principle that, “that governments is the best which governs the least was substituted by a government which was as the American saying goes, a ‘big government’ affecting the lives of citizens from cradle to grave if not from conception itself. The committee on “Prevention of Corruption” (popularly known as the Santhanam Committee) in its report gave special attention to create machinery in the government, which should provide quick and satisfactory redress of public grievances. Accordingly, the Government on June 29, 1964 providing, inter alia, issued detailed instructions: 1. It is the basic proposition that the prime responsibility for dealing with a complaint from the public lies with the government organization whose activity or lack of activity gives rise to the complaint. Thus; the higher levels of the hierarchical structure of an organization are expected to look into the complaints against lower levels. If the internal arrangements within each organization are effective enough, there should be no need for a special ‘outside’ machinery to deal with complaints. 2. For dealing with grievances involving corruption and lack of integrity on the part of government servants; special machinery was brought into existence in the form of the Central Vigilance Commission. 3. For dealing with grievances, while outside machinery was not considered necessary of feasible for the present, the organizations and the departments should provide for quickest redressal of such grievances. 4. The internal arrangement for handling complaints and grievance should be quickly reviewed by each ministry, special care being bestowed on the task by those ministries whose work brings them in touch with the public. Every complaint should receive quick and sympathetic attention Module – 1 137 leaving in the outcome, as far as possible, no ground in the mind of the complaint for a continued feeling of grievance. 5. For big organizations having substantial contact with the public, there should be distinct cells under a specially designated senior officer which should function as a sort of outside complaint agency within the organization and, thus, act as a second check on the adequacy of disposal of complaints. Simultaneously, a demand articulated in many, from time to time, for setting up an independent authority with power and responsibility of dealing with major grievances affecting large sections of the people. It was averred that the hierarchical type of remedy for grievances of citizens should be improved by tightening up the existing arrangements and by providing an internal ‘outside’ check to keep things up to the mark. Since the main limitation of the hierarchical remedy is that the various authorities act too departmental check system. A proposal was placed before the Cabinet to the effect that this “extra-departmental check” should operate through a commissioner for redress of Citizens’ grievances, whose main functions should be to ensure that arrangements are made in each ministry/department/office. For receiving and dealing with the citizens’ grievances and that they work efficiently. In exercise of this function, the Commissioner should inspect these units, advise those who hold charge of these units and communicate his observations to the Head of Department or to the Secretary as may be necessary. He should also keep the minister informed of how the arrangements in the department under the minister are working. The proposal in essence was that the Commissioner would be an inspector and supervisor under each minister although located outside. The location for the Commissioner was suggested to be in the Home Ministry from where he would provide a common service. The proposal made it clear that the proposed Commissioner would not be anything like an Ombudsman . Firstly, he would be appointed by the government and not elected by Parliament. Secondly, he would only be an inspector and supervisor of the existing hierarchical arrangements and not an independent investigating authority, like an Ombudsman. Thirdly , the Commissioner would be very much a part of the Government machinery and not an outside agency although he would e outside the individual ministries/departments. The Cabinet approved creation of a Commissioner for Public grievances and an officer of the rank of Additional Secretary was appointed against the post in March, 1966. This arrangement continued for about a year –and –a-half. However, in 1968, the proposal for creation of the institutions of Lokpal and Lokayukta was brought forward in the form of a Bill. During this period, the incumbent in the post moved elsewhere and as an interim measure, pending deliberations on the Bill, the Secretary in the Department of Personnel was Module – 1 138 asked to perform the functions of the Commissioner. No decision as taken thereafter. Arrangements of the Secretary in the Department of Personnel concurrently functioning as a Commissioner fell into disuse. The system introduced as stated above functioned till March 1985 when a separate Department of Administrative Reforms and Public grievances was set up. A review of the functioning of this system at this stage would be relevant. During the decade 1975-76 to 1984-85 the number of complaints received and disposed of by the Central Government department is given in Table 1. TABLE 1 COMPLAINTS RECEIVED AND DISPOSED OF BY THE CENTRAL GOVERNMENT DEPARTMENTS No. of Complaints Year Received Disposed of 12,27,691 1975-76 10,07,724 9,13,687 1976-77 8,26,422 9,75,606 1977-78 9,23,809 10,64,030 1978-79 N.A 10,44,198 1979-80 N.A 11,63,959 1980-81 N.A. 12,49,024 1981-82 9,31,617 11,94,973 1982-83 11,40,024 9,80,878 1983-84 9,49,348 9,30,472 1984-95 8,68,628 N.A. Not available. Source: Annual Reports of the Ministry of Personnel (as quoted by M. L. Malhotra in his article in the journal of IIPA) The receipt of complaints hovered around 10-11 lakh and disposal around 9 to 10 lakh, thus, leaving at least one lakh of people every year dissatisfied just on account of non-disposal of their complaints. Despite this, the figures of disposal are not unimpressive. The crucial point, however, is whether the complaints disposed of led to satisfaction of the people or not. Unfortunately, data on this is not available and, therefore, it is difficult to hazard a guess in this matter. Module – 1 139 Reasons of Complaints: Before appraising and pronouncing a judgment on the then existing arrangements, let us first broadly list out reasons due to which grievances normally arise. These can be one or more of the following: 1. Delay in disposal of various matters; 2. Dilatory procedures which do not discriminate between routine and urgent; 3. Observance of rules for the sake of their observance without appreciating their effect on the end results; 4. Administrative orders in exercise of discretion by executive which may be open to question either on the ground of misuse or abuse of power resulting in injustice 5. Prevalence of corruption and outside influence; 6. Arbitrariness in executor of authority; and 7. Misconduct and misbehavior. Though no empirical data and evidence is available yet the perception of the general public of administrative machinery is not at all a happy one. There is an overwhelming feeling that the procedures take precedence over results; there is no time frame to deal with maters; guidance to the public is inadequate; and that officials deny even simple courtesy to the public. The common man feels alienated from the public because grievances genuine or otherwise are not answered and remedied by the Government. This situation exists because: 1. Grievance Officers merely act as a passive agency and they are not vested with authority to redress grievance; 2. Considerable time is taken to provide redress (a sample analysis has revealed that the time taken ranged room six months to six years); 3. The present arrangements are mostly ministry-based and deal with only letters and representations; 4. Too defensive an approach is adopted in dealing with complaints and the tendencies is to justify the action taken already; 5. In spite of many instructions on the subject, the complaint is not given a speaking reply’, i.e. indicating why a particular matter was dealt within a particular fashion; 6. There is room for more active involvement of senior officers in monitoring of grievances disposal; and Module – 1 140 7. Publicity to make people aware of the channels of redress needed stepping up. As mentioned earlier, the institution of commissioner for Public Grievances fell into disuse and there was no central agency to oversee and monitor the working of internal machinery in different organizations. Thus, as rightly pointed by the learned author, Mr. Malhotra, the scenario described above is indeed not a flattering one for the Government. Before concluding discussion on this phase, a reference to the report of the Administrative Reforms Commission will not be out of place. The Commission submitted its report on Machinery floor Redress of . Public grievances in August 1966. The central theme of this report was to create the twin institutions of Lokpal and Lokayukta with authority to investigate both complaints against corruption and grievances. Any progressive system of administration presupposes the existence a mechanism for handling grievances against administrative faults, and the recognition of a right of every member of the public to know what passes in government files. Therefore, the treatment of this subject involves the study of the following topics: 1. Ombudsman . 2. Central Vigilance Commission. 3. Right to know. 4. Discretion to disobey. Any good system of administration, in the ultimate analysis, has to be responsible and responsive to the people. Because, the chances of administrative faults affecting the rights of the persons, personal or property have tremendously increased and the chances of friction between government and the Private citizen have multiplied manifold therefore, the importance institution like Ombudsman to protect the people against administrative fault cannot be over emphasized. In the mid–nineties the main thrust of the court was public accountability to tackle the problem of corruption high places which was eating into the vitals of the polity. However, in late nineties the emphasis shifted to keeping balance between the needs of public accountability and the demands of individual rights. The canvas grievance redress strategies must be spread wide to include ‘right to know’ and ‘discretion to disobey’ besides other judicial and administrative techniques if the rampant corruption and the abuse of power is to be checked effectively before the people lose complete faith in democracy in India. Module – 1 141 OMBUDSMAN IN INDIA Introduction. About three decades back, people in parliamentary democracies had firm conviction that the parliamentary process, press and public debates, along with the provisions for the redress by way of the petition to the Government and to the Parliament could adequately remedy the ‘citizens’ grievances and control the arbitrariness of the Executive. Whenever a citizen feels aggrieved by an action of the Government, he could get remedies in the courts and where no action lay in the courts of law, he could ventilate his grievances through petitions, through members of Parliament and finally by voting down the Government in general election if it Is not responsive to his grievances. In past few decades there has been an intensive increase in the Governmental activities. Wide discretionary powers have been given to them, which are susceptible to misuse. It has also multiplied the occasions of individual grievances. Now there are more and more complaints of mal- administration, corruption, nepotism, administrative inefficiency, delay, negligence, bias, unfair preferences or dishonesty. The Justice Report (Justice represents the British Section of the International Commission of Jurists. Its report, was published in 1961) said: “There appears to be a continuous flow of relatively minor complaints not sufficient in themselves to attract public interest but nevertheless of great importance to the individuals concerned, which gives rise to the feelings of frustration and resentment because of the inadequacy of the existing means of seeking redress.” Report P. 37. It has been found that the existing democratic processes under the law are inadequate to deal with the complaints of citizens against the Government. The present scope for judicial review of administrative action is also very meager. There are no proper means of correcting an erroneous decision of facts or investigating into complaints of misconduct, inefficiency, delay or negligence. The only remedy in such cases is to approach the Minister, or to draw the attention by putting questions in the Parliament. It is difficult for an ordinary citizen to do that much. Moreover, in cases of perversity and misconduct of a Minister, the remedy is not clear. Out of two alternatives, namely, to have the ‘Counseil-d-Etat’ under French system of ‘droit administratiff’ or the Ombudsman in the Scandinavian system, most of the modern countries of the world have preferred the latter one as a suitable means for redressing innumerable wrongs of the Government officials. Module – 1 142 The problems of citizen’s grievance that have been germinated by a welfare State have caught the attention of the world for establishing an institution like Ombudsman. Prof. Rawat has rightly predicated that the “Ombudsman institution or its equivalent will become a standard part of the machinery of Government throughout democratic world.” Ombudsman originated in Sweden in 1809 was adopted in Finland in 1919 and Denmark in 1955. It was set up in New Zealand, a commonwealth country with parliamentary form of government in 1962. The ‘Justice’, a British wing of the international Commission of Jurists recommended that it be set up in England and the Parliamentary Commissioner’s Act, 1967 was passed. Ombudsman has come to stay in England . (See MP Jain The First Year of Ombudsman in England 14 JILI 159 (1972); David William’s Parliamentary Commissioner Act. 1967 30 Mod LR 547 (1967); L Cohen The Parliamentary Commissioner and MP Filter Public Law 204 (1972). The Ombudsman type of machinery has been found to be useful for redressing the grievances of citizens, which fall in the above description. It contains some of the qualities of droit administratif. The Ombudsman is an officer of Parliament who investigates complaints from citizens, against government departments, that they have been unfairly dealt with and if he finds that the complaint is justified, helps to obtain a remedy. He has usually a high status- that of a judge of the highest court and can investigate act involving corruption and mal- administration by government of ficials, sometimes including ministers. The Ombudsman system is highly flexible. This is demonstrated by its successful adaptation in four Scandinavian countries, which have significant governmental and legal difference, and in New Zealand and the United Kingdom, which have an entirely different constitutional system. The Ombudsman of each country has been designed to suit the local needs and conditions. Hence there are diff erences in them with respect to jurisdiction as well as functions. For example, the Swedish and Finnish Ombudsmen have jurisdiction over the judiciary. The Ombudsman in New Zealand, Denmark and Norway has no authority over the judiciary. The Swedish Ombudsman has no jurisdiction over the ministers. His function is generally to supervise how judges, government officials and other civil servants observe the laws and to prosecute those who have acted illegally or neglected their duties. The Danish Ombudsman has authority over the ministers as well as the judges. The Norwegian Ombudsman has authority to scrutinize the acts of ministers, which they perform as heads of a Ministry. The Finnish Ombudsman not only has jurisdiction over the Cabinet Ministers but also has authority to prosecute them. OMBUDSMAN IN INDIA Module – 1 143 Thus we have seen that the establishment of the institution of Ombudsman is the demand of time. It will be much useful in redressing the grievances of the citizens against the administration. Attempts have been made to establish the institution like Ombudsman (called Lokpal) but unfortunately it has not been established so far. However the institution of Lokayukta is functioning in some Indian States. The system of Ombudsman enables Parliament and Ministers both to correct the faults in the administration. The ministerial responsibility appears to have resulted in sheltering the mistakes in the administration. Often they make defensive answer in Parliament and found reluctant in admitting mistakes. In such a situation the system of Ombudsman is of much use. The existence of Ombudsman will encourage the administration to be sensitive to the public opinion and the demands of fairness. It will help in controlling the administration. The Administrative Reform commission has recommended for the establishment of Ombudsman type of institution in India. A Draft Bill was appended to the Interim Report of the administrative Law Commission. In 1968 a Bill called the Lokpal and Lokayuktas Bill was introduced in the Lok Sabha but before it could be passed, the Lok Sabha was dissolved and therefore the Bill lapsed. In 1971 and another Bill was introduced in the Lok Sabha but again the Bill lapsed on account of the dissolution of the Lok Sabha. In 1977 a new Bill called Lokpal Bill, 1977 was introduced in the Lok Sabha. The Bill was referred to the Joint Select Committee of the two House of Parliament but the Bill again lapsed on account of the dissolution of the Lok Sabha. Again Lok Pal Bill, 1985 was introduced in the Lok Sabha and it also lapsed because before its passage the term of the Lok Sabha ended. Again features of the Lokpal Bill, 1989 are as follows: This Bill seeks to establish the institution of Lokpal. The institution of Lokpal shall consist of a Chairman and two members who may be either sitting or retired Judges of the Supreme Court. Where all or any of the allegation have been substantiated against a Minister, the Prime Minister will decide the action to be taken on the recommendation of the Lokpal and in the case of Prime Minister the Lok sabha will decide the action to be taken thereon. In case the allegation is not substantiated wholly or partly, the Lokpal will close the case. The Lokpal has not been given jurisdiction to enquire into the allegation against the President, the Vice President, the Speaker of Lok Sabha, the Chief Justice or any Judge of the Supreme Court, the Comptroller and auditor General, the Chief Election Commissioner or Election Commissioner, the Chairman or any Member of the Union Public Service Commission. The Institution cannot enquire into any matter concerning any person if the Lokpal or any member thereof has any bias in respect of the person or matter. Lokpal cannot enquire into any matter referred for enquiry under the Commission of Enquiries Act. Besides, Lokpal cannot enquire into any complaint made five years after the date of offence stated in the complaint. Module – 1 144 The salary, service conditions and removal from the office in the case of the Chairman will be the same as those of the Chief Justice of India and in the case of other m ember will be as those of the Judges of the Supreme Court. These provisions have been made to ensure the independence of the institution of Ombudsman. The Bill also provides that a member of the Lokpal cannot be a Member of Parliament or State legislature or a political party. It also provides that a member thereof should not hold any office of trust or profit or he should not carry on any business or practice any profession. The Bill also makes provision for the appointment of staff to assist the Lokpal. The Lokpal can entertain a complaint from any person other than a public servant. The Bill has empowered the Lokpal to require a public servant or any other person to give such information as may be desired or to produce such documents, which are relevant for the purposes of investigation. He will have the powers of a Civil Court under the Civil Procedure Code, 1908 with respect: i) to summon a person and examine him on oath; ii) to require a person to disclose and produce a document; iii) to take evidence on oath; iv) to require any public document or recorded to be placed before him; v) to issue commission for the examination of evidence and documents; vi) any other matters as may be provided. In August 1998 the Prime Minister Atal Bihari Bajpae presented the Lok Pal Bill in the Lok Sabha. The Prime Minister has also been brought within the jurisdiction or power of LokPal. Under the Bill the LokPal was empowered to make enquiries in the charges of completion brought before, it against any Minister or Prime Minister or Member or either House of Parliament. However, he was not empower thereon the Bill to make enquires in the charges of corruption against the President, Vice- President, Speaker of Lok Sabha, Comptroller and Auditor general, Chief Election Commissioner and other Election Commissioner, Judges of the Supreme Court and Members of the Union Public Service Commission. Under this Bill the institution of Lok Pal was to consist of three members including its Chairman. Only the sitting or retired Chief Justice of India or any Judge of the Supreme Court could be appointed its Chairman while any sitting or retired Judge of the Supreme Court of Chief Justice of any High Court could be appointed its members. Module – 1 145