MODULE-18 DOCTRINE OF PROMISSORY ESTOPPEL:

The Doctrine of Estoppel is an important principle in administrative and constitutional law,

and also plays a crucial role in civil law. Estoppel is also referred to as promissory estoppel,
equitable estoppel, or new estoppel.

(b) Meaning of Estoppel:

The word “estoppel” means a bar or a stop. It prevents a person from going back on what
they had said or done earlier, especially when someone else has acted based on that
representation. In simple words, a person cannot say one thing at one time and then say
something completely opposite later, especially when another person has relied on the first
statement and suffered some loss because of it.

(c) Objective of the Doctrine:

The main aim of estoppel is to do justice and prevent unfair advantage. It is a rule that
appeals to the conscience of the court and is intended to avoid injustice and unfairness.

(d) Nature and Scope:

Traditionally, estoppel was considered a rule of evidence, but now it is accepted as a broader
principle of law based on equity. The most well-known form is promissory estoppel, which is
not strictly about contracts, but about fairness. The doctrine has gained more importance in
recent times and is seen as an evolving concept. Courts continue to shape and define its limits
and application.

(e) Explanation of the Doctrine:

Estoppel means that if one person, by words or conduct, causes another person to believe in a
certain fact, and the second person acts upon that belief to his disadvantage, then the first
person cannot later deny the truth of that statement, even if it was wrong. If a person,
knowing the real facts, behaves in such a way that another person gets influenced to act or
make decisions based on that, and then suffers a loss, the first person should not be allowed
to go back on their word. In simple words, a person cannot say one thing at one time and then
say something completely opposite later, especially when another person has relied on the
first statement and suffered some loss because of it.

(f) Essential Elements of Estoppel:

To apply the doctrine of estoppel, three conditions must be satisfied:Without these three
elements, estoppel cannot be applied.

 Representation: A clear representation or promise must have been made by words or

conduct.
 Reliance: The other party must have relied upon this representation or promise.
 Detriment: The other party must have suffered loss or changed their position because
of this reliance.

(g) Statutory Recognition – Section 115, Indian Evidence Act, 1872:

Section 115 of the Indian Evidence Act codifies the doctrine. It says that if a person has
intentionally made another believe in something and made him act upon it, then he cannot
later deny the truth of what he led the other person to believe.
Illustration: A falsely tells B that a land belongs to him. B buys it and pays for it. Later, the
land actually comes into A’s ownership and A wants to cancel the sale, saying he had no title
earlier. The law will not allow A to do so.

(h) Traditional View:

Under the traditional view, promissory estoppel could only be used as a defence (shield), not
as a cause of action (sword). It meant that a person could only defend himself using estoppel,
but could not initiate a case based on it. Also, traditionally, estoppel did not apply to the
government or the Crown.

(i) Modern View:

Today, the modern approach is different. Courts have recognised that promissory estoppel is
based on fairness and justice, not just strict legal rules. It is now accepted that estoppel can
also be used against the government, especially when the representation is made by a public
officer within his authority and the other person has relied on it and suffered.

CASE LAWS:

Duchess of Kingston's Case, decided over 200 years ago, established an important principle
in law. It stated that sometimes a person can't use the truth as a defense if it would be unfair
or against public policy. In simpler terms, if someone makes a serious statement or promise,
and others act based on that promise, the person who made the promise must stick to it, even
if the truth later says otherwise. This helps ensure fairness when people rely on what others
say or promise.

Central London Property Trust Ltd. v. High Trees House Ltd. (High Trees):
This celebrated case during WWII involved a landlord (A) reducing the rent of his property
due to wartime conditions. After the war, he sought to increase the rent back to its original
amount. The tenant (B) objected, relying on the initial rent reduction. The court applied
estoppel, ruling in favor of the tenant, holding that it would be inequitable for A to demand
the full rent after B had relied on the promise. Lord Denning famously stated that once a
promise is made knowing it would be acted upon, it is inequitable to allow the promisor to go
back on it.

Robertson v. Minister of Pensions:

In this case, an army officer (R) relied on the War Office's assurance that his disability was
caused by military service, which influenced him not to pursue further action on his pension
claim. When the War Office later denied the pension, the court applied estoppel, ruling that
the government could not escape its promise, and estoppel now binds the Crown.

Ganges Manufacturing Co. v. Sourujmull (Calcutta High Court, early 1900s):

This was one ofthe first Indian cases to apply the doctrine of estoppel in full. The court
recognized a cause of action for the person to whom the promise was made.

Municipal Corporation of Bombay v. Secretary of State: The Bombay High Court applied
estoppel against the government, acknowledging that estoppel applies even when the
government makes a representation that someone relies on.

Union of India v. Indo-Afghan Agencies: The Supreme Court of India applied the doctrine
of promissory estoppel, ruling that when the government makes a promise or representation,
it is bound to honor it, even if it is not in the form of a formal contract. The government
cannot avoid its obligations due to executive necessity.

Union of India v. Godfrey Philips India Ltd.:

This case dealt with the Central Board of Excise and Customs granting exemptions from
excise duty but later revoking the exemption. The Supreme Court applied the doctrine of
estoppel, stating that once the government makes a promise, it cannot go back on it,
especially when the other party has relied on it.

Motilal Padampat Sugar Mills Ltd. v. State of U.P.:

The U.P. Government promised new industrial units an exemption from sales tax for three
years. The petitioner established a factory relying on this assurance but later, the government
withdrew the benefit. The Supreme Court applied estoppel, affirming that the government
was bound to honor its promise, as estoppel applies to the government just as it does to
private individuals. Bhagwati J. emphasized that in a democracy governed by the rule of law,
no one, including the government, is above the law.

ESTOPPEL AND PUBLIC POLICY:

If a promise or agreement violates public policy, it cannot be enforced through estoppel. This
is because enforcing such promises would be detrimental to the greater good or public
interest. For example, when individuals obtain benefits like reservations under Articles 15(4)
or 16(4) of the Indian Constitution by fraudulently using false certificates, the courts will not
permit the application of estoppel. This would undermine public policy.

ESTOPPEL AND FRAUD ON CONSTITUTION:

In cases where the promise or agreement is obtained by fraudulently exploiting constitutional
provisions, estoppel cannot be applied. This includes cases where an individual fraudulently
avails themselves of rights or benefits intended to protect disadvantaged groups, such as
reservation rights under the Constitution. Courts have consistently held that allowing estoppel
in such situations would defeat the very purpose of the Constitution.
In Madhuri Patil v. Commissioner, a person used a false certificate to secure admission to a
medical college under a reserved category. The Supreme Court held that estoppel could not
be applied to validate the fraudulent act. It stated that doing so would not only harm the
rightful reserved category candidates but also undermine the Constitution's objectives.

ESTOPPE AND PUBLIC INTEREST:

The principle that public interest prevails over individual equity has been established in
various cases. The courts have affirmed that where public interest is involved, estoppel
cannot be used to prevent the state or public authorities from acting in accordance with public
policy or statutes, even if such actions contradict prior representations.
In Kasinka Trading v. Union of India, a notification issued under the Customs Act, 1962,
granted exemptions from custom duties on raw materials for two years. However, the
exemption was withdrawn earlier, citing public interest. The Supreme Court upheld this
decision, reinforcing the principle that public interest can override individual claims based on
estoppel.

ESTOPPEL AGAINST STATUTE:

One of the most crucial limitations of estoppel is its inability to override statutory provisions.
The doctrine of estoppel cannot be applied to validate acts that are contrary to a statute or to
circumvent the clear provisions of a law. This principle ensures that statutory law remains
supreme and that no representation or promise can be made to override or violate statutory
obligations.
In Amar Singhji v. State of Rajasthan, the Supreme Court held that estoppel could not prevent
the government from initiating resumption proceedings based on statutory provisions, even if
there had been a prior assurance not to do so.

MODULE-19 JUDICIAL REMEDIES:

PUBLIC INTEREST LITIGATION (PIL):

Introduction:
Public Interest Litigation (PIL) is a relatively recent and innovative feature of the Indian legal
system. It emerged as a tool to address issues that affect the larger public interest, especially
for vulnerable and disadvantaged groups, rather than individual disputes. PIL allows for the
enforcement of rights for those who cannot approach the court due to their socio-economic
condition, lack of awareness, or other barriers. It has significantly expanded access to justice
in India.

Nature of Public Interest Litigation:

PIL is different from traditional litigation, which usually involves a direct dispute between
two parties. In traditional litigation, there is a clear aggrieved party who seeks legal redress
against another party. However, PIL focuses on cases where the violation of rights impacts a
large section of the public, particularly those who are poor, uneducated, or socially
disadvantaged. In PIL, the court is approached not to resolve a personal dispute but to
safeguard public interest and ensure justice for the larger society.

In PIL, the petitioner may not be personally affected by the issue. Instead, they may approach
the court on behalf of the affected individuals or groups. This allows PIL to address issues
such as environmental degradation, violations of human rights, and the protection of
marginalized groups like women, children, and the economically disadvantaged.

Object of Public Interest Litigation:

The primary objective of PIL is to promote social justice by providing a legal platform for
addressing issues that affect the larger community, especially the marginalized and
vulnerable sections of society. It is a way to ensure that basic human rights, such as access to
education, healthcare, and employment, are accessible to all, especially those who are
deprived or in need.

PIL provides a mechanism to challenge laws, policies, or governmental actions that are
detrimental to the public interest, ensuring that the government is held accountable for its
duties and obligations to its citizens. The goal is to use the legal system to correct injustices
that have a wide-ranging impact on society, often addressing systemic issues such as poverty,
discrimination, and environmental harm.

Key Features of Public Interest Litigation:

 1. Non-Strict Standing Requirements: In PIL, the requirement for the petitioner to
show personal injury is relaxed. Any individual or organization can file a petition in
the interest of the public, even if they are not directly affected.
2. Focus on Social and Economic Justice: PIL aims to promote justice for the deprived
and marginalized communities. It seeks to enforce social and economic rights that are
guaranteed by the Constitution, such as the right to life, equality, and non-
discrimination.
3. Courts' Role: The role of the court in PIL is proactive. Unlike traditional litigation,
where the court is passive and reactive to the parties' arguments, in PIL, the court
often takes a more creative and assertive approach. The court may order
investigations, provide directions to the government, and even issue guidelines to
protect public rights.
4. Judicial Activism: PIL has contributed to judicial activism in India. Courts have
expanded their role beyond the traditional interpretation of law to ensure justice in
cases involving public interest. This has allowed courts to intervene in matters where
the government or other authorities have failed to take action.
5. Use of Letters: Another important aspect of PIL is the use of letters addressed to the
court, which are treated as petitions. This ensures that individuals who do not have the
formal means to file a petition can still bring important issues to the attention of the
judiciary.

CASE LAWS:
Public Union for Civil Liberties v. Union of India (1978): A public-spirited organization
filed a PIL to protect the rights of workers involved in construction for the Asian Games,
leading to the enforcement of labor laws for their protection. This case marked the formal
recognition of PIL in India. The Supreme Court allowed a letter to be treated as a PIL
petition, which led to the judicial recognition of PIL as a legitimate tool to address public
issues.
Vishaka v. State of Rajasthan (1997): PIL was used to protect women's rights in the
workplace, leading to the creation of guidelines for the prevention of sexual harassment at the
workplace.
M.C. Mehta v. Union of India (1987): In this case, PIL was used to address environmental
concerns, particularly air pollution in Delhi. It showed how PIL can be used to protect the
environment and the public's health.
While PIL is a powerful tool for addressing public issues and correcting administrative
wrongs, the court must ensure that the petitioner is acting in good faith and not for personal
gain or political motives. PIL should be used carefully and responsibly, as indiscriminate use
could lead to misuse of the judicial system. The court must also be cautious not to overstep its
role and interfere with the executive or legislative functions, which are separate from the
judiciary as per the Constitution.

1. HABEAS CORPUS:

The writ of Habeas Corpus is one of the most important and oldest legal tools in common
law, known for ensuring personal liberty. The Latin term “Habeas Corpus” literally
translates to "have the body," and this writ serves as a legal order directing a person who has
detained someone else to bring the detainee before the court. This writ enables the court to
determine the lawfulness of the detention. If the detention is found to be illegal, the court can
immediately order the release of the detainee.

Object of Habeas Corpus:

The primary objective of the writ of Habeas Corpus is to protect personal liberty by providing
a quick remedy against unlawful detention. If someone is imprisoned or detained without
legal justification, Habeas Corpus allows them to seek immediate relief by questioning the
legality of their detention. The writ does not focus on punishing the detaining authority but
rather on ensuring that no person is deprived of their liberty unlawfully. The court’s duty is to
determine whether the detention is legal or not.

Importance of Habeas Corpus:

The writ of Habeas Corpus holds immense importance as it safeguards the freedom of
individuals from wrongful detention. It is designed to address situations where a person is
detained either in prison or in private custody. The case of ADM Jabalpur v. Shivakant
Shukla highlights the writ's value in securing the liberty of individuals and providing swift
relief from unjustified detention.

Historical Background:
The writ of Habeas Corpus has its roots in English common law. It was initially established
to prevent unlawful detention by the monarchy. The power to issue Habeas Corpus in India
was first conferred on the Supreme Courts of Calcutta, Bombay, and Madras under the
Regulating Act of 1773. Later, after the establishment of High Courts in India, the
jurisdiction to issue Habeas Corpus was granted to both the Supreme Court (Article 32) and
High Courts (Article 226) under the Indian Constitution.

Who Can Apply for Habeas Corpus?

An application for a writ of Habeas Corpus can be made by the person who is unlawfully
detained. However, if the detained person is unable to approach the court, someone with a
legitimate interest in the detainee, such as a family member or a close friend, can file the
application on their behalf. The key is that the person filing the petition must have a genuine
connection to the detainee.

Procedure for Applying for Habeas Corpus:

To apply for a writ of Habeas Corpus, the petitioner must submit an application along with an
affidavit that states the facts and circumstances leading to the unlawful detention. If the court
is convinced that there is a valid reason to question the legality of the detention, it will issue a
rule nisi, calling the detaining authority to explain why the detention is lawful. The court will
then examine the case, and if the detention is found to be illegal, it will issue an order for the
detainee’s immediate release. If the detention is justified, the writ will not be issued.

In some cases, the court can grant interim bail or release the detainee temporarily until the
final decision is made. In exceptional situations, even if the person is not currently detained,
the court may entertain the petition with extreme caution.

Delay in Filing for Habeas Corpus:

The right to personal liberty is a fundamental right under the Constitution of India. Therefore,
even if there is a delay in filing the petition for Habeas Corpus, it does not invalidate the
application. The wrongful detention is considered a continuous violation, and the injury
persists until the detention is corrected. Hence, a delayed application does not disqualify the
petitioner from seeking relief.

When Can Habeas Corpus Be Refused:

The writ of Habeas Corpus can be refused if, at the time of the court hearing, the detention is
found to be legal. Even if the detention was illegal when it occurred, the writ will not be
issued if the detention is lawful when the rule nisi is returned. Additionally, if the detained
person is released during the pendency of the petition, the case becomes infructuous, and no
further action will be taken.

Duty of the Applicant:

The applicant must present all the relevant facts and circumstances truthfully in the petition.
Any misrepresentation or omission can lead to the dismissal of the petition.

Duty of the State:

It is the duty of the State or the detaining authority to provide the court with all relevant facts
and information about the detention. The State must ensure transparency and fairness when
defending the legality of a detention.

Duty of the Court:

The court plays a crucial role in protecting an individual's liberty. It must ensure that personal
freedoms are not violated and must act swiftly in cases of illegal detention. The court must
also balance the need to protect the community with the need to uphold the liberty of the
individual.

Successive Applications for Habeas Corpus:

Historically, applicants were allowed to file successive applications for Habeas Corpus,
hoping to find a more sympathetic judge. However, this practice has been overruled, and
today, a person cannot file repeated applications on the same grounds unless new facts or
grounds emerge.

Execution of Habeas Corpus:

Once a writ of Habeas Corpus is issued by the court, it must be obeyed. If the detaining
authority refuses to release the detainee, it would amount to contempt of court, and the person
responsible may face imprisonment or financial penalties.

Compensation for Illegal Detention:

In some cases, the court may award monetary compensation to individuals who have been
unlawfully detained. This serves as a deterrent against violations of personal liberty and
ensures that the constitutional right to life and liberty is respected. Compensation is not
usually granted but may be awarded in specific circumstances where the violation of rights is
severe.

Habeas Corpus During Emergency:

During an emergency, the President can suspend certain fundamental rights under Article 359
of the Constitution. However, the ADM Jabalpur case (1976) incorrectly held that Habeas
Corpus petitions cannot be entertained during an emergency. Fortunately, after the 44th
Amendment to the Constitution, Articles 20 and 21, which protect personal liberty, cannot be
suspended even during an emergency. Therefore, Habeas Corpus continues to be a vital
safeguard during such times.
2. MANDAMUS:
The term "Mandamus" is derived from Latin, which means "we command." It is a type of
writ issued by a superior court, such as the Supreme Court or High Court, directing a public
authority, government body, or any other body for performance of public duties imposed by
law. Mandamus is primarily issued to ensure that public officials or bodies fulfill their legal
duties and responsibilities.

Meaning and Object of Mandamus: Mandamus is an extraordinary judicial remedy that is

used to enforce the performance of public duties imposed by law. The main object of issuing
mandamus is to supply a deficiency in law and to protect the rights of individuals by
compelling the fulfilment of duties that are legally imposed on public authorities. It ensures
that the public duties are performed as required by law and thus contributes to the
administration of justice.

It is particularly useful when an individual or group is deprived of their legal rights due to the
inaction of public authorities.

History of Mandamus: The concept of mandamus has its roots in English law, and it was
introduced to India during the colonial period. The first case in which mandamus was used in
India occurred in 1775. Mandamus has been a part of the legal framework in India since then,
and its usage has evolved over time. The Specific Relief Act, 1877, provided statutory
recognition for issuing mandamus in India. The writ of mandamus was initially introduced
through the Charters of the three Supreme Courts (Calcutta, Madras, and Bombay) in the
Presidency towns.

Mandamus vs. Other Writs: Mandamus is different from other writs like prohibition and
certiorari. While mandamus is issued to compel an authority to perform its legal duties,
prohibition and certiorari are judicial remedies aimed at correcting errors made by judicial or
quasi-judicial authorities.

 Mandamus requires an authority to take action, whereas prohibition orders inaction,

i.e., it prevents the authority from doing something.
 Certiorari involves quashing a decision made by a lower court or tribunal that has
acted beyond its jurisdiction, while mandamus is used to command the performance
of a duty.

Thus, mandamus is a command for action, whereas prohibition and certiorari deal with the
correction of errors or overreach.

Discretionary Nature of Mandamus: Mandamus is not a writ of right; it is an extraordinary

remedy. Courts issue mandamus at their discretion, and it is not automatically granted. A
petitioner seeking mandamus must demonstrate a clear legal right and prove that the
respondent has a legal duty to perform the act that is being sought. If there is another
available remedy for the petitioner, the court may refuse to issue mandamus. The court must
be satisfied that mandamus is the appropriate remedy and that no alternative legal course is
available.
Conditions for Issuance of Mandamus: A writ of mandamus can be issued if the following
conditions are met:

1. Legal Right of the Petitioner: The petitioner must have a clear legal right that is
being denied, and the respondent must have a legal duty to fulfill that right.
2. Legal Duty of the Respondent: The respondent must have a statutory or common-
law duty to perform, and the duty should be imperative, not discretionary.
3. Demand and Refusal: Before seeking mandamus, the petitioner must demand the
performance of the duty and face refusal, either express or implied.
4. Good Faith: The petition must be filed in good faith and not for ulterior motives. It
must be aimed at securing justice.
5. No Alternative Remedy: Mandamus cannot be issued if there is another equally
effective remedy available to the petitioner.

Who may apply: A writ of mandamus can be applied for by a person whose legal rights have
been infringed. The right must still exist at the time of filing the petition. For an incorporated
company, the petition must be filed by the company itself. If an individual is applying on
behalf of an institution, they must provide facts showing why they are entitled to represent
the institution in the application.

Who Can Be a Respondent to Mandamus: Mandamus can be issued against a variety of

authorities, including:

 Government bodies, officials, and officers.

 Local authorities like municipalities and panchayats.
 Public corporations and educational institutions.
 Parliament and State Legislatures, though mandamus cannot be issued against them
for legislative functions.

Exceptions to Mandamus: Mandamus cannot be issued in certain situations:

 Against the President or Governor: Mandamus cannot be issued to the President or

Governor when they perform their constitutional duties.
 Against Ministerial Officers: It cannot be issued against inferior or ministerial
officers who are required to obey orders from a superior.
 Against Private Individuals: Mandamus cannot be issued against private individuals
or private corporations unless they are performing a public duty.

Delay and Laches in Mandamus: Although the law of limitation does not apply to writ
proceedings, the principle of delay and laches (unreasonable delay) is important. A petitioner
must approach the court without delay, and if there is excessive delay, the petition for
mandamus may be dismissed.

Alternative Remedy and Mandamus: Mandamus is not always the remedy of choice.
Courts may refuse to issue mandamus if there is an alternative remedy available to the
petitioner, such as an appeal or revision. However, if the petitioner’s fundamental rights are
at stake, mandamus may still be issued despite the availability of other remedies. The court’s
discretion to issue mandamus depends on the effectiveness and convenience of other legal
options.
Continuing and Anticipatory Mandamus:

 Continuing Mandamus: In some cases, the court may issue mandamus to monitor
the ongoing performance of a duty over time. This is often seen in cases involving
environmental issues or public interest litigation (PIL).
 Anticipatory Mandamus: Normally, mandamus is issued only after the violation of a
legal right. However, in cases where there is a real threat or danger to a right,
anticipatory mandamus may be issued to prevent the violation from occurring.

3. PROHIBITION:
A writ of prohibition is a judicial order issued by a superior court to an inferior court,
tribunal, or quasi-judicial authority, preventing it from continuing with a legal proceeding
that is beyond or in excess of its jurisdiction. This writ ensures that inferior courts and
authorities do not exceed their legal powers or act outside their jurisdiction. It serves as a
preventive measure, as opposed to a corrective one like a writ of certiorari, which can quash
a decision after it has been made.
Purpose of a Writ of Prohibition:
The primary purpose of a writ of prohibition is to prevent an inferior court or tribunal from
overstepping its jurisdiction. It helps maintain the rule of law by ensuring that legal
authorities operate within their defined powers.

History of the Writ of Prohibition:

The writ of prohibition is an ancient judicial remedy that dates back to common law. Initially,
it was used to limit the jurisdiction of ecclesiastical courts, which had broader powers in
medieval England. In India, the writ of prohibition continues to be an essential tool for
safeguarding judicial propriety. Post-independence, this writ is exercised by the Supreme
Court and High Courts to ensure that courts and tribunals do not exceed their jurisdiction, as
per the powers vested by the Constitution.

Grounds for Issuing a Writ of Prohibition:

A writ of prohibition can be issued on several grounds, including:

1. Absence or Excess of Jurisdiction:

o A writ of prohibition is issued if a court or tribunal acts without jurisdiction or
exceeds its powers. For example, if a tribunal imposes a tax on goods that are
exempt by law, it may be prohibited from continuing such actions.
2. Violation of Natural Justice:
o If a court or tribunal acts in violation of the principles of natural justice—such
as failing to give a fair hearing or being biased—it may be prohibited from
continuing the proceedings.
3. Unconstitutionality of the Law:
o A writ can be issued if a tribunal or court is acting under a law that is ultra
vires (beyond its legal powers) or unconstitutional. If the law giving
jurisdiction is found to be invalid, the tribunal's actions can be stopped.
4. Infringement of Fundamental Rights:
o If a tribunal's actions infringe the fundamental rights of a person, such as
violating Article 14 (right to equality) or Article 21 (right to life), a writ of
prohibition may be issued to stop such actions.
5. Error of Law Apparent on the Face of the Record:
 o If the tribunal makes an error of law that is clear and visible on the record, a
writ of prohibition may be issued to prevent it from continuing with the case.

Who May Apply for a Writ of Prohibition?

A writ of prohibition can be applied for by anyone who is affected by the excess of
jurisdiction, not just the aggrieved party. Even a stranger (someone who is not directly
involved in the case) can apply for this writ if there is a patent (clear) lack of jurisdiction in
the proceedings. This is because jurisdictional encroachment is seen as a contempt of the
Crown or the state.

Who Can Be Targeted by a Writ of Prohibition?

A writ of prohibition can be issued against judicial or quasi-judicial authorities, such as:

 Courts
 Tribunals
 Statutory authorities (e.g., tax authorities, custom authorities, statutory arbitrators)

When Prohibition Cannot Be Issued:

Prohibition cannot be issued against:

1. Administrative Authorities: If an administrative body is performing its executive or

ministerial functions, a writ of prohibition will not lie.
2. Legislature: Prohibition cannot be issued to stop the legislature from enacting or
enforcing laws.

Delay and Laches in Applying for Prohibition:

In cases where the defect of jurisdiction is patent (obvious), a writ of prohibition can be
issued regardless of any delay in applying. However, if the defect is not apparent, or if the
applicant has delayed taking action, the court may refuse to grant the writ. Delay or
acquiescence can impact the granting of the writ when the jurisdictional defect is not easily
visible.

Limits of Prohibition:
It can only be issued when it is clear that the authority has no jurisdiction or is exceeding its
given powers. If the authority has the jurisdiction but is using it incorrectly or wrongly,
prohibition will not apply. Prohibition can only be issued while the case is still ongoing. Once
the case has ended and the authority no longer has control over it (functus officio), the writ of
prohibition cannot be used, and other remedies like certiorari might be more appropriate. If
some parts of the case are within the authority's jurisdiction and others are not, prohibition
can be issued only for the parts where the authority is acting beyond its jurisdiction.

Alternative Remedy:
Though a writ of prohibition is available even if there are alternative remedies, the presence
of an adequate and effective remedy may be considered by the court when deciding whether
to grant the writ. However, if the jurisdictional defect is patent, the presence of an alternative
remedy does not bar the writ from being issued.
Execution of the Writ of Prohibition:
Once a writ of prohibition is issued, it must be followed by the inferior tribunal or court. Any
person who disobeys the writ is liable to be charged with contempt of court. This ensures
that the rule of law is upheld and that judicial orders are respected.

4. CERTIORARI:
The writ of certiorari is a powerful judicial tool that helps ensure that inferior courts or
quasi-judicial bodies stay within the scope of their legal authority. The term "certiorari"
comes from the Latin word "to certify," as historically it required lower courts to send their
records to a higher court for review. The writ serves to scrutinize the legality and correctness
of decisions made by lower courts, tribunals, and authorities, especially when they act beyond
their jurisdiction.

Meaning and Object:

The writ of certiorari is issued by a superior court (such as a High Court or the Supreme
Court) to an inferior court or authority. Its main objective is to ensure that inferior bodies stay
within their jurisdiction, act legally, and do not exceed their granted powers. If a lower body
has acted beyond its powers, the writ allows the higher court to quash its decision. Certiorari
serves as a corrective measure to prevent the abuse of power and overreach by subordinate
bodies.

The writ is generally seen as a "great corrective writ," offering a supervisory function over
lower courts and tribunals. Its role is vital in preventing judicial and quasi-judicial authorities
from transcending their jurisdiction and making unlawful or incorrect decisions.

History and Origin:

Historically, certiorari was used as a writ of error. It originated in English law when the
monarch would issue a writ to review decisions made by inferior courts. It was initially
invoked primarily in criminal matters, but over time, its use expanded to include civil
matters. In India, the Royal Charter of 1774 empowered the three Supreme Courts (Calcutta,
Madras, and Bombay) to issue certiorari. The case Ryots of Garabandho v. Zamindar of
Parlakimedi is considered one of the earliest important decisions on certiorari in India.

Conditions for Issuing Certiorari:

The writ of certiorari can be issued when the following conditions are met:

1. Judicial or quasi-judicial body must have legal authority – The authority must
have the power to make decisions on the matter at hand.
2. Authority must have the power to decide questions affecting rights – The
authority should be able to make decisions that have a direct impact on the rights of
individuals or parties involved.
3. Authority must act judicially – The body should exercise its functions with a
judicial approach, which means it must follow fair procedures and principles of
justice.
4. Authority acts in excess of its jurisdiction – The writ can be issued when the
authority oversteps the limits of its jurisdiction, either by doing something it is not
legally allowed to do or by violating procedural fairness.
Grounds for Certiorari:
The writ can be issued on the following grounds:

1. Absence or Excess of Jurisdiction: If the inferior court or authority acts without

jurisdiction or exceeds the jurisdiction granted to it by law, certiorari can be issued.
For example, if a minister revokes a license without the legal power to do so, the
decision can be quashed.
2. Jurisdictional Facts: A jurisdictional fact is a fact that must be present for the court
or authority to have jurisdiction over a matter. If the authority wrongly assumes the
existence of such a fact, certiorari can be issued. For example, if a land authority
assumes a property is "unoccupied" when it is not, it may act outside its powers.
3. Error of Law: If an inferior court or tribunal makes an error of law that is apparent
on the face of the record, certiorari can be issued. This includes situations where a
tribunal makes decisions based on irrelevant considerations, misinterprets the law, or
admits inadmissible evidence.
4. Violation of Natural Justice: If the authority violates the principles of natural justice,
such as denying a party the right to be heard, certiorari can be used to quash the
decision.

Discretionary Remedy:
Certiorari is not an automatic remedy; it is discretionary. This means that the court has the
authority to decide whether or not to issue the writ based on the facts and circumstances of
the case. A party seeking the writ must show that the inferior court or tribunal has acted
beyond its jurisdiction or violated legal principles. The court will exercise its discretion based
on the seriousness of the issue and the circumstances surrounding the case.

Who Can Apply for Certiorari?

The writ of certiorari can generally be applied for by the party whose rights are affected by
the decision of the inferior authority. However, if the matter affects the public interest,
anyone may apply for certiorari, even if they are not directly affected. If the application
comes from a person not directly involved in the case, the court has discretion in granting the
writ.

Against Whom Certiorari Lies:

Certiorari is a judicial writ and can be issued against:

 Subordinate Courts: Lower courts that are not following the law or are acting
beyond their jurisdiction.
 Inferior Tribunals and Quasi-Judicial Bodies: Bodies such as administrative
authorities or regulatory boards that perform judicial or quasi-judicial functions.
 Adjudicating Authorities: Any authority that resolves disputes and may have
exceeded its jurisdiction.

Even if the authority ceases to exist or becomes functus officio (i.e., its authority is
exhausted), certiorari can still be issued against it.

When Certiorari Does Not Lie:

Certiorari cannot be issued in the following cases:
  Against an individual, company, or private authority: Certiorari is for bodies
exercising judicial or quasi-judicial powers, not private entities.
 Against a body with no judicial powers: If an authority does not have the power to
make decisions affecting rights, certiorari cannot be issued.
 For challenging the constitutionality of an Act or Ordinance: Certiorari cannot be
used to declare an Act or ordinance as ultra vires (beyond the powers).

Delay and Laches:

The court may refuse to grant certiorari if the applicant has delayed in approaching the court
without a good reason. Even though there is no fixed limitation period for filing a writ, a
delay may harm the chances of getting the writ granted. The court will assess whether the
delay was unreasonable or if the applicant was negligent.

Alternative Remedy:
If there is an alternative legal remedy available to the aggrieved party, the court may refuse to
issue certiorari. However, this is not a strict rule, and the court may still issue the writ if the
case involves serious issues such as the absence of jurisdiction, a violation of natural justice,
or infringement of a fundamental right.

Limits of Certiorari:
While certiorari allows for the quashing of decisions, it does not permit a court to act as an
appellate body. The court will not review the facts or re-evaluate the merits of the case. Its
function is purely supervisory. The court can only examine whether the lower authority acted
within its legal powers. The court cannot substitute its own judgment for that of the inferior
authority.

5. QUO WARRANTO:
The term quo warranto is Latin, meaning "by what authority" or "by what warrant." It is a
writ issued by a court to a person who is holding a public office or exercising a public
franchise without legal authority. The person holding the office is asked to show the legal
grounds on which they hold the position. If the person cannot prove they have the legal right
to occupy the office, they may be removed from the position.

Object and Purpose of Quo Warranto:

The primary purpose of quo warranto is to safeguard public interest by ensuring that only
those who have a legitimate right to hold a public office do so. It also protects individuals
who may be deprived of their right to a public office. The University of Mysore v. C.D.
Govinda Rao case clarified that this writ allows the judiciary to control the executive’s
decisions in making public office appointments. It also serves to prevent wrongful usurpation
of public offices.

History and Origin:

The writ of quo warranto has its roots in English law and is one of the oldest writs known to
common law. The first recorded use of the writ was in 1198, when it was used to challenge
the legitimacy of a person holding an office in the church. Over time, it evolved as a tool to
ensure that public offices were held only by those with proper authority.

Conditions for Issuing a Quo Warranto:

Before a court can issue a quo warranto writ, certain conditions must be met:
  Such office must be of a public nature: The office in question must be a public one,
meaning it must serve the public interest. Private office holders, such as members of
private organizations, cannot be challenged using quo warranto.
 It must be of a substantive character: The office must be substantive, meaning it
must be an independent office, not a subordinate or temporary position.
 It must be statutory: The office must be created by law, whether under statute or
constitution, for quo warranto to be applicable. For example, the Prime Minister,
Chief Minister, or a High Court judge can be challenged by quo warranto.
 The holder must be in actual occupation of the office: The person challenging the
officeholder must show that the individual is actively occupying the office and has
usurped it without lawful authority.

Discretion of the Court:

The writ of quo warranto is not automatically granted. It is within the discretion of the court
to issue this writ. The court will consider the facts of the case, including the motives of the
applicant, the public interest, and whether granting the writ will result in any confusion or
disorder. The court may also refuse to issue the writ if it deems that there is an alternative
legal remedy available or if the case is not urgent enough.

Who Can Apply for Quo Warranto:

Any person can apply for a quo warranto writ, even if they are not directly affected by the
illegal appointment. The objective is to ensure that the person holding the office is legally
entitled to do so. A private citizen may challenge the legality of an appointment if the person
in question is occupying a public office without valid authority.

When Quo Warranto May Be Refused:

The court may refuse to issue a quo warranto writ under certain circumstances. For example,
if there is an alternative remedy available, such as filing an election petition, the court may
refuse the writ. Additionally, if there has been a delay in filing the petition, or if the person
challenging the appointment has acquiesced (i.e., accepted the situation without protest), the
court may reject the application.

De Facto Doctrine:
In some cases, a person may hold an office without legal authority but with public
acquiescence. This is known as being an officer de facto. Even though their appointment is
illegal, their actions are not automatically questioned in the court to prevent confusion in
public affairs. However, if a challenge is made, the court will examine the validity of the
officeholder’s right to the position, and if it finds that the person does not have the legal right
to hold the office, it can remove them.

Execution of the Quo Warranto:

Once a quo warranto writ is issued and it is determined that the person holding the office has
no legal authority, the person can be removed from the office. If they refuse to vacate the
office, contempt of court proceedings may be initiated against them. This ensures that the
ruling is enforced and that the individual no longer occupies the office without proper
authority.

INJUCTIONS:
In most countries like England, the US, and India, people can use prerogative remedies (like
writs) against arbitrary actions of administrative authorities. However, in many other
countries, these remedies are not commonly used.

Writs are an extraordinary remedy, so courts have discretion over when they are issued.
Instead, ordinary remedies like declaration and injunction can be used by an aggrieved
person against the administration:

1. Declaration: A court statement confirming the legal position.

2. Injunction: A court order requiring an action to be taken or stopped.

An injunction is a court order that either prohibits a party from doing a particular act or
commands them to do something. It is considered an equitable remedy, meaning that it is
used to ensure fairness and prevent harm that cannot be fully addressed by monetary
compensation.

Types of Injunctions:
Injunctions are of two main types:

1. Prohibitory Injunction: This prevents a party from doing something that is unlawful
or harmful. For example, if an administrative authority is doing something outside its
powers (ultra vires), a prohibitory injunction may be granted to stop that action.
o Temporary Injunction: A temporary injunction is granted for a limited
period. It is issued before the final decision of the case to prevent immediate
harm.
o Perpetual Injunction: This is a permanent injunction that is issued after the
court has made a final judgment. It continues indefinitely unless the court
decides otherwise.
2. Mandatory Injunction: This requires a party to do a particular act, usually one they
are obligated to perform. For instance, a public authority might be ordered to fulfill its
legal duties, like issuing a permit. However, mandatory injunctions are less common
because administrative duties can be enforced by other remedies like mandamus.

Principles Governing Injunctions:

Injunctions are primarily negative in nature (they prevent actions) in administrative law. They
are granted when an administrative authority acts outside its legal powers (ultra vires).
However, in some cases, injunctions can be positive, meaning they direct the authority to take
a specific action.

While mandatory injunctions can be ordered, they are rare in public law. This is because
public duties are usually enforced through other remedies like mandamus (which
specifically compels the performance of a public duty). In administrative law, injunctions are
often used to prevent unlawful actions by administrative authorities.

Conditions for Granting Injunctions:

For an injunction to be granted, certain conditions must be met:

1. The Plaintiff Must Be an Aggrieved Person: The person asking for the injunction
must have suffered or be at risk of suffering harm from the unlawful action of the
administrative authority.
 2. No Alternative Remedy Available: An injunction may not be granted if there is
another effective remedy available. For example, if a person can claim compensation
through damages, the court might not grant an injunction.
3. Equitable Relief: Since injunctions are an equitable remedy, the plaintiff must act in
good faith. If the plaintiff’s conduct is improper or they are responsible for the
situation, the court may refuse to grant an injunction.

Injunctions Against the Whole World:

Normally, injunctions are issued against a specific party, but in special circumstances, they
can be issued against the whole world. An example of this is Venables v. News Group
Newspapers Ltd., where an injunction was issued against the media to prevent the disclosure
of the identities of child murderers. This was done to protect their rights under the Human
Rights Act.
Injunctions in India:
In India, injunctions are governed by the Specific Relief Act, 1963, which provides the
framework for both perpetual and mandatory injunctions. Section 36 of the Act deals with
perpetual injunctions, Section 37 with temporary injunctions, and Section 39 with mandatory
injunctions. Additionally, Order 39 of the Code of Civil Procedure (CPC) outlines the
procedure for granting temporary injunctions.

MODULE-20-LIABILITY OF GOVERNMENT:

In England, the government was historically above the law due to the idea that "the King can
do no wrong." This made it hard to sue the Crown. However, the Crown Proceedings Act,
1947 allowed the government to be legally liable like any citizen.

In contrast, India never accepted this idea. The Union and States are legal entities that can sue
and be sued for contract breaches or wrongs.

CONTRACTUAL LIABILITY:

Before the Constitution:

Even before India’s Constitution came into effect, the government could be held liable for
breach of contract. For example, in 1785 (Moodalay v. Morton), the court ruled that the East
India Company could be sued like a private company. Laws like the Government of India
Acts of 1833, 1858, 1915, and 1935 also recognized government liability in contracts.

Under the Constitution:

The Constitution of India clearly supports this:

 Article 298 allows the Union and States to make contracts, do business, and manage
property.
  Article 299(1): All contracts made in the exercise of the executive power of the
Union or of a State shall be expressed to be made by the President, or by the Governor
of the State, as the case may be, and all such contracts and all assurances of property
made in the exercise of that power shall be executed on behalf of the President or the
Governor by such persons and in such manner as he may direct or authorise

Requirements under Article 299:

The provision in Article 299 makes it clear that the following conditions must be fulfilled for
contracts made by or with the Union or a State:

1. Every contract must be expressed to be made by the President or the Governor (as the
case may be).
2. Every contract must be executed by a person authorised by the President or the
Governor (as the case may be).
3. Every contract must be expressed in the name of the President or the Governor (as the
case may be).

- Written and Executed Form

 The contract must be in writing and executed.

 The words "expressed to be made" and "executed" imply that the contract must be
formally documented.
 However, literal or technical interpretation is not required. Even a series of letters
or correspondence can constitute a valid contract if they show a meeting of minds
and fulfil Article 299 requirements.
 Union of India v. A.L. Rallia Ram: No need for a "formal deed" if offer and
acceptance are in writing complying with article 299 would be valid and binding.

- Executed by Authorised Person

 The person executing the contract must be duly authorised by the President or
Governor.
 If the signatory is not authorised, the contract is void and unenforceable.
 In Union of India v. N.K. (P) Ltd., the Director was authorised to enter into a contract
on behalf of the President. However, the contract was entered into by the Secretary,
Railway Board. The Supreme Court held that the contract was entered into by an
officer not authorised for the said purpose, and therefore, it was not a valid and
binding contract

- Expressed in the Name of the President/Governor

 The contract must explicitly state that it is made on behalf of the President (Union)
or Governor (State).
 Thus, even though such a contract is made by an officer authorised by the government
on its behalf, it is still not enforceable against the government if it is not expressed to
be made on behalf of the President or the Governor.
 In Bhikraj Jaipuria, the contracts entered into by the Divisional Superintendent were
not expressed to be made on behalf of the Governor General. Hence, the court held
that they were not enforceable, even though they were entered into by an authorised
person.
 - If Valid: Effect:
A contract made in compliance with Article 299(1) is valid and enforceable against
the government, and binding on the parties involved. Once a legal contract is formed
between the government and a private party, the relationship is governed by the
contract's terms, not constitutional provisions. Article 299(2) provides that neither the
President nor the Governor is personally liable for contracts executed on behalf of the
government, and individuals executing such contracts are granted immunity from
personal liability.

- Non- Compliance Effect:

The provisions of Article 299(1) are mandatory and must be followed. They are meant
to protect the government from unauthorized contracts. If a contract doesn't comply
with these requirements, it is considered invalid and cannot be enforced by or against
the government. Previously, the Supreme Court allowed the government to ratify an
unauthorized contract, making it enforceable. However, in Mulamchand v. State of
M.P., the Court ruled that if the contract doesn't comply with constitutional
requirements, it is not considered a valid contract, and ratification is not possible. In
such cases, the contract cannot be enforced, even under the Indian Contract Act.

Quasi-contractual Liability & Section 70 of the Indian Contract Act, 1872:

Article 299(1) of the Constitution of India and Section 175(3) of the Government of India
Act, 1935 require contracts involving the government to be executed in a specific manner. If
not followed, the contract is unenforceable. However, to protect innocent parties, courts have
applied Section 70 of the Indian Contract Act, which creates a quasi-contractual liability.

Section 70 provides that if goods are delivered or work is done for someone, and that person
voluntarily accepts the goods or benefits from the work, they are obligated to compensate the
person who provided the goods or service, even if there is no formal contract.

Conditions for invoking Section 70:

1. The person must lawfully do something for another or deliver something to them.
2. It must not have been done as a gift.
3. The other person must accept or benefit from it.

Case Example: State of West Bengal v. B.K. Mondal In this case, a contractor built a building
for the government at the request of an officer. The government used the building but did not
pay. Though the contract was unenforceable due to non-compliance with Article 299(1), the
Supreme Court held that the government must compensate the contractor under Section 70
based on quasi-contractual liability.

- Doctrine of Unjust Enrichment:

The doctrine of "unjust enrichment" is an equitable principle that prevents a person from
enriching themselves at the cost of another.

(ii) Definition
The expression “unjust enrichment” is not defined in the Constitution or any statute. Stated
simply, “unjust enrichment” means the retention of a benefit by a person that is unjust or
inequitable. It occurs when a person retains money or benefits which, in justice, equity, and
good conscience, belong to someone else.
(iii) Nature and Scope
The doctrine of unjust enrichment is “just and salutary” in nature. It is based on the principle
that no person can benefit when they have not suffered a loss. The primary objective of the
doctrine is to prevent a person from gaining an unmerited and undeserved monetary benefit.
For instance, no person can seek to collect tax or duty from both ends—i.e., from the
customer, claiming they are liable to pay tax or duty to the State, and from the State,
contending that they are not liable to pay such tax or duty, even though they have collected it
from the consumer or customer.

In Sahakari Khand Udyog Mandal Ltd. v. CCE & Customs, refund on excise duty was
claimed by Sahakari Karkhana. Observing that the Karkhana had recovered such duty from
consumers or customers, the Supreme Court refused to order the refund of the amount.

- Grant of State Largess: Legal Framework and Judicial Principles:

The modern state has evolved from a "police state" to a "welfare state," taking on various
commercial roles, including the distribution of state largess (such as allotments of contracts,
plots, and licenses). While individuals have the freedom to enter into contracts with the state,
and the state has the discretion to decide whom to contract with, this discretion is not
absolute. The state must act fairly, reasonably, and without discrimination when granting
such largess.
In Common Cause (Petrol Pumps Matter) v. Union of India, the Court dealt with the arbitrary
allotment of petrol pumps by a minister. It ruled that while the government may distribute
largess, it must do so in a legal, lawful, and reasonable manner. Courts can intervene if the
decision is found to be arbitrary or discriminatory.

- Contract of Service and Government Employment:

A contract of service between an individual and the government is a relationship initially
governed by offer and acceptance, just like any other employment contract. However, once a
person is appointed to a government service, the nature of the relationship changes. It is no
longer solely governed by the terms of the contract but by statutory provisions and rules
under Article 309 of the Constitution.

Article 309 of the Indian Constitution grants the power to the Union and State legislatures to
make laws regarding the recruitment and conditions of service for government employees.
This means that after appointment, the employee's relationship with the government is no
longer a contractual one but a status-based one, determined by laws and rules that define the
duties, rights, and obligations of the employee.

The rights and duties of government employees are fixed by law, and these are enforced with
a public interest in mind. The State has an interest in ensuring that its employees adhere to
these duties and that any breach of duty is dealt with in a manner consistent with the law.

- Unconscionable Contracts:
In certain cases, the government enters into contracts that contain unconscionable terms.
These contracts may be deemed unenforceable if they are arbitrary, unreasonable, or contrary
to public policy. A contract may be considered unconscionable if it contains clauses that are
overly oppressive to one party, in this case, the employee or the individual contracting with
the government.
Some examples of unconscionable contracts in government service include:

 Discriminatory Clauses: A provision in a contract that allows the government to

terminate an air hostess' employment upon her first pregnancy is discriminatory and
violates basic principles of equality. Such provisions are deemed to be unreasonable,
arbitrary, and in violation of human dignity.
 Violation of Article 14: Article 14 of the Constitution guarantees equality before the
law. A blanket termination of government counsel without assigning any reason would
be unconstitutional, even if it aligns with a term of the contract, as it violates the
principle of equality and fairness in government actions.

Statutory Contracts and Article 299:

Article 299 of the Indian Constitution governs contracts entered into by the government in
exercise of its executive powers. However, it does not apply to contracts entered into by the
government in the exercise of its statutory powers. The distinction between executive
contracts and statutory contracts is crucial in determining the legal framework that governs
such contracts.

 Executive Contracts: When the government enters into a contract in the exercise of
its executive powers, such contracts must comply with the formal requirements of
Article 299. This article mandates that all contracts made by the government must be
executed in the name of the President or Governor, as the case may be, and must be
signed by an authorized person.
 Statutory Contracts: Contracts that the government enters into under statutory
powers, i.e., under specific laws or rules, are governed by the provisions of the
relevant statute. In these cases, Article 299 does not apply. Instead, the rights and
obligations of the parties are determined by the specific laws or regulations under
which the contract was made.

Contractual Liability and Writ Jurisdiction:

In cases where a person enters into a contract with the government and is aggrieved by a
breach of that contract, the question arises whether the individual can approach the courts
under Article 32 (Supreme Court) or Article 226 (High Court) for judicial review and
remedies.

The Supreme Court, in the case of Radhakrishna Agarwal v. State of Bihar, classified
cases of breach of contract by the government into three categories:

1. Breach of Promise: In situations where the government has made a promise or

assurance (though not formalized into a contract) and the individual has acted based
on that promise to his detriment, the government may be held liable under the
doctrine of promissory estoppel. In such cases, the individual can file a petition
under Article 226 for relief.
2. Statutory Contracts: If the contract is made under statutory powers (i.e., governed
by specific Acts or rules), the breach of statutory obligations can be challenged in a
writ petition. The individual may approach the court under Article 226.
3. Purely Contractual Breaches: If the contract is purely contractual and governed by
its terms, the individual can seek redress, but typically, such matters would not be
subject to judicial review unless there is an element of arbitrariness or a violation of
 constitutional principles such as Article 14 (right to equality). The recent trend,
however, is that the courts may still entertain writ petitions in cases involving breach
of contractual matters if there are grounds to review government action.

TORTIOUS LIABILITY:

Doctrine of Vicarious Liability:

Since the State is a legal entity and not a living personality, it has to act through human
agency, i.e., through its servants. When we discuss the tortious liability of the State, it is
really the liability of the State for the tortious acts of its servants that has to be considered. In
other words, it refers to the situation when the State can be held vicariously liable for the
wrongs committed by its servants or employees.

Vicarious liability refers to a situation where one person is held liable for the act or omission
of another person. Thus, the master may be held liable for the torts committed by his servant
in the course of employment.

The doctrine of vicarious liability is based on two maxims:

1. Respondeat superior (Let the principal be liable).

2. Qui facit per alium facit per se (He who does an act through another does it
himself).

ENGLISH LAW:
Under English common law, the Crown enjoyed absolute immunity from being sued in tort,
based on the maxim "the King can do no wrong." However, as governmental functions
expanded, this immunity became incompatible with justice and the rule of law. Prominent
figures like Prof. Dicey criticized this immunity, pointing out its absurdity. In 1947, the
Crown Proceedings Act was enacted, abolishing the general immunity and allowing the
government to be sued for tortious acts by its servants and officers, aligning it with the
principles of equality before the law and democracy.

AMERICAN LAW:
Under traditional American law, the government was exempt from tort liability, based on the
idea that there could be no legal right against the authority that makes the law. However, this
view is no longer widely accepted. Today, the government’s tortious liability is governed by
the Federal Tort Claims Act of 1946, which holds the government liable in the same way as a
private individual in most situations. However, immunity still applies in cases involving
statutory functions.

INDIAN LAW:
In India, the maxim "the King can do no wrong" was never fully accepted. Kings were
always subject to the rule of law and justice. Manu stated that it was the king's duty to uphold
the law, and Brihaspati acknowledged the vicarious liability of the state for the actions of its
servants.

CONSTITUTIONAL PROVISIONS:
Under Article 294(b) of the Constitution, the liability of the Union Government or a State
Government may arise "out of any contract or otherwise." The word "otherwise" suggests
that such liability may arise in respect of tortious acts as well. Under Article 300(r), the extent
of such liability is fixed. It provides that the liability of the Union of India or of a State
Government will be the same as that of the Dominion of India and the Provinces before the
commencement of the Constitution ("if this Constitution had not been enacted"). Therefore, it
is necessary to discuss the liability of the Dominion and the Provinces before the
commencement of the Indian Constitution.

Sovereign and Non-Sovereign Functions of the State:

Before the commencement of the Indian Constitution, the East India Company was granted
exclusive trading rights by Queen Elizabeth I in 1600. Over time, the Company acquired dual
functions: as a trader and as a sovereign entity. By the Government of India Act, 1858, the
British Crown took over sovereignty, and the East India Company ceased to exist as a
sovereign entity.

Moodalay v. Morton: The Privy Council ruled that the East India Company, despite its
powers, was not considered a sovereign entity and could be sued like any private company.

P&O Steam Navigation Co. v. Secy. of State: This case made the distinction between
sovereign and non-sovereign functions, with the East India Company not being held liable for
sovereign functions but liable for non-sovereign functions.

The case involved government workmen's negligence that resulted in injury to horses, leading
to the fundamental question of whether the Secretary of State-in-Council could be held liable
for damages caused by government servants' negligence.

Sovereign Functions:

 Courts have identified various activities as sovereign functions, including:

o Police actions in maintaining law and order.
o Military operations and related activities.
o Actions taken for national security.

Non-Sovereign Functions:

 Activities classified as non-sovereign include:

o Commercial undertakings.
o Transportation of goods and personnel.
o Maintenance of public facilities.

POST-CONSITUTION:

Vidhyawati Case (1962): The Supreme Court held the State vicariously liable for a
pedestrian's death caused by a government vehicle, rejecting the English law doctrine of
sovereign immunity. The court reasoned that, in India, the state could be sued for torts, as the
country had adopted a Republican form of government with a socialistic agenda.

Kasturi Lal Case (1965): The Supreme Court made a departure from Vidhyawati, ruling that
the State was not liable when a police officer misappropriated property. The court applied the
doctrine of sovereign immunity, stating that if a tortious act is committed by a public servant
in the exercise of sovereign functions, the state cannot be held liable.

Subsequent Developments: In several later cases, the Supreme Court distanced itself from
Kasturi Lal, particularly in instances involving commercial or non-sovereign functions of the
State. For example:

 In Memon Mohammed and Basavva Patil, the Court held the State liable for
mismanagement of property, emphasizing that the state could be considered a bailee
and had an obligation to return property or compensate when it was lost or damaged.
 In Nagendra Rao, the Court ruled that sovereign immunity cannot apply when the
state engages in commercial activities or violates citizens' rights, further undermining
the sovereign immunity defense.

Dual System of Remedies:

The current legal framework provides two primary avenues for seeking remedies against state
actions:
-Traditional tort law remedies under Article 300 of the Constitution.
-Constitutional remedies under Articles 32 and 226 for fundamental rights violations.
Conclusion :
The doctrine of state liability in India has evolved significantly from its colonial origins to its
present form. While the traditional distinction between sovereign and non-sovereign
functions continues to influence tort liability, the emergence of constitutional remedies has
provided additional protection for citizens' rights. This dual system ensures better
accountability of the state while maintaining necessary immunities for essential sovereign
functions. However, there remains scope for legislative intervention to clarify and modernize
the law of state liability in accordance with contemporary needs and expectations.

DOCTRINE OF CORNW PRIVILEGE:

In a democratic society, transparency in governance is vital. Citizens must be well-informed
about how the government functions to ensure accountability, which forms the backbone of a
democracy. Judicial systems, therefore, are expected to promote openness and fairness, and
discovery mechanisms serve as tools to facilitate the search for truth during litigation.
However, this pursuit of truth often encounters friction when governments seek to withhold
certain information under the guise of “public interest”.

This friction has given rise to the doctrine of Crown Privilege, which essentially allows the
state to withhold documents or answers if disclosure would harm the public interest. The
courts are then burdened with the delicate task of balancing transparency and justice against
national security and governmental confidentiality.

ENGLAND:
The doctrine finds its roots in English common law, where the Crown was historically
immune from being sued or compelled to disclose documents. However, over time, the
doctrine evolved, especially through judicial pronouncements, balancing the need for secrecy
with the principles of fairness and justice.
One of the earliest articulations of this doctrine was in the case of Duncan v. Cammell Laird
& Co. Ltd. (1942):
This case is foundational in establishing the broad scope of Crown Privilege in English law.
Facts: A submarine (Thetis) sank during a trial run, killing 99 people. The widow of one
victim sued for negligence and sought discovery of certain documents. The House of Lords
held that courts must accept a ministerial certificate stating that certain documents could not
be disclosed on grounds of public interest.
Legal scholars like Goodhart and C.K. Allen said the decision went against British legal
traditions. Wade warned that the government might misuse the rule to hide non-sensitive
documents. Overall, the decision helped the government keep secrets and hide evidence more
easily.

Conway v. Rimmer (1968):

A landmark case where the House of Lords reversed Duncan. The court now rejected the idea
that a minister’s word was final. It held that the judiciary has the authority to inspect
documents privately and weigh public interest against the interests of justice. The court
introduced a balancing test: Certain documents (e.g., those relating to national security) can
remain privileged, but routine communications should not.

Burmah Oil v. Bank of England (1980):

In this case, the court said that ordinary business documents can be kept secret if showing
them would harm the public interest more than help the case. The court also introduced the
idea of a “fishing expedition”. This means that a party can’t ask for documents just to see if
something useful might turn up — they must have a clear reason to believe the documents are
important to their case.

Air Canada v. Secretary of State for Trade (1983):

Courts shouldn’t overstep or question minister decisions too much. Documents should only
be shared if they’re clearly helpful. Even Cabinet minutes can be revealed if there’s serious
wrongdoing.
Coventry Newspapers Case & Glasgow Corporation Case:
In Coventry, the court allowed disclosure when it was crucial to a fair trial.
In Glasgow, Lord Radcliffe criticized the bureaucratic tendency to overuse privilege and
suppress internal communications unnecessarily.

AMERICA:
In contrast to England, the U.S. legal system favors disclosure over secrecy:
1. Statutory Framework:
The Freedom of Information Act (1966) and the Administrative Procedure Act (1946)
emphasize citizens’ right to access government information. The U.S. Constitution itself does
not directly confer this right, but judicial interpretations and statutes ensure robust access.

2. United States v. Reynolds (1953):

A military aircraft crash led to litigation where the government claimed privilege. The
Supreme Court allowed limited privilege, but warned that such claims should be scrutinized.
Later evidence revealed that no real military secret existed, raising questions about abuse of
privilege.

3. Pentagon Papers Case (New York Times v. U.S., 1971):

Newspapers published classified reports about the Vietnam War. The Supreme Court refused
the government's injunction attempt, emphasizing freedom of the press and democratic
accountability. Justice Douglas famously stated that “secrecy is anti-democratic”.

4. United States v. Nixon (1974) – Watergate Scandal:

President Nixon refused to produce the Watergate tapes citing executive privilege. The
Supreme Court ruled that the claim of privilege is subject to judicial review. The case
reasserted that no one, not even the President, is above the law.

INDIA:
Public interest immunity is a legal doctrine that permits the government to withhold certain
documents from being disclosed in court proceedings if their production would harm public
interest. The principle relies on the notion that the public good or public welfare outweighs
private interests, particularly when it comes to safeguarding sensitive government
information. However, this immunity is not absolute. Courts are tasked with examining each
claim of privilege carefully to ensure that the harm to public interest is real and substantial.
The doctrine of public interest immunity is enshrined in Sections 123 and 162 of the Indian
Evidence Act, 1872.
Generally, parties must present all relevant evidence, but if the government claims privilege
under Section 123, no adverse inference can be drawn from its failure to produce documents.
This exception is based on the public interest principle, which overrides private interests,
even though it may leave a litigant feeling aggrieved. The core idea is that public good takes
precedence over individual interests.
Section 123 of the Indian Evidence Act, 1872:
This section essentially provides for a blanket protection of unpublished official records that
relate to the affairs of the State, which can only be disclosed with the permission of the
relevant department head. This protection is grounded in the belief that the disclosure of
certain government documents could harm public interest. The decision to give or withhold
such documents is at the discretion of the department head, who must act in the interest of
national security, governance, or diplomacy.

Section 162 of the Indian Evidence Act, 1872:

Section 162 confers upon the court the power to determine the validity of a claim of privilege
against the production of a document. It enables the court to examine and scrutinize claims
made by the government regarding the nondisclosure of official records. While Section 123
gives the department head the discretion to decide on the disclosure, Section 162 provides a
counterbalance by empowering the court to review such claims

State of Punjab v. Sodhi Sukhdev Singh (1961):

The Supreme Court dealt with a case where a judge, removed from service, sought the
production of documents the state claimed were privileged under Section 123 of the
Evidence Act. The Court upheld the government's claim, ruling that the documents could be
withheld for public interest. While courts can't assess extent of harm to public interest, they
must conduct a preliminary inquiry to assess the validity of the privilege claim. Court acts as
a check against arbitrary exercise of privilege.

Amar Chand Butail v. Union of India (1991):

The Supreme Court reinforced the position in Sodhi Sukhdev Singh. In this case, the
government was again claiming privilege over certain documents in a suit filed against it. The
Court reiterated that public interest must outweigh private interest, and that the government’s
claim to privilege could not be absolute. The Court also emphasized the power of the
judiciary to scrutinize the claim of privilege to ensure that the interests of justice were not
compromised.

State of U.P. v. Raj Narain (1975):

Raj Narain challenged the election of Prime Minister Indira Gandhi and sought the
production of documents claimed by the government as privileged under Section 123. The
Allahabad High Court rejected the claim, but the Supreme Court upheld it, stating that public
interest may require withholding evidence if its disclosure harms state interests. However, the
Court emphasized the need to balance public interest with the private interest of ensuring all
relevant materials are available in court.
S.P. Gupta v. Union of India (1981):
The S.P. Gupta case, also known as the Judges Transfer case, further emphasized the
constitutional requirement of transparency and accountability in a democracy. The Supreme
Court held that in a democratic setup, citizens should have access to information about the
functioning of the government, and secrecy must only be allowed in exceptional cases where
public interest demands it. The case established that the court retains the ultimate power to
assess the validity of claims made under Section 123.

R.K. Jain v. Union of India, the Supreme Court asked for records related to the appointment
of the President of CEGAT. The Attorney General claimed the records were privileged, but
the Court allowed private inspection of the documents, except for the advice given to the
President by the Cabinet.

In A.K. Kaul v. Union of India, an employee of the Intelligence Bureau was dismissed
without an inquiry, citing national security concerns. The Supreme Court upheld the
dismissal, emphasizing that non-disclosure of documents was in the public interest due to the
sensitive nature of the agency. However, the Court clarified that it could inspect the
documents when deciding on non-disclosure claims.

Power and Duty of Courts:

Courts are not bound by what a Minister or Department Head says in an affidavit when
claiming privilege over a document. The court must balance two things:

1. Will disclosing the document harm the nation?

2. Will hiding the document cause injustice?

The court must decide which public interest is more important—protecting the State or
ensuring justice. To do this, the court can inspect the document privately (in-camera). This is
a legal and constitutional duty of the court—to make sure the government follows the law.

However, courts should not allow disclosure just to go on a "fishing expedition" or just in
case something useful turns up. Inspection should only happen when there is a clear reason to
believe the document is important.

Considerations for Disclosure:

When the government objects to showing a document because it belongs to a sensitive class,
the court can’t decide in isolation. It must look at several things, like:

 What interests might be affected by showing the document

 How serious the impact would be
 How important the issue is in the case
 How the case might be affected if the document is shown or hidden
 Whether hiding it could cause unfairness

Every case is different, so the court must decide based on the specific facts and situation of
each case.

Test:
The government may sometimes wrongly put its own department’s interest above the interest
of justice and claim privilege just to avoid inconvenience. But justice should come first, even
if it's not convenient. Courts must be aware of this and remember the principle: "public
welfare is the highest law"

Thus, the only thing that matters is whether disclosure would harm public interest. It
doesn’t matter if the document might embarrass the department, Minister, or government, or
lead to public criticism. The only valid reason to claim privilege is to protect public
interest—nothing else.

RIGHT TO KNOW:
The right to know is an essential facet of the freedom of speech and expression under Article
19(1)(a) of the Indian Constitution. It reflects the modern democratic value of transparent and
open governance, ensuring that justice is not only done but is seen to be done.

In Reliance Petrochemicals Ltd. v. Indian Express Newspapers, the Supreme Court

emphasized that the right to know enables participatory democracy and is linked to the
broader right to life under Article 21. Justice Mukharji observed that the right places a
responsibility on those who disseminate information.

In the landmark case of State of U.P. v. Raj Narain, the Court held that in a responsible
government, secrecy must be minimal. Citizens have a right to know every public act by
public functionaries unless it impacts national security.

In Dinesh Trivedi v. Union of India, a report on criminalization in politics was withheld

from the public. The Supreme Court, upholding the citizens' right to know, remarked that
"sunlight is the best disinfectant", reinforcing the role of openness in a democracy.

Further, in Union of India v. Association for Democratic Reforms, the Court ruled that
voters have the right to know the criminal, financial, and educational backgrounds of
electoral candidates. The Representation of People (3rd Amendment) Act, 2002, which
sought to dilute this, was struck down as unconstitutional for violating Article 19(1)(a).

Thus, the judiciary has consistently expanded the right to know as a vital component of
freedom of expression and democratic governance in India.

RIGHT TO INFORMATION:
After more than half a century of the commencement of the Constitution—which included
Part III (Fundamental Rights) and seven classic freedoms—no right of information was
recognised either by the Constitution or by an Act of Parliament.

As seen above, on the judicial side, such a right was upheld by the highest court of the
country in several cases and was also described as a basic right covered by Article 21 of the
Constitution. Parliament, however, did not consider it proper to enact a law for the said
purpose at that time.

Recently, however, Parliament enacted the Right to Information Act, 2005. The object of
the Act, as reflected in the Preamble, states that it has been enacted to provide freedom to
every citizen to secure access to information under the control of public authorities,
consistent with public interest, in order to promote openness, transparency, and accountability
in administration.
The Act requires all public authorities to maintain records and furnish requisite information
related to their work to people seeking such information. Thus, the present trend is towards
transparency and openness, which are absolutely necessary for accountability in the
administration of public institutions.

MODULE-22 OTHER ADMINISTRATIVE BODIES:

PUBLIC CORPORATIONS:
The concept of a public corporation signifies a paradigm shift in the role of the State from a
laissez-faire regulator to a proactive participant in socio-economic development. This
transformation is pivotal to understanding India’s evolution from a colonial police state to a
modern welfare state, particularly in the post-Independence era. With the adoption of the
mixed economy model and the State's entry into trade, commerce, and industrial
development, public corporations emerged as instrumentalities to ensure economic justice,
public accountability, and industrial efficiency.

Nature and Characteristics of Public Corporations:

A public corporation is a statutory body established by a special Act of Parliament or State
Legislature. It possesses the flexibility of private enterprise but is infused with the public
accountability of the government. Public Corporations, also known as public enterprises or
statutory corporations, are government-established entities created to carry out specific
commercial or administrative functions. In Administrative Law, they represent a hybrid
mechanism that combines public accountability with operational autonomy to efficiently
deliver services. The key features include:

1. Statutory Creation: Public corporations are established by a legislative Act that

defines their powers, functions, and structure. For example, ONGC was created under
the ONGC Act, 1959.
2. Separate Legal Entity: They have juristic personality, which allows them to sue and
be sued in their own name. This autonomy enables operational independence from
governmental red tape.
3. Autonomous Management: Despite the overall control being vested in the
government, the day-to-day administration is largely independent. This strikes a
balance between public oversight and administrative efficiency.
4. Rule-Making Powers: The enabling statute often delegates legislative powers to the
corporation, allowing it to frame regulations within the scope of the Act.
5. Constitutional Entity under Article 12: Being agencies or instrumentalities of the
State, public corporations are covered under Article 12 of the Constitution. Hence,
they are subject to writ jurisdiction under Articles 226 and 32 for violation of
Fundamental Rights. This judicial scrutiny enhances their public accountability.
6. Contractual and Tortious Liability: A public corporation is liable for breach of
contract and torts committed by its employees. However, they are not immune like the
sovereign and generally cannot claim Crown privilege. For example, they may be
liable in negligence, but not for personal torts like assault by an employee acting
outside the scope of employment.
 7. Criminal Liability: Public corporations can be prosecuted for statutory offences but
not for crimes of a personal nature (e.g., murder, rape) due to the requirement of mens
rea and physical act, which a legal person cannot perform.
8. Taxable Entity: Public corporations are subject to taxation laws unless explicitly
exempted by statute.
9. Employment Relations: The employees of such corporations are not civil servants,
and hence, are not protected by Article 311. Their appointment and removal are
governed by the statute and service rules of the corporation.

Types of Public Corporations:

Public corporations are diverse and categorized based on the nature of their activities:

 Commercial Corporations: Engage in trading and industrial activities (e.g., Air

India, State Trading Corporation).
 Development Corporations: Focus on infrastructure and industrial development
(e.g., ONGC, FCI, River Boards).
 Social Service Corporations: Provide welfare services (e.g., ESIC, Housing Boards).
 Financial Corporations: Deal in banking, insurance, and credit (e.g., RBI, SBI,
LIC).

Status and Constitutional Recognition:

Although not explicitly mentioned in the Constitution, public corporations are recognized
through their alignment with the Directive Principles of State Policy which mandate the State
to secure a social order promoting welfare (Article 38) and control the economy to serve the
common good (Article 39). Their status as legal entities means they:

 Can enter into contracts, sue, and be sued.

 Are amenable to judicial review under Articles 32 and 226.
 Can have their corporate veil lifted to examine whether they are acting as alter egos of
the State, especially in matters of Fundamental Rights violation.

Control Mechanisms over Public Corporations:

To ensure accountability, various forms of control are exercised over public corporations:

1. Judicial Control: Courts have jurisdiction over these bodies like any other corporate
entity. Additionally, being "State" under Article 12 subjects them to constitutional
scrutiny. Cases like Ajay Hasia v. Khalid Mujib Sehravardi (1981) laid down tests for
identifying whether a body is an instrumentality of the State.

2. Governmental Control:
o Appointment and Removal: Key personnel are appointed by the government.
o Financial Oversight: Expenditure beyond a prescribed limit may require
government approval. The Comptroller and Auditor General (CAG) may audit
their accounts.
o Policy Directives: The government may issue directions on matters of public
policy, while operational independence is generally retained.
o Inquiries and Investigations: Statutes often empower the government to
conduct inquiries into the functioning of corporations.

3. Parliamentary Control:
 o Creation by Law: Every public corporation is brought into existence by a
legislative Act, subject to debate and deliberation.
o Annual Reports: Corporations are required to submit annual reports and
financial statements to Parliament.
o Committee Oversight: The Parliamentary Committee on Public Undertakings
(established in 1964) evaluates the performance and policy adherence of
public enterprises.

 Zee Telefilms Ltd. v. Union of India (2005): Clarified that not all bodies performing
public functions are “State” under Article 12.
 R.D. Shetty v. International Airport Authority (1979): Held that if a corporation is
under government control, it is a "State" under Article 12.

OMBUDSPERSON:
In modern welfare states, administrative authorities play an increasingly significant role in
the lives of individuals. This expansion often leads to complaints of maladministration, abuse
of power, delay, corruption, and arbitrariness. Traditional remedies such as Judicial Review
(JR) are limited in scope, as courts cannot assess the merits of administrative decisions or
policy choices. Further, court proceedings are lengthy, expensive, and often inaccessible to
the common citizen. To address these grievances and to ensure accountability, the concept of
Ombudsman has emerged as a vital mechanism of administrative justice. The Ombudsman
acts as an independent and impartial authority to investigate complaints against public
servants or agencies, thereby upholding the rule of law, good governance, and public
confidence in administration.

Origin and Evolution:

The concept of the Ombudsman originated in Sweden in 1809, where the institution was
created to oversee the functioning of the government and protect citizens' rights. It later
spread to other Scandinavian countries and then to the rest of the world, each adopting it with
modifications suited to their administrative and constitutional setup.

In India, although the term 'Ombudsman' is not officially used in the Constitution or statutes,
the institution is represented by:

 Lokpal at the Central level (under the Lokpal and Lokayuktas Act, 2013),
 Lokayuktas at the State level.

Need for an Ombudsperson:

There are two competing tendencies in modern administration:

1. Concentration of Power in the Executive – To meet growing public needs

efficiently.
2. Risks of Abuse of Power – “More administration leads to more maladministration.”

Internal reviews within government departments often support their own earlier decisions,
which can seem unfair and reduce people’s trust. Also, because the executive (the
government) has a lot of control over the legislature (Parliament), proper checks on
government actions are often missing. That’s why we need an outside and independent
authority to keep a watch on the administration and make sure people continue to have faith
in the system.

Definition and Nature:

An Ombudsman is an independent authority appointed to receive, investigate, and resolve
complaints made by individuals against public authorities, especially concerning
administrative lapses or corruption. The Ombudsman is not a court but functions with quasi-
judicial powers, ensuring administrative accountability without judicial delay.

Key characteristics:

 Independent of executive control.

 Impartial and neutral.
 Can initiate investigations suo motu.
 Ensures informal, accessible, and cost-effective redressal.
 Has access to departmental files, ensuring evidence-based decision-making.
 Provides preventive and curative remedies.
 Though it lacks binding powers, it can recommend corrective measures.

Functions and Powers:

1. Investigation of Complaints: The primary function is to investigate complaints from

citizens alleging:
o Abuse of discretion
o Delay in service delivery
o Arbitrary or unfair decisions
o Corrupt practices
2. Suo Motu Powers: The Ombudsman can initiate action on its own in matters of
public interest.
3. Recommendations: While the Ombudsman’s orders are generally recommendatory
and not binding, they carry moral authority and are expected to be respected by
administrative authorities.
4. Annual Reports: Submission of reports to the legislature promotes transparency and
accountability.
5. Advisory Role: The Ombudsman may suggest reforms or improvements in
administrative procedures.

Development in India:
Recognizing the growing citizen dissatisfaction, the Second Administrative Reforms
Commission (1966) recommended the establishment of a Lokpal at the Centre and
Lokayuktas at the State level. It emphasized not just grievance redressal but also improving
the image of the administration. Enacted in response to public demand for a strong anti-
corruption body (notably the Anna Hazare movement).

 The Lokpal and Lokayuktas Bill was first introduced in 1968 but lapsed due to the
dissolution of the Lok Sabha. Between 1968 and 2013, the bill was introduced eight
times, each time failing to be enacted due to political disruptions.
  It was finally passed in 2013 and notified in 2014. The Lokpal is the apex anti-
corruption ombudsperson at the central level, while Lokayuktas function at the state
level. Maharashtra was the first state to enact a Lokayukta law in 1971.
 India is also a signatory to the United Nations Convention against Corruption, making
the establishment of an independent anti-corruption body a global commitment.

Features and Jurisdiction of the Lokpal

 Comprises a Chairperson and up to 8 members, of whom at least 50% must be judicial

members.
 The Selection Committee (Sec. 4), includes the PM, Speaker, Leader of Opposition,
CJI or a judge nominated by him, and an eminent jurist. A Search Committee prepares
the panel – this process has faced criticism for being politically influenced.
 Jurisdiction extends to:
o Prime Minister, with exceptions (matters relating to international relations,
public order, etc.)
o MPs, except in relation to parliamentary speech or votes.
o Central Government employees (Groups A, B, C, D).
o Whistleblower protection is also part of its mandate.
 Functions:
o Refers complaints to CVC for preliminary inquiry.
o Can direct CBI to investigate or conduct searches/seizures.
o Has the authority to attach/confiscate property or documents.
o Can sanction prosecution, replacing earlier requirement under CrPC Sec. 197
and PCA Sec. 19.
o Cases to be tried in Special Courts.
o Provides for compensation for false complaints.

Sector-Specific Ombudsmen

 Banking Ombudsman (under RBI),

 Insurance Ombudsman,
 Pension Ombudsman, etc.
These bodies provide quick redressal for consumer complaints against financial
service providers.

Criticism and Challenges:

Despite its promising framework, the Lokpal has faced significant hurdles:

1. Delayed Implementation – First Lokpal (Justice Pinaki Chandra Ghose) appointed

only in 2019, following a Supreme Court order in response to a PIL.
2. Gender Imbalance – Only 2 of 9 members are women.
3. Political Influence – Selection process lacks full independence.
4. Exclusion of Judiciary – Judicial corruption remains unaddressed.
5. Lack of Infrastructure – As revealed through RTI, Inquiry and Prosecution Wings
are yet to be established, severely limiting effectiveness.

CENTRAL VIGILANCE COMMISSION:

The Central Vigilance Commission (CVC) is an apex Indian governmental body created to
address governmental corruption and to ensure integrity in public administration. It plays a
significant role within the domain of Administrative Law, acting as a watchdog over the
executive and ensuring that the administration functions within legal and ethical bounds.

Historical Background and Establishment:

The origin of the CVC can be traced to the recommendations of the Committee on Prevention
of Corruption, chaired by K. Santhanam, in 1964. The Committee emphasized the need for an
independent vigilance body, free from executive interference, to oversee corruption cases in
public administration.

The Central Vigilance Commission was established in 1964 by an executive resolution of the
Government of India. However, it did not initially have statutory status. Initially, the CVC
functioned as an advisory body without any statutory powers. It was created to supervise
vigilance activity. Before the establishment of the CVC, allegations against Central
Government employees were investigated by the Central Bureau of Investigation (CBI), and
vigilance officers were designated within each ministry for internal oversight. The CVC
eventually took supervisory charge over these vigilance officers, although the CBI retained
its operational autonomy.

Recognizing the limitations of a non-statutory body, the Government gave statutory status to
the CVC through an ordinance in 1998. Later, in light of the Supreme Court’s judgment in
Vineet Narain v. Union of India (1998), which stressed the need to grant statutory status to
the Commission, the Central Vigilance Commission Act, 2003 was enacted. This Act gave the
CVC statutory backing and laid down its powers and functions.

Composition of the CVC:

Under the Central Vigilance Commission Act, 2003, the Commission consists of:

 A Central Vigilance Commissioner (Chairperson), and

 Not more than two Vigilance Commissioners (Members).

They are appointed by the President of India on the recommendation of a High-Powered

Committee, comprising the Prime Minister (Chairperson), the Home Minister, and the Leader
of the Opposition in the Lok Sabha.

Their tenure is 4 years or until the age of 65, whichever is earlier. The Commissioners enjoy
security of tenure and can only be removed on grounds and in the manner prescribed for a
Supreme Court judge. The members of the CVC are provided with the same measure of
independence, autonomy, and security of tenure as those of the Union Public Service
Commission (UPSC), ensuring that the body functions without fear or favour.

The jurisdiction of the CVC extends over:

 Employees of the Central Government and Union Territories.

 Public Sector Undertakings (PSUs) and nationalized banks, where employees earn a
salary of at least Rs. 1,000 per month (a figure outdated but retained in principle).
 Members of the All India Services.
  Corporations and bodies under the control of the Central Government.

The Lokpal and Lokayuktas Act, 2013 has also brought the CVC under the supervision of the
Lokpal in relation to Group A and B officers.

Powers and Functions of the CVC:

The CVC is primarily an advisory body, but it holds crucial supervisory and recommendatory
functions in matters of corruption and misconduct:

a) Supervisory Jurisdiction:

 It supervises the functioning of the Central Bureau of Investigation (CBI) in

corruption-related cases.
 Monitors vigilance administration and promotes integrity in public services.

b) Advisory Role:

 Advises the Central Government and its organizations on vigilance matters,

disciplinary proceedings, and preventive vigilance.
 Recommends actions against corrupt officials based on its inquiry findings.

c) Investigation Oversight:

 Can direct the CBI or other agencies to investigate offenses under the Prevention of
Corruption Act, 1988.
 Authorizes investigation or inquiry in complaints against senior public servants
(Group A officers or equivalent).

d) Whistleblower Protection:
Under the Public Interest Disclosure and Protection of Informers (PIDPI) Resolution, 2004,
the CVC is the designated agency to receive complaints from whistleblowers and ensure their
protection.

e) Annual Reports:
Submits an Annual Report to the President of India, which is tabled in Parliament,
highlighting trends in corruption, administrative delays, and suggestions for improvement.

Legal Status and Judicial Backing:

The Vineet Narain Case (1998) marked a turning point for the CVC. The Supreme Court held
that independent and autonomous vigilance institutions were crucial to upholding the rule of
law and directed the Government to give statutory status to the CVC. This judgment laid the
foundation for the CVC Act, 2003, thereby enhancing transparency and reducing executive
control over anti-corruption bodies.

CVC in Administrative Law Context:

Within Administrative Law, the CVC serves as:
  A check on abuse of discretionary powers by public officials.
 A body promoting accountability and transparency in governance.
 A non-judicial mechanism offering quasi-judicial and supervisory functions to ensure
lawful administration.
 A preventive and corrective institution against maladministration, which is a key
focus of Administrative Law.

Limitations of the CVC:

Despite its importance, the CVC suffers from certain limitations:
 Advisory Nature: The CVC's recommendations are not binding. Ministries and
departments are free to accept or reject its advice, which undermines its authority and
purpose.
 Lack of Investigative Powers: The Commission cannot initiate investigations on its
own. It forwards complaints to the concerned ministries or the CBI and then merely
reviews the findings and offers advice.
 Control over CBI is Superficial: Though the CVC has supervisory authority over
the CBI in corruption matters, it lacks real control. The CBI is administratively under
the Department of Personnel and Training (DoPT), which means the power to
appoint, transfer, or suspend CBI officers lies outside the CVC’s domain.
 Resource Constraints: The Commission is understaffed and under-resourced. It does
not have adequate personnel or investigative wings to deal with the volume and
complexity of corruption cases.
 Lack of Prosecution Sanction Powers: Earlier, the CVC did not even have the
authority to grant sanctions for prosecuting public servants, a critical tool in fighting
corruption. Though later laws like the PCA amendments and Lokpal Act have tried to
address this, practical challenges still remain.

CIVIL SERVICES:
The Indian Civil Services form the backbone of the country's administrative machinery,
playing a crucial role in policy formulation and implementation. From the colonial era
beginning with Warren Hastings and later Lord Cornwallis—known as the "Father of Indian
Civil Services"—the evolution of civil services has transitioned from a political tool of
colonial governance to a permanent, non-political executive institution in independent India.

In the realm of Administrative Law, civil services are viewed not only as instruments of
governance but also as entities subject to constitutional and legal norms to ensure
accountability, efficiency, and neutrality.

Nature and Role of Civil Servants:

Civil servants are considered the actual makers and implementers of law and policy in India.
They engage in two types of functions:

1. Routine mechanical work governed by established regulations and rules.

2. Policy-oriented tasks like formulating new policies or revising existing ones to meet
emerging needs.
This dual nature underscores their indispensable role in the machinery of governance,
requiring both administrative efficiency and policy insight.

Constitutional Framework:
The civil services in India are governed by several constitutional provisions:

 Article 309 empowers the Parliament and state legislatures to regulate recruitment
and conditions of service.
 Article 310 lays down the "Doctrine of Pleasure", under which civil servants serve at
the pleasure of the President (or Governor), akin to the English model of the absolute
pleasure of the Crown.
 However, this pleasure is subject to procedural safeguards provided under Article 311,
ensuring security of tenure and protection against arbitrary dismissal, removal, or
reduction in rank.
 Article 312 allows the Rajya Sabha to create All India Services in national interest
(e.g., IAS, IPS, IFS).

Doctrine of Pleasure vs. Rule of Law

Though civil servants hold office "during the pleasure" of the President/Governor (Article
310), this is not absolute. Article 311 places important restrictions:

 No dismissal/removal without an inquiry.

 The right to a reasonable opportunity of being heard.
 Exceptions apply only in cases of national security or where a full inquiry is not
feasible.

This reflects a balance between executive discretion and the rule of law, a core objective of
administrative law.

Who is a Civil Servant?

In State of U.P. v. A.N. Singh, the Supreme Court outlined the three essential tests to
determine whether a person holds a civil post:

1. Master-Servant Relationship: The person must be in a service relationship with the

State.
2. State as Appointing Authority: The appointment must be made by the State or its
authorised agency with autonomy.
3. Payment from State Treasury: Remuneration must be paid out of the Consolidated
Fund of India or State.

If all three conditions are met, the person is considered a civil servant.

Role and Importance in Administrative Law

1. Implementation of Policies: Civil servants implement laws and policies made by the
legislature and decisions taken by the executive.
2. Advisory Role: They provide expert advice to ministers and help in policy
formulation.
 3. Quasi-judicial Functions: Administrative officers sometimes exercise quasi-judicial
powers, e.g., in tax adjudication or disciplinary matters.
4. Continuity of Governance: While political executives change with elections, civil
servants provide continuity and institutional memory.
5. Accountability and Transparency: Administrative law ensures that civil services
function within the bounds of legality and fairness through mechanisms like judicial
review, RTI Act, and administrative tribunals.

Landmark Judicial Decisions

 UOI v. Tulsiram Patel (1985): The Supreme Court held that the protection under
Article 311 is not absolute and can be overridden in cases involving national security
or moral turpitude, provided reasons are recorded in writing.
 Bhopal Sugar Industries Ltd. v. ITO (1997): Though not directly on civil service,
this case underscored principles of administrative fairness and reasonableness,
reinforcing the need for accountability in public services.

Criticism of Indian Civil Services:

Despite their constitutional safeguards and crucial role, the civil services in India face various
criticisms:

 Status quoist approach leading to resistance to change and innovation.

 Rule book bureaucracy, resulting in red-tapism, procedural delays, and lack of
responsiveness.
 Political interference, leading to compromise in neutrality and efficiency.
 Generalist vs. Specialist Debate: Generalist IAS officers often handle domains
requiring technical expertise, which questions the quality of policy implementation.

Suggested Reforms:
To make civil services more dynamic and people-centric, the following reforms have been
suggested:

 Lateral Entry: To induct domain experts into key government roles, ensuring
specialization and new perspectives.
 Creation of a Central Talent Pool: For better allocation of officers based on aptitude
and domain expertise.
 Performance-Based Management: Incentivizing efficiency and introducing
measures for dealing with underperformance.
 Citizens’ Charter and Transparency: Enforcing accountability through measurable
service delivery standards and grievance redressal mechanisms.
ADMINISTRATIVE LAW IN THE CONTEXT OF LOCAL SELF-GOVERNMENT:
In the context of local self-government, administrative law plays a crucial role in regulating
how local government bodies operate, interact with citizens, and exercise their powers. Local
self-government refers to the decentralization of administrative and political powers to local
authorities, enabling them to manage local affairs. Administrative law provides the
framework for ensuring that these bodies act within the bounds of the law, are accountable to
the people, and operate in a transparent and just manner.

Concept of Local Self-Government:

Local self-government is a system of government where local entities such as municipalities
or panchayats are given the authority to administer and govern their respective regions
without interference from higher levels of government. In India, the Constitution under Part
IX (Panchayats) and Part IX-A (Municipalities) provides a framework for local governance,
ensuring autonomy while aligning with the broader national framework. Local self-
government is founded on the principle of subsidiarity, which holds that matters should be
handled by the smallest, lowest, or least centralized competent authority.

Constitutional Basis of Local Self-Government:

The Constitution of India recognizes the importance of local self-government as part of the
democratic process. The 73rd and 74th Amendments to the Constitution (1992) provided
constitutional status to Panchayats and Municipalities, respectively. These amendments were
aimed at strengthening local governance by:

 Providing for the establishment of Panchayats and Municipalities at the district and
urban levels.
 Enabling direct election of representatives to these bodies.
 Devolving administrative and financial powers to local authorities.
 Ensuring reservation for women, SCs, and STs in local governance bodies.

Administrative Functions of Local Government:

Local self-government institutions, primarily panchayats and municipalities, are empowered
with several administrative functions that affect local communities directly. These functions
include:

 Public Health and Sanitation: Local authorities are responsible for sanitation, waste
disposal, and public health issues, such as water supply and prevention of epidemics.
 Urban Planning and Development: In urban areas, municipal corporations are
tasked with urban planning, including zoning, housing, infrastructure, and land
development. They also enforce building regulations and manage town planning
schemes.
 Education and Social Welfare: Local bodies are involved in providing basic
education, promoting literacy, and ensuring social welfare services to vulnerable
groups within the community.
 Revenue Collection and Management: Local authorities are responsible for levying
and collecting taxes such as property tax, water tax, and other local revenue sources.
They are also responsible for maintaining budgets and financial records.
Legal Framework Governing Local Self-Government:
The functioning of local self-government is governed by various statutes, rules, and
regulations that ensure their proper administration. Some of the primary laws governing local
self-government are:

 The Panchayats Act, 1992: This Act governs rural local bodies at the village,
intermediate, and district levels. It establishes the structure, powers, and duties of
Panchayats, including provisions on elections, finance, and administration.
 The Municipalities Act, 1992: This Act regulates the functioning of urban local
bodies, including municipalities and municipal corporations. It deals with urban
planning, taxation, and urban governance.
 The Bombay Municipal Corporation Act, 1888 (for Mumbai): This specific Act
governs the functioning of the Municipal Corporation of Greater Mumbai, setting out
provisions related to administration, powers, and governance in Mumbai.

The Role of Administrative Law in Local Governance:

Administrative law serves as a control mechanism to ensure that local self-government bodies
act within the legal framework. It ensures that the powers granted to local authorities are
exercised in a lawful, fair, and reasonable manner. The role of administrative law in local
self-government includes the following:

 Legality of Action: Administrative law ensures that local bodies act within the
powers conferred upon them by law. Any action that exceeds these powers or is taken
without proper legal authority can be challenged in courts.
 Judicial Review: Administrative actions of local government bodies are subject to
judicial review. Citizens can challenge the legality, reasonableness, or fairness of
administrative decisions. Courts examine whether the local authority has acted within
its powers, followed due process, and made decisions in a fair and just manner.
 Due Process and Natural Justice: Local authorities are bound by the principles of
natural justice, such as the right to a fair hearing, the right to know the reasons for
decisions, and the right to appeal. These principles ensure that administrative
decisions affecting individuals or communities are made transparently and equitably.
 Discretionary Powers: Local authorities are often vested with discretionary powers,
such as the power to grant or deny licenses, permits, or permissions. Administrative
law ensures that such discretionary powers are exercised reasonably and not
arbitrarily.
 Accountability: Administrative law also mandates that local self-government bodies
are accountable to the public and the state legislature. There are provisions for audit,
oversight, and checks and balances to prevent misuse of power.

Oversight and Accountability Mechanisms:

The accountability of local self-government institutions is maintained through various
mechanisms:

 State Government Oversight: State governments monitor and supervise the

functioning of local self-government bodies. They ensure compliance with legal and
regulatory frameworks and intervene when necessary to correct any illegal or
arbitrary actions.
  Local Election Commissions: These bodies conduct elections for local government
institutions and ensure that elections are free and fair.
 Audit and Accountability: Local bodies are required to maintain financial
transparency and undergo audits by the Comptroller and Auditor General (CAG) or
state audit departments. This ensures that public funds are used efficiently and
effectively.

Challenges in Local Self-Government and Administrative Law:

Despite its constitutional recognition and legal framework, local self-government faces
several challenges:

 Inadequate Financial Resources: Many local self-government bodies lack sufficient

financial autonomy and resources to execute their functions effectively. This often
leads to dependency on state and central government grants.
 Interference by State Governments: Sometimes, state governments exercise undue
control or interference in the functioning of local bodies, thereby undermining their
autonomy.
 Ineffective Implementation of Laws: Despite the existence of laws governing local
governance, there are often delays in implementation due to bureaucratic hurdles or
lack of capacity at the local level.
 Lack of Transparency and Accountability: In some cases, local authorities may act
in a manner that lacks transparency, leading to corruption or mismanagement.
Administrative law provides remedies, but enforcement remains a challenge.