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INDIAN LEGAL HISTORY AND IT’S IMPACT ON CONSTITUTION
INDIAN LEGAL HISTORY AND IT’S IMPACT ON
CONSTITUTION
The legal history
pertaining to exercise of the power in India starts from the time of 1773 when
the British parliament passed the Regulating Act which be came an important
mile stone in the constitutional history of India. The Regulating Act set up a
government of Bengal consisting of a governor-general and four Councillors in
whom was vested the whole civil and military Government of the Presidency of
Bengal and also the government and the territorial acquisitions and revenues in
the kingdoms of Bengal, Bihar and Orissa. The Presidents and Councils of Bombay
and Madras were to be subordinate to the Governor- General and Council who were
made the supreme Government in India.
The victory lord civil
in the battle of plassey in 1757 laid down the foundations of the British
empire and thereafter the year of 1765 has been considered to be a turning
point in Anglo- Indian history providing the territorial sovereignty be the
East India company. Since the regulating Act has provided the jurisdiction to
set up a Supreme Court in Bengal, which was consisting of a Governor- General
and four councillors vested with the power of civil and military Govt, the
jurisdiction conferred to the Supreme Court in Bengal was extended to all
British subjects. Thus the power given to the Governor- General and his council to move and issue
Rules, ordinance civil Govt. of the presidency of Bengal in 1781 there were
many changes in regulating Act by issuance of Act of settlement and the same
clarified that what law has to be administered by the Supreme Court. By the
pits India Act, the Governor- General was vested with the power of
superintendence, control and directions of the presidencies of Bengal, Bombay. Madras
which were sub- ordinate to the Governor- General but there was dual control of
the committee of the secretary of England. Over- Governor- General which
continued up to 1850 when the Govt. of India was taken over by the British
Govt. from the company. The charters Act, 1813, of the year of1833 and the year
of1853 created a separate legislative council consisting of 12 members win of
includes the Governor- General. The commander in Chief, four members of the
council and six legislative members of whom two were English judges of Calcutta
Supreme Court and four officials appointed by the local govt. of Madras,
Bombay, Bengal and Agra. The Governor- General of India.
The Govt of India Act, 1858
had abolished the power of the board of control and the court of direction
which were transferred to the secretary of the state and his council consisting
of 15 members, Thereafter the Indian councils Act in 1861, 1892 and in 1909
known as Minto Morley reform were introduced: creasing the members up to sixty
for additional members of Governor- general council fifty members were for
Madras, Bengal. U.P., Bombay, Bihar and Orissa while thirty members were from
Punjab, Burma & Assam. Thus the imperial legislative council was to consist
of 37 officials and 23 non- officials.
Since the
people were dissatisfied with the reform of 1909, Mr. Montagu the new secretary
for the state of India made certain reforms for increasing association of
Indians in self Govt. with a view to the progressive realisation of responsible
Govt. in India as an integral past of British empire. However, the Govt. of
India, Act, 1919 provided a great land mark in the constitutional development
and the aforesaid Act set up a bicarmesal legislative consisting of two houses
as council of state and control legislative Assembly with a life span of five
years and there years respectively. This Act provided for two lists of subjects
as to get uniformity in legislation was necessary and desirable. Thus the
control list and provincial list were given while the residuary subjects were
divided pet were control and provinces ultimately the Govt. of India Act- 1935
has provided the federal legislature which was consisting of federal Assembly
and the council for the state. This Act provided for the establishment of the
federal court of India with the jurisdiction over the provinces and the state
consisting of a Chief justice and two puisne judges. However the last word
regarding interpretation of the legislative within the spear reserved for them
was to be said by the privy council sitting in London.
The Indian Independence
Act, 1947 provided that until a new constitution in framed, the Act made by the
existing constituent Assembly, exercising all such powers which were formally
exercised by control legislative were given additional power regarding the
framing of new constitution. The constituent Assembly met on Dec. 9, 1946 and 4
Dec. 1946 Dr. Rajendra Prasad was elected as the permanent Chairman of the
constituent Assembly. The constitution was adopted by the constituent Assembly
on Nov. 26, 1949 and come in to force on Jan. 26, 1950. However a referendum
which should have been held and the constitution should have been referred to
the people of India for their approval was not been done. However it is said
that the constitution should have it’s roots, it’s authority, its sovereignty
from the people which has not been done. Thus prior to the coming in to force
of the constitution, the High Court of Madras, Bombay and Calcutta had the power
to issue certain prerogative writs will in their original civil jurisdiction
prior to the amendment of 1963, the High Court were given power to issue a writ
within its territorial jurisdiction but the power was conferred after the
amendment of 1963 to empower the High Court for issuance of a writ in which a
cause of action has arisla within its territorial jurisdiction even if the
Govt. of the authority again whom the writ is issued is not within its
territorial jurisdiction.
OBJECTS AND SCOPE OF CONSTITUTION
Democracy is impossible without the effective
participation of citizens which involves the creation of certain conditions
facilitating such participation. Civil education of citizens, leadership
training and inculcation of morals and values in them are necessary for a sound
democratic system.
Different
meanings have been given to the term ‘Republic’ by various writers. According
to jellinek, a Republic is a Government not by a single person but by a
collegial organisation more or less numerous. The view of Madison is that a
Republic “is a government which derives its powers directly or indirectly from
the great body of the people and is administered by persons holding their
offices during pleasure, for limited period or during good behaviour. It is
essential to such a government that it be derived from the great body of the
society, not from any portion, or a favoured class”. According to Justice
Cooley, “By the republican form of government is understood a government by
representatives chosen by the people or community as an organised whole wield
sovereign powers of Government and, on the othe(F)
The preamble And our constitutional Safe
Guards
The preamble
secures to all citizens social, economic and political justice. Social justice
demands equality along with liberty. In a country like India, it is necessary
that the state must try to improve the lot of the down-trodden and weaker
sections of the people and provisions have been made in the constitution for
that purpose. Economic justice is a corollary to social justice. It demands
that there should be no discrimination between man and man on the basic of
economic values. The very concept of economic justice demands a socialistic
pattern of society. The ideal before the Indian constitution is the
establishment of a welfare state. Pandit Jawaharlal Nehru is said to have told
the constitution, to feed the starving people and clothe the naked masses and
to give every Indian fullest opportunity to his capacity”. Again, “I trust this
constitution itself will lead to the real freedom that we have clamoured for
and that freedom, in turn, will bring food to our starving peoples, clothing
for them, housing for them and all manner of opportunities of progress.”
The preamble
emphasises the fact that it is the people of India who solemnly resolved to
constitute India into a sovereign, socialist, secular and Democratic Republic
and adopted, enacted and gave to themselves the constitution on November 26;
1949 for the realisation of the goals of justice, liberty, equality and
fraternity as explained in the Preamble.
As the
authority of the Government of India is derived from all the people, no section
of the people can challenge it. Nobody can assent that he is not bound by the
authority of the state because he has not given consent to it. The fact is that
his own will is included in the will of the state. No political party in India
can challenge the authority of the state as the same is derived from the
people.
The
constitution of India is not a gift of the British Parliament. It was given by
the people of India assembled in the constituent Assembly to themselves. The
constituent Assembly was competent to determine the political future of the
country in any manner it liked and it declared the ultimate sovereignty of the
people of India and the constitution of India rests on their authority.
The term
‘socialism’ has been defined in shorter oxford dictionary as “a theory or
policy of social organisation which advocates the ownership and control of the
means of production, capital, land, property etc. by the community as a whole
and their administration or distribution in the interests of all”.
In excel wear
v. Union of India AIR1979SC25, the Supreme Court held that the concept of
socialist or a socialist state has undergone changes from time to time from
country to country and from thinkers to thinkers, but some basic concept still
holds the field. In the same judgement, Mr. Justice Untwalia quoted with
approval the following passage from the judgement of the Supreme Court in
Akadasi Padhan v. state of Orissa AIR 1963 SC 1047 where Mr. Justice
Gajendragadkar had observed thus: “With the rise of the philosophy of
socialism, the doctrine of Broadly speaking, this discussion discloses a
difference in approach. To the justification is the general notion of social
welfare. To the rationalist nationalisation or state ownership is a matter of
expediency dominated by considerations of economic efficiency and increased
output of production. This latter view supported nationalisation only when it
appeared clear that state ownership would be more efficient, more economical
and more productive. The former approach was not very much influenced by those
considerations and treated it as a matter of principle that all important and
nation- building industries should is pragmatic. The first proceeds on the
general ground that all national wealth and means of producing it should come
under national control, whilst the second supports nationalisation only on
grounds of efficiency and increased output”. Mr. Justice Untwalia further
observed that “the difference pointed out between the doctrinaire approach to
the problem of socialism and the pragmatic one is very apt and may enable the
courts to lean more and more in favour of nationalisation and state ownership
of an industry after the addition of the word ‘socialist’ in the preamble of
the constitution”.
In D.S.
Nakara v. Union of India, the Supreme Court held that the basic framework of
socialism is to provide a decent standard of life to the working people,
particularly security from cradle to the gravel. The object is to achieve
economic equality and equitable distribution of income. This is a blend of
Marxism and Gandhism, leaning heavily towards Gandhian socialism. This it the
type of socialism intended to be established in India.
“An India in
which the poorest shall feel that it is their country in whose making they have
an effective voice, an India in which all communities shall live in prefect
harmony. There can be no room in such an India for the curse of untouchability
or the curse of intoxicating drinks and drugs. Women will enjoy the same rights
as men.”
In Kedar
Pandey v. Narain Bikram Singh, the appellant and respondent were contesting
candidates to the state legislative assembly. The respondent was declared
elected and the appellant filed an election petition challenging the election
on the ground that the respondent was not duly qualified as he was a citizen of
Nepal and not India. The Supreme Court held that assuming that the respondent
was not born in the territory of India, on a consideration choice in India long
before the end of 1949 which is the material time under Article 5 of the
constitution. He had formed the deliberate intention of making India his home
with the intention of permanently establishing himself and his family in India
and therefore had the requisite animus manendi. He was ordinarily resident in
India for 5 years immediately preceding the time when Article 5 into came
force. As the requirements of Article 5 were satisfied, the respondent was a
citizen of India at the relevant time. In the words of Mr. Justice
P.N.Bhagwati, “These fundamental rights represent the basic values cherished by
the people of this country of the individual and create conditions in which
every human being can develop his personality to the fullest extent. They weave
a pattern of guarantee on the basic structure of human rights and impose
negative obligations on the state not to encroach on individual liberty in its
various dimensions.” As regards the test for determination of infringement of
fundamental rights, it was held in A.K. Gopalan v. Union of India, that the
object and form of state action alone need be considered and effect on
fundamental rights in general will be ignored. However, this view was rejected
by the Supreme Court in R. C. Cooper v. Union of India, where it was held that
the theory that the object and form of state action determine the extent of
protection which the aggrieved party may claim was not consistent with the constitutional
scheme which aims at affording the individual fullest protection of his basic
rights. The state action must be judged in the light of its operation upon the
rights of the individual and groups of individuals in all its dimensions.
In Bennett Coleman Co. v. Union of India, it
was held that the tests of pith and substance of the subject matter and of
direct object and of incidental effect of the legislation were irrelevant to
the question of infringement of fundamental impugned state action on a
particular fundamental right. In Maneka Gandhi v. Union of India, the Supreme
Court emphasised the relevance of directness of the impugned action in
adjudging the infringement of a particular fundamental right.
In Arti
Sapru vs State of Jammu and Kashmir, it
was held that the classification made for rectification of regional imbalances
without identifying the areas suffering from imbalance, was vague and arbitrary
and violative of Article 15 (4). The Government of Jammu and Kashmir earmarked
25% of the seats out of the total number of 50 seats for admission to the
M.B.B.S. course in the Government Medical College for rectification of regional
imbalance in different parts of the state. By a notification, certain villages
were identified as socially and educationally backward for rectification of
imbalance. It was held that there was no material before the Government
affording a basis for classifying these villages as socially and educationally
backward areas. The classification was arbitrary and unconstitutional.
r, the rule
of one man as King Emperor, Czar or Sultan, or with that of one class of men as
an aristocracy”.
Constitutional Fundamental Rights in it’s
different forms
Fundamental Rights have been
provided in the Indian constitution in different forms. In some cases there is
an express declaration of rights, e.g., Articles 29 (1), 30 (1), 25, 26 and 32.
Some rights are declared as prohibitory without any reference to any person or
body to enforce them, e.g., Articles 28 (1), 23 (1) and 24. Some of these
rights take specific forms of restriction of state action, e.g., Articles 14,
15, 16, 20, 21, 22, (1), 27 and 28. A few of the Articles authorise the state
to make laws in derogation of the fundamental rights, e.g., Articles 15 (4), 16
(3), 16(4), 16 (5), 23 (3), 22 (6), 25 (2), 28 (2) and 28 (3). Some of them are
also given the form of positive declaration and simultaneously providing for
the imposition of restrictions of those rights, e.g., Articles 19 (1) and 19
(2) to 29 (6). The declaration of fundamental rights does not follow a uniform
pattern. They seek to protect the rights of individuals or groups of
individuals against the infringement of those rights within specific limits.
The constitution declares that the state shall not make any law which takes
away or abridges the fundamental rights and such laws to the extent of
inconsistency shall be void. In this sense, the fundamental rights operate as
limitations on the exercise of power of parliament and state legislatures.
The twenty-fifth amendment of the
constitution in 1971 and Forty- second amendment of the constitution in 1976
enhanced the importance of directive principles by giving precedence to them
over the fundamental rights. Minerva Mills Ltd. y. Union of India,AIR1980SC1789
the change made in Article 31-C by which primacy was given to all Directive
Principles of state policy over fundamental rights by the forty-second
amendment in 1976, was struck down. The result is that the power of parliament
has been limited to framing of laws to enforce only two Directive Principles.
Articles 39 (b) and 39 © even if they violate the fundamental rights enshrined
in Articles 14, 19 and 31. The result is that Article31-C has not been struck
down as such but the attempt to enlarge its scope in 1976 has been nullified.
A question
has been asked why these rights are called fundamental rights when they can be
restricted or deleted by an amendment of the constitution and can also be
suspended by a Proclamation of Emergency. The answer is that these rights are
called fundamental rights because they are the most essential for the
attainment by the individual of his full moral and spiritual stature. The
denial of these rights will keep his more and spiritual life stunted and his potentialities
undeveloped. To quote D.K. Sen, “Fundamental Rights are those tights of liberty
and property which are essential to the development of man as an individual. A
fundamental right does not therefore merely mean a right of liberty which
enables an individual to develop his faculties in his interest and in the
interest of the community as a whole”. (A Comparative study of the Indian
constitution, Vol. II, p. 188).
In cases like
those of Maneka Gandhi, Sunil Batra, Hoskot and Hussainara Khatoon, one finds a
new trend in the Supreme Court. In the case of Maneka Gandhi, the Supreme Court
took the view that the provisions of part III of the constitution should be
given widest possible interpretation. In the case of A.K. Gopalan, the court
took the view that article dealt with separate rights and there was no relation
between one another. They wee mutually exclusive. This view was rejected in the
case of Maneka Gandhi. The constitution. “Their waters must mix to constitute
that grand flow of unimpeded and impartial justice. Isolation of various
aspects of human freedom for purposes of their protection, is neither realistic
nor beneficial but would defeat the objects of such protection”
Doctrine of judicial review
The doctrine
of judicial review was propounded for the first time by Chief justice Marshall
of the Supreme Court of America in Marbury v. Madison. In that case, Chief
justice Marshall held that all those who framed written constitutions
contemplated them as forming the fundamental and paramount law of the nation
and hence the theory of every such Government must be that an Act of
legislature repugnant to the constitution is void and “it is emphatically the
province and duty of the judicial department to say what the law is”.
While the
America constitution did not make any provision for judicial review there is an
express provision for it in the India constitution. In the case of A.K. Gopalan
vs State of Madras, Chief Justice Kania observed thus: “In India it is the
constitution which is Supreme and that a statute law to be valid, must be in
all conformity with the constitutional requirements and it is for the judiciary
to decide whether any enactment is constitutional or not”.
The doctrine of judicial review is a special
characteristic of the Indian constitution. This doctrine means that the courts
have the power to scrutinise laws and executive acts and test their conformity
with the constitution and strike them down if they are found to be inconsistent
with it. Article 13 (2) of the constitution. Article 124 (6) enjoins a judge of
the supreme court to faithfully abide by his oath or affirmation to uphold the
constitution.
It is therefore the duty of the supreme court
to protect the fundamental rights against any encroachment or infringement by the
state. The power of judicial review is necessary in a federal system because
there is the necessity to decide in a dispute between the centre and the units
with regard to the scope of the powers granted to them by the constitution.
The constitution of the United
states does not expressly confer the power of judicial review on the courts.
The Supreme Court of the united states assumed this power to itself. It was
Chief Justice Marshall who emphatically asserted this great power for the first
time in the famous case of Marbury vs Madison1Cranch137:2Led60(1803). It was
held in that case that it was the duty of the Supreme Court to declare a
statute void if it was repugnant to the constitution. The Indian constitution
is unique as it expressly confers the power of judicial review on the Supreme
Court of India and the High Court.
Judicial review is
frequently resented because both the legislatures and the executive assert that
vital questions of public policy ought to be determined not in the cloistered
atmosphere of the Supreme Court or of the High Court but on the floors of the
parliament or state legislatures. There is always the possibility of the abuse
of the power of judicial review and social welfare legislation passed by a
progressive legislature might be set aside as unconstitutional by a
conservative judiciary. In spite of that, the framers of the Indian
constitution provided for judicial review. On the whole, the system has worked
well. The Supreme Court has exercised its power of judicial review with
restraint.
Separation of powers
Unlike the united states, the doctrine of
separation of powers in its rigid form is not to be found in the Indian
constitution. In the united states, all legislative power is “vested” in the
president and the judicial power is “vested” in one Supreme Court and in such
inferior courts as congress may from time to establish.
In a lecture delivered on
August 21, 1976, Sardar Swaran Singh observed: “By inserting the word ‘Socialist’,
it is intended to give a positive direction to the Government in formulating
its policies. The objective of social and economic justice and its fulfilment
are basic to bring about far-reaching socio-economic changes to which we stand
committed. The place of primacy that is now proposed should be given to the
Directive Principle of state policy; our fundamental rights will enable
acceleration of the pace. In his inaugural address delivered at the convention
of constitutional Amendments in New Delhi on October 16, 1976,
In state of
Kerala v. R Jacob Mathew, it was held that Ezhavas, Muslims and Latin catholic
inclusive of Anglo-Indians in the state of Kerala constitute “socially and
educationally backward classes of citizens” within the meaning of Article 15
(4) and reservation of seats for them by the state of Kerala’s order dated June
7, 1963 in the Medical Colleges in the state cannot be considered as a
violation of Article 14 of the constitution
instrumentality or agency of the Government
In R.D.
Shetty v. International Airport Authority of India, the Supreme Court held that
the International Airport Authority of India was a state within the meaning of
Article 12. The Supreme Court laid down the following criteria to determine
whether a corporation was the instrumentality or agency of the Government or
not;
1.
If the entire share capital of the corporation
is held by the Government, it goes a
long way towards indicating that the corporation is an instrumentality or
authority of the Government.
2.
Where the financial assistance of the state is
so much as to meet almost entire expenditure of the corporation, it affords
some indication of the corporation being impregnated with Government character.
3.
Where the corporation enjoys monopoly status
which is state conferred or state protected.
4.
Existence of deep and pervasive state control
may afford an indication that the corporation is a state agency or
instrumentality.
5.
If the functions of the corporation are of
public importance and closely related to Government functions, it is a relevant
factor in classifying a corporation as an instrumentality or agency of
Government.
6.
If a Department of Government is transferred to
a corporation, it is a strong factor supporting the inference that the
corporation is an instrumentality or agency of the Government.
. Secularism
Secularism is
not anti- God or atheism. The state in a free society has to refrain from
interfering with matters which are religious, that is, non- secular matters
except to the extent that such interference is justified on the ground of
public interest interest and the general good. Such a state guarantees
individual and corporate religious freedom and deals with an individual as its
citizen irrespective of his faith and religious belief. The state is not
connected with any particular religion. what we mean by secularism is that we
“have respect for all religious and equal respect for all. Respect for religion
does not depend on the number of the people that follow the religion. All
religions in this country, however small their strength may be, have the same
status and same prestige and same support from the state.” on the same
occasion, Union Law Minister H.R. Gokhale defined the concept of secularism in
these words: “There will be freedom liberty of faith and worship; whatever
religion you belong to, is all what you mean by secularism. All that does mean
is that the state will not have anything to do as a state with any religion
except to treat every religion equally, but the state will not have any foundation
of religion.”
Justice is
essentially an other- regarding virtue. It recognises the independence or
separateness of other individuals. It is concerned with the procedures and
outcome and with consequences of actions and their significance. About social
justice, it is said that every man should stand or fall on his own individual
merit or capacity and should not ask for free help from anybody.
The preamble
secures to all citizens equality of status and opportunity. This is provided by
the prohibition of artificial restrictions on the grounds of religion, race,
sex, colour, place of residence etc. Untouchability has been abolished and its
practice has been made penal. All titles have been abolished. Equality of
opportunity is provided by the guarantor
of law. There is no discrimination in the matter of public employment. The
terms of Article 16 of the constitution are emphatic on this point.
Fraternity
The concept
of fraternity was borrowed from the French constitution. Fraternity means a
sense of common brotherhood of all Indians. It is the reciprocal affection
which inclines man to do unto others as he would that others would do unto him.
It is the principle which gives unity and solidarity to social life. It may be
difficult to achieve, but without it both liberty and equality will be no
deeper than coats of paints. It is necessary to cultivate a feeling of
fraternity among the people if India is to survive as a nation. While dealing
with the duties of man, Mazzini wrote thus:-
“All
privilege is violation of equality. All arbitrary rule is violation of liberty.
Every act of egotism is a violation of fraternity.”
Ambit power
and jurisdiction to issue a writ under Article 226
The writ of certiorari
lies only to remove and adjudicate upon the validity of judicial Acts and the
expression judicial Act may include quasi judicial functions. The same is
issued on the ground of want of jurisdiction or excess of jurisdiction or
failure to exercise jurisdiction, violation of procedure or disregard of
principle of natural justice and error of law apparent on the face of the
record. The writ of prohibition is distinct in as much as it is issued of the
different stage of proceedings. The person against whom proceedings were taken
can move the High Court for binding the interior Court or the tribunal for
continuing the proceedings. Thus the prohibition is for arresting the further
continuance of the proceedings while the writ of certiorari is a writ for
quashing after the authorities have terminated in a final decision. The writ of
mandamus is derived from the Latin word “we command” and the same is issued to
enforce a legal right to compel the respondent to do the performance of some
duty of a public nature created by the provisions of the constitution of a
statute or some rule of common law or restrain from doing something contrary to
it. A writ of mandamus is thus a writ as a rule which is dependant up on the
discretion of the Court to substitute it’s wisdom or discretion for that of the
person to whom the judgement in the mates: a question was entrusted by law. The
writ of quo-warranto is to prevent a person who has wrongfully usurped an
office from continuing in that office and the writ calls upon the under of the
office to show to the Court under what authority he holds the office.
The writ of habeas corpus has been
rightly considered for enforcement to its object of speedy release by judicial
decree of a person or persons who is or illegally restrained and thus it is an
essentially a procedural writ. The distinction is now clear that while the writ
of certiorari may be issued by the High Court requiring that the record of the
proceeding which have been terminated in a final decision is some cause or
matter pending be fore an inferior cause should be transmitted to the superior
Court to be dealt with there while the writ of prohibition is primarily
supervisory and the object of that writ is to restrain the court /tribunal from
exercising a jurisdiction which is not vested with then and to prevent them
from exceeding the units of their jurisdiction. The writ of quo- warrento is issued to have an inquiry as to the legal
authority of a person occupying an office while the habeas corpus is a highly
privileged writ to enforce Fundamental Rights in the Indian personal liberty.
law made void (Article 13)
In article
13, the term “law” includes any ordinance, order, bye- law, rule, regulation,
notification, custom or usage having in the territory of India the force of
law. The term “law in force” includes laws passed or made by a legislature or
other competent authority in the territory of India before the commencement of
the constitution and not previously repealed, notwithstanding that any such law
or any part there of may not be then in operation either at all or in
particular areas. Nothing in Article 13 shall apply to any amendment of the
constitution made under Article 368.
In state of
Madras v. V.G. Row AIR 1952 SC 196. Chief justice Patanjali Sastri wrote: “Our
constitution contains express provisions for judicial review of legislation as
to its conformity with the constitution, unlike in America where the Supreme
Court has assumed extensive powers of reviewing legislative Acts under cover of
the widely interpreted ‘due process’ clause in the Fifth and Fourteenth
Amendments. If then, the courts in this country face up to such important and
none too easy task, it is not out of any desire to tilt at legislative
authority in a crusader’s spirit, but in discharge of duty plainly laid upon them
by the constitution. This is specially true
as regards the fundamental rights as to which this court has been
assigned the role of sentinel on the qui vive”.
In
Kesavananda Bharati v. state of Kerala, (1973) 4 SCC 255: AIR 1973 SC 1461.
Khanna, J. made the following observation: “Judicial review has thus become an
integral part of our constitutional system and a power has been vested in the
High Courts and the Supreme Court to decide about the constitutional validity
of the provisions of the statutes. If the provisions of the statutes are found
to be violative of any Article of the constitution which is the touchstone for
the validity of all laws, the supreme Court and the High Courts are empowered
to strike down the said provisions.” As a matter of fact, the power of judicial
review was held to be one of the basic features of the Indian constitution.
Article 13
(1) cannot be read as obliterating the entire operation of the inconsistent
laws, or to wipe them out altogether from the statute book for to do so will be
to give them retrospective effect which, we have said, they do not possess.
Such laws exist for all past transactions and for enforcing all rights and
liabilities accrued before the date of the constitution. Keshavan Madhav Menon
v. state of Bombay, AIR 1951 SC 128:
In Ramesh
Thappar v. state of Madras, AIR 1957 SC 628: the Supreme Court observed, “Where
a law purports to authorise the imposition of restrictions on a fundamental
right in language wide enough to cover restrictions, both within and without
the limits provided by the constitution.
Where it is not possible to separate the two,
the whole law is to be struck down. So long as the possibility of its being
applied for purposes not sanctioned by the constitution cannot be ruled out, it
must be held to be wholly void.”
The Supreme
Court has laid down the following rules with regard to the doctrine of
severability:
1.
In
deciding whether parts of a statute are separable from the invalid part, it is
the intention of the legislature that is the determining factor. The test to be
applied is whether the legislature would have enacted the valid part if it had
known that the rest of the statute was invalid.
2.
If
the valid and invalid provisions are so inextricably mixed up that they cannot
be separated from one another, the invalidity of a portion must result in the
invalidity of the whole. if after striking out what is invalid, what remains is
in itself a complete code independent of the rest, it will be upheld
notwithstanding that the rest has become unenforceable.
3.
Even
when the provisions which are valid are distinct and separate from those which
are invalid, if, they all form part of a single scheme which is intended to be
operative as a whole, the invalidity of a part will result in the failure of
the whole.
4.
When
the valid and invalid parts of an Act are independent and do not form part of a
scheme but what is left after omitting the invalid portion is so thin and
truncated as to be in substance different from what it was when it emerged out
of the legislature, then also it will be rejected in its entirety.
5.
The
supportability of the valid and invalid provisions of an Act does not depend on
whether the law is enacted in the same section or in different sections. it is
not the form but the substance of the matter that is material and that has to
be ascertained on the relevant provisions therein.
6.
If
after the invalid portion is expunged from the Act what remains cannot be
enforced without making alterations and modifications therein, then the whole
of it must be struck down as void as otherwise it will amount to judicial
legislation.
7.
In
determining the legislative intent on the question of separability, it is
legitimate to take into account the history of the legislation, its object, the
title and the preamble to it.
In Mahendra
Lal Jaini v. state of Uttar Pradesh, AIR 1955 SC 781: the Supreme Court held
that the application of the doctrine of eclipse arises from the inherent
difference between Article 13 (1) and Article 13 (2) arising from the fact that
one is dealing with pre- Constitution laws and the other is dealing with the
post- Constitution laws. In one case the laws being not stillborn, the doctrine
of eclipse will apply. In the other case, the laws being stillborn, there will
be no scope for the application of the doctrine of eclipse.
In Basheshar
Nath v. Commissioner of Income Tax, Delhi. AIR 1959 SC 149. the petitioner
whose case was referred to the income Tax Investigation Commissioner under
Section 5 (1) of the Act was found to have concealed large amounts of income.
He entered into a settlement with the Department and agreed to pay in 1954 Rs 3
lacs in monthly instalments by way of arrears of tax and penalty. In 1955, the
Supreme Court in Muthiah v. Income Tax Commissioner AIR 1956 SC 269. held that
Section 5 (1) was ultra vires of Article 14.
QUASI-JUDICIAL
FUNCTIONS AS DISTINGUISHED FROM JUDICIAL
FUNCTIONS
A Quasi -
judicial function differs from a purely judicial function in the following
respects;
(i)A quasi-judicial authority has some of the
trappings of a court, but not all of them; nevertheless there is an obligation
to act judicially.
(ii)A lis
inter parties is an essential characteristic of a judicial function, but this
may not be true of a quasi-judicial function.
(iii)
A Court is bound by the rules of evidence and procedure
while a quasi- judicial authority is not.
(iv)
A court is bound by precedents, a quasi- judicial
authority is not.
(v)
A court can not
be a Judge in its own cause, while an
administrative authority vested with quasi - judicial powers may be a party to
the controversy but can still decide it.
ADMINISTRATIVE FUNCTIONS
The same are
residue of governmental functions that remain after legislative power and
judicial functions are taken away.
(i)
The
administrative order is generally based on governmental policy or expediency.
(ii)
In
administrative decisions, there is no legal obligation to adopt a judicial
approach to a question to be decided, and the decisions are usually subjective
rather than objective.
(iii)
An administrative authority is not bound by the rules
of evidence and procedure unless the relevant statute specifically imposes such
an obligation.
(iv)
An administrative authority can take a decision in
exercise of a statutory power or even in absence of a statutory provision’
provided such decision or act does not contravene provision of any law.
(v)
Administrative
functions may be delegated and sub -delegated unless there is a specific bar or
prohibition in the statute.
(vi)
While taking the decision, an administrative authority
may not only consider the evidence adduced by the parties to a dispute, but may
also use its discretion.
(vii)
An administrative authority is not always bound by the
principles of natural justice unless the statute casts such duty on the
authority, either expressly or by necessary implication or if it is required to
act judicially or fairly.
(viii)
An administrative order may be held to be invalid on
the ground of unreasonableness.
(ix)
An administrative action will not become a quasi-
judicial action merely because it has to be performed after forming an opinion
as to the existence of any objective fact.
(x)
The prerogative
writs of certiorari and prohibition are not always available against
administrative actions.
However, this
is a very difficult task,” where does is the administrative end and the judicial
begin?
“Duty to act
judicially would, therefore, arise from the very nature of the function
intended to be performed. If there is power to decide and determine to the
prejudice of a person , duty to act judicially is implicit in exercise of such
power. On the whole the test of justifiability has replaced that of
classification of function as a determinant of
the appropriateness of a decision for judicial review.
Extravagance of Public
Finance vis-à-vis curbing the power and
duties of C&AG.
The constitution of India provides that the
Comptroller and Auditor General of India shall be appointed by the President by warrant under his hand
and seal who shall not be removed from Office, except in the like
manner and on the like grounds as a Judge of Supreme Court. The term of
appointment shall be for a period of 5 years and the condition of service and
salary of the Comptroller and Auditor General of India shall be such as may be
determined by Parliament by Law and until they are so determined, shall be as
specified in the second schedule of the
constitution. The Comptroller and Auditor General shall perform such duties and
exercise such powers in relation to the accounts of the union and of the states
and of any other authority or body as may be prescribed or under any law made
by Parliament. The report of the Comptroller and Auditor General relating to
the accounts so maintained of the union
shall be submitted to the President who shall cause them to be laid
before each house of Parliament . The report relating to the accounts of the
states shall be submitted to the Governor who shall cause them to be laid
before the legislature of the states.
That the
present accounting system applicable to most Ministries and departments in
essentially external to Financial management function in that the payment made
by the treasuries and accounts are compiled by audit and accounts offices under
the control of the Comptroller and Auditor General on the basis of initial and
subsidiary accounts received by them from the treasuries. This system worked
fairly well when Governmental business was limited. With the increase ion the
volume and variety of Governmental business
and the continual set-up of developmental outlays, this system has
proved inadequate to the administration task.
The scheme of
separation of accounts from audit was to be implemented in selective ministries
e.g communication, civil aviation, tourism, industries and civil supplies w.e.f
April 1976, where the expansion regarding the
expenditures and its audit was felt to be providing certain constraint
and thereby resulting into the delay in implementation of the schemes at the
relevant time. However by the gradual
increase of the power with these ministries, the similar laxity in relation to
the procedural safeguard was further provided
the other ministries resulting into the defeat of the very purposes for
which the office of the Comptroller and Auditor General was given the power
through checks and balances. The effect of the aforesaid process has resulted in the departmentalisation of union
accounts enacted in 1976 and the transfer of personnel was given effect by the
enforcement of the Act no 59 of 1976 from Indian Audit and Accounts departments
which was earlier under the control of
C.& AG to the newly formed department of Civil Accounts under the Controller General of Accounts under
department of Expenditure ministry of Finance. In this manner the office of
C& AG which was constituted under the
scheme of the constitution of
India to provide the restraint to the expenditure disproportionate from its own
discretion by the relevant ministries was brought under the ministry of Finance
and thereby giving the unbridle powers to the ministers and thereby
overthrowing the constitutional mandate securing the safeguard over the
whimsical expenditure. According to the legal opinion of the constitutional experts, the
diversification of the financial powers
to be utilised by the sole discretion of the bureaucrats without taking into
consideration the Audit objections, which could have been made under the
original constitutional scheme, was directly resulting into the notion of
conferring the absolute power to the respective ministry. This was against the
democratic, federal and republic set-up
of our Constitution. The aforesaid
concept of the parliamentarian democracy, providing the fraternity to an
individual in preamble of the constitution,
was an attack on its basic structure. This has led to an inadequate
financial control which would have been benefited to the nation if such power
were remained with C&AG in India.
That it would
be relevant to point out that the office of the Auditor General of India was
created under the Government Of India Act 1935 for exercising the control over
expenditure incurred by Central And
State Governments and for proper accounting thereof in such forms and in such
manner as may be prescribed by him and he was also responsible for rendering a
complied account of receipt and expenditure to the Centre and State Governments
and he was also required to submit report on the result of Audit in his Audit
report to the Governor- General and
the Governor of the States for laying it before respective legislatures
. That after coming over the constitution of India the Auditor General was designated as Comptroller Audit General
of India under chapter V of the constitution. The state Govt. which lavishly
spends crores on the refreshment
allowances of its ministers, now is facing a crisis that it does not have
enough money in its coffers to deposit the premium of insurance cover for 1
lakh employees of local bodies due for
their group insurance scheme. As a result of this misutilisation of the public
money the insurance scheme of these employees has lapsed and the life insurance
corporation has expressed its inability to consider any future claim as part of
the scheme in case of the death of a employee. The LIC missive state that the
group insurance scheme of some 94.165 local bodies employees stands forfeited due to non deposit of approximately
the premium of Rs 1.83 crores due on it from the last seven months. The LIC
informed that the interest at the rate of 12% would also levied on the amount
due to delay in payment of the premium. It is based on the idea for having LIC’s
Master policy 4912 under its group insurance scheme which was mooted in 1977 by
the state Govt. The Directorate of the local bodies makes a monthly payment of
Rs 21.63 per member to the LIC while a employee make a payment of Rs 20 from
his salary while Rs 1.63 is contributed by the state Govt. each months towards
the policy, for which the LIC shrugs off future claims in case of the policy
holders death where his next kin get Rs 25,000 under the scheme beside the
premium deducted from his salary is also refunded with a 10% interest on the
amount. Similarly an employee on its retirement get a premium deposited by him
back with a 10% interest on the amount from the insurance firm. This is due to
extravagance of public finance and curbing the powers and duties of Comptroller
and Auditor General with effect from the time of enforcement of the Act no 59
of 1976 putting the earlier control of
the C&AG under the Department of Expenditure Ministry of Finance in State
of U.P.
Question& Answer
Question: What do you think whether our judiciary conferred
with the power of judicial review under our constitution has been successful to
deal with the plight of living dead?
Answer :The
constitution is supreme and all the three pillars functions under its strict
supervision . the supremacy of the parliament and the power of the Hon'ble
Constitutional Courts in India have gone through a consistent efforts for
providing a harmonious construction to build up a foundation on which our
country may survive . The doctrine of immunity from legislation against the
enactment through legislation has undergone a great struggle whenever the
Hon'ble Constitutional Court found the infringement of fundamental rights of
the citizen . However on account of excessive burden and the need for securing
the effective exercise of the judicial review by the Hon'ble Constitutional
Courts even with regards to Administrative action , there is an unchecked flow
of litigation for every invasion of the right under the garb of the
infringement of the fundamental rights.
Question:
Whether you speculate in this process any tough battle for securing the basic
structure of our constitution with the doctrine of Supremacy of the parliament
and how far it is important for the healthy growth of our welfare state .
Answer: The
rigours to demotion of judicial writ power by some of the constitutional
amendments like 42nd Amendment has been declared ultra virus in Minerva Mills
Case (1980) 3 S.CC 625 , Waman Rao case (1981) 2 S.C.C 362 and in L. Chandra
Kumar case (1997 ) 3 S.C.C 261 reaffirming the majority verdict of the landmark
judgement of Keshavananda Bharti case of 13 judge constitution bench of the
Hon'ble Supreme Court . The jurisdiction conferred upon the Hon'ble
constitutional Courts including the High Courts under Article 226 and Article
227 has been held as a part of the basic structure of the constitution. Thus
not even the power of legislative enactment but also the power conferred under
Article 368 to Amend the constitution may be subjected to judicial review by
the Apex Court .
Question:
Whether you think that in this process the expression "Procedure
established by Law " as enshrined in Article 21 has now been replaced by
"due process of law" as evident in American Constitution ?
Answer:
Article 14 has two concepts which is a unique feature in Indian constitution.
Most of the constitutions of the world either speaks of "equality before
the law" or the "equal protection of the laws". Both these
concepts although appears to be the same are not actually the same . The
equality before the law refers as to providing the equality before the
substantive laws of the nation as illustrated in Article 15 to 18 and also
under Article 38, 39, 39A, 41and 46 of the constitution . The connotation equal
protection of law contemplates for minimising the inequalities and for
eliminating the inequalities in status , facilities , opportunities , values of
lives with social care towards educational and economic interest not only
amongst citizen but also amongst the group of the citizens. This Article
forbids class legislation except being founded on an intelligible differential
and to have a rational relation to the object sought to be achieved by the
statute in question . The test of classification must be rational . However by
the efflux of time , Article 21 which is couched in negative language by the
framers of our Constitution has undergone the major change by interpretation
through its positive angle having the inhibition contained therein i.e.
"life " as synonymous to "livelihood" by taking into
consideration that by abrogation and subjugation of the means of the living
there shall be no life . This was done to get the rid of the radical innovation
providing an instrument of status quo upholding the traditions of Anglo-Saxon
jurisprudence and resisting radical innovation in the use of judicial power to
promote social change by the so called judicial activism . The other concepts
such as "Rule of Law" , "Judicial restraint" ,
"Separation of power", supremacy of fundamental right s over
directive principles and "Procedure established under Law"
conveniently to avoid change whenever possible through the assistance of two
concepts of Article 14 as whenever required delete it and whenever inevitable
dilute it as far as practicable and thus the discretionary powers were
exercised in the different manner by inviting the diversities in the opinion of
the constitutional Courts while dealing with Quasi judicial actions .
Question :
Thus you mean to say that Article 21 of the constitution is not a fundamental
right of the citizen as is being dealt with by the Hon'ble Supreme Court and
has been included in the chapter of fundamental rights ?
Answer: True
, Article 21 has been included in the chapter of fundamental right under our constitution
but the same is a fundamental duty of the government as to provide protection
against depriving any person of his life or personal liberty . There is only
one individual fundamental right of the citizen i.e Article 19 . Article 25 and
26 is a collective right to the freedom of conscience and right to profess ,
practise and propagate religion and also to manage religious affairs . Thus
every fundamental duty casted upon the government which is providing the
protection to the individual may be read with the reasonable restrictions as
contemplated in sub articles (2)to (6) of Article 19 of our constitution thus
the constitution has provided a "check and balance" over the power of
the Hon'ble Courts and the duties casted upon the government . In this manner
the Hon'ble Courts while interpreting these Articles of fundamental rights may
dealt with the individual as to whether the right which implies the forbearance
to perform the duty by the Government has got the qualification prescribed in
the yard stick of the reasonable restrictions or the constitution with the
galaxy of so called fundamental right may be ruled in respect of its governance
by the political set-up having co-ordination with divisive forces to the
oppression of the people at large which has not been done after independence.
Question:
What was the need of introducing Article 51A when already there were
fundamental duties of the Government ?
Answer: Every
right implies the forbearance on the part of other to perform his duty as right
and duty is correlated and coexistent. After independence our country has been
ruled with governance through laissez faire and the citizens have miserably
forgotten there duties under the spirit of availing an aspirant cherished
freedom . Thus the chapter of unenforceable fundamental duties was introduced
with effect from 3.1.1977 by 42nd amendment .
Question :
Why there is a pendency of number of litigation before the Constitutional
Courts in which the case of the living people who have been declared as dead people
in the official records have not been dealt with in time .?
Answer: The
right of the people has been considered in the different dimension against
every atrocities committed by the administration in discharge of their duty as
the custodian of the public trust . The concept of public trust doctrine was
developed by the Constitutional Courts to provide the safety to an individual
as susceptible to abuse in discharge of the role by our Constitutional courts
as a sentinel on quivive . The maxim of "ubi us ibi remedium" (where
there is a right , there is a remedy ) was sparingly applied in respect of
administrative action without considering as to whether the same is quasi
judicial or not . The separation of power which was embodied to certain extent
in our constitution and having its elasticity to provide pervasive potency and
versatile quality has been diluted in absence of any accountability towards
administrative action. Thus there was a flow of litigation before the
constitutional Courts even in respect of violation of every right for which the
administrative authority were responsible to exercise their power as the
custodian of the public duty .Thus due to paucity of time , the genuine
litigation was circumvented by unscrupulous litigation and there by suppressing
the fundamental right of a bonafide citizen .
Question: Do
you think that the present system can be rectified by enacting more legislation
by the parliament or it may be left to the Constitutional Courts to eradicate
the prevailing maladies ?
Answer There
must be an accountability fixed with every officer and bureaucrats in the
society regarding there abuse of power and judicial review which comprises the
power of judicial superintendence over every sub-ordinate authority may be
necessarily applied by the higher judiciary .There is a requirement of complete
separation of power between three institutions on which our democratic set-up
is dependent the adequate punishment be implemented in the deterrent and
punitive manner as to create an example to the other wrong doer specially under
the circumstances when the integrity and the prosperity of the nation is
involved. In case of malafide exercise of power not only the action which is
done contrary to the object may be rectified but there may be a judicial
scrutiny for recommending the departmental disciplinary proceeding against the
official who has passed such order with extraneous considerations. There should
be the limit over the privilege conferred with every public servant who is not
only a custodian of the power but also owe the duties towards the citizens who
are considered in our constitution as the sovereign of the sovereignty .
Question:
What do you think to be the source of the power of judicial review ?
Answer :It may be traced to the classic enunciation of the principles laid
down by the Chief Justice John Marshall of U.S Supreme Court in Marbury Vs
Madison ( 1 Crunch : 2 L Ed 60 (1803 ) ) as the origin of this power is never
attributed to one source alone . It has been laid down that the judiciary
dealing with interpretation of Law is duty bound while expounding and
interpreting the Law and to see as to whether the Law is repugnant to the
settled norms of the constitutions otherwise the same be declared as void .In
America where the Supreme Court has assumed extensive power of reviewing the
legislative Acts while in our constitution this power is conferred by the
expressed provision contained in Article 13 of the constitution of India . Thus
the power of judicial review has now considered to be an integral part of our
constitutional system .
Question:
What do you think to be the role of the Advocates in the process of judicial
discipline and thereby providing a check and balance over misutilisation of the
judicial and quasi judicial power by the public servant ?
Answer : In America the Lawyers may conduct the
investigation in respect of the wrong committed with the people through their
own investigation agencies and there is there is the power vested with every
officer to deal with the misuse of power by any person without taking the
accent from the higher elechon in the hierarchical set-up of superior authority
in some of the European countries .However in India we have no such power to
fix an accountability towards a public wrong by an Advocate and also by any
honest official as there is a vicious circle in our Bureaucratic set-up where
there is larger privilege and lesser responsibility. Thus we have become a
silent spectator of the situation which is going to be the worst by the process
of time . The apathy of the intellectual echoes back into a vacuum which has
neither any ventilation for providing the fresh air to our people . Till such
time when the intellectuals in the society may not be allowed to run the public
administration nothing can be achieved in our nation.
Wednesday, July 28, 2010
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