Administrative law is a new branch of law that deals with the powers of the Administrative

authorities, the manner in which powers are exercised and the remedies which are available to the
aggreived persons, when those powers are abused by administrative authorities.

The Administrative process has come to stay and it has to be accepted as a necessary evil in all
progressive societies. Particularly in welfare state, where many schemes for the progress of the
society are prepared and administered by the government. The execution and implementation of
these programmes may adversely affect the rights of the citizens. The actual problem is to reconcile
social welfare with rights of the individual subjects. The main object of the study of Administrative
law is to unravel the way in which these Administrative authorities could be kept within their limits
so that the discretionary powers may not be turned into arbitrary powers.

Scope of Administrative Law

There are several branches of the science of law. The Administrative Law is a recent branch of the
science of law. In the political science there are few Administrative organs. Certain functions have
been allotted to these organs in the Administrative Machinery. The Administrative law deals with
the structure, functions and powers of the Administrative organs. It also lays down the methods and
procedures which are to be followed by them during the course of remedies which are available to
the persons whose rights and other privileges are damaged by their operations.

From the few lines above explaining the meaning of the Administrative law, we can notice the exact
scope of this new branch of Law.

The scope of Administrative law can be narrated as under :-

The methods and procedures of these Administrative organs are also studied by this new branch of
law.

It covers the nature of structure, powers and functions of all these administrative organs.

It also makes available all the relevant remedies to the persons whose rights are infringed by the
operations of these organs during the course of Administration.

Why and How the Administrative Organs are to be controlled is also viewed by the Administrative
law.

In this way alongwith the development in the Political Science and alongwith the idea of federal
Administration, the separate branch of Administrative law has been developed. It is to be clearly
noted that this branch of Law is exclusively restricted to the Administrative organs only. The
delegated legislations are supposed to be the backbone of the Administrative law.
An Opinion of Prof. Wade

According to Prof. Wade, The organisation, the methods, the powers (Whether styled
Administrative, legislative or judicial) and the control by the judicial authority of all public authorities
is the ambit of Administrative law in United Kingdom. This is equally true with regard to scope of
Administrative law in India. With the growth of the powers of Administrative authorities the
question as how to control these powers became very relevant. If the finally and exclusive character
of Administrative action is not subjected to judicial control and legislative responsibility it would not
have in the society and that Hewart described "New disposition would prevail over".

An Opinion of Freund

Freund, has brightly summed up in the following words the main concern of the subject :-

The main problem of Administrative law related to the nature and operation of official powers
(permits and orders, ministerial or discritionary scope and legitimacy of underlying conditions), the
formal procedural conditions for the exercise of powers, official and communal liability, the specific
remedies for the Judicial Control of administrative action (legal, equitable and statutory)
jurisdictional limitations of powers and, questions of Administrative finality.

Conclusion

Thus Administrative law can be said to be science of power of Administrative authorities, and the
nature of their powers can be studied under the three heads

Legislative or Rule making,

Purely Executive,

Judicial or Adjudicative

Now the main consideration of Administrative law is the control over the exercise of these powers.
Rule of Law

Origin And Concept Of Rule Of Law

The concept of “Rule of Law" is the building block on which the modern democratic society is
founded. For the successful functioning of the polity it is imperative that there is enforcement of law
and of all contracts based on law. Laws are made for the welfare of the people to maintain harmony
between the conflicting forces in society. One of the prime objects of making laws is to maintain law
and order in society and develop a peaceful environment for the progress of the people. The
concept of Rule of Law plays an important role in this process.

The term “Rule of Law" is derived from the French phrase 'La Principe de Legality' (the principle of
legality) which refers to a government based on principles of law and not of men. [1] In a broader
sense Rule of Law means that Law is supreme and is above every individual. No individual whether if
he is rich, poor, rulers or ruled etc are above law and they should obey it. In a narrower sense the
rule of law implies that government authority may only be exercised in accordance with the written
laws, which were adopted through an established procedure. The principle of Rule of Law is
intended to be a safeguard against arbitrary actions of the government authorities. [2] The rule of
law has been described as a “rare and protean principle of our political tradition". *3+ The rule of law
centrally comprises “the values of regularity and restraint, embodied in the slogan of “‘a government
of laws, not men’". The term Rule of Law does not provide any thing about how the laws are to be
made, or anything specific like the Fundamental Rights or the Directive principles or equality etc. but
it provides for two basic concepts that is Law must be obeyed by the people and that the law must
be made in such a way that it is able to guide the behaviour of its subjects. Different legal theorists
have different approaches towards the concept of Rule of Law. Some believe that the rule of law has
purely formal characteristics, meaning that the law must be publicly declared, with prospective
application, and possess the characteristics of generality, equality, and certainty, but there are no
requirements with regard to the content of the law. While other legal theorists believe that the rule
of law necessarily entails protection of individual rights. Within legal theory, these two approaches
to the rule of law are seen as the two basic alternatives, respectively labeled the formal and
substantive approaches.

ORIGIN OF THE CONCEPT OF RULE OF LAW:

The concept of Rule of Law is very old. In the thirteenth century Bracton, a judge in the reign of
Henry III in a way introduced the concept of Rule of Law without naming it as Rule of Law. He wrote:

"The king himself ought to be subject to God and the law, because law makes him king." [4]

Edward Coke is said to be the originator of concept of Rule of Law when he said that the king must
be under God and law and thus vindicated the supremacy of law over the pretensions of the
executives. [5] In India, the concept of Rule of Law can be traced back to the Upanishad. It provides
that Law is the King of Kings. [6] It is more powerful and higher than the Kings and there is nothing
higher than law. [7] By its powers the weak shall prevail over the strong and justice shall triumph. [8]
But the credit for developing the concept of Rule of Law goes to Professor A.V. Dicey who in his
classic book “Introduction to the Study of the Law of the Constitution" published in the year 1885
tried developing the concept of Rule of Law. As per Diecy no man is punishable or can be lawfully
made to suffer in body or goods except for a distinct breach of law established in the ordinary legal
manner before the ordinary Courts of the land. [9] This establishes the fact that law is absolutely
supreme and it excludes the existence of arbitrariness in any form. According to Diecy where there is
scope discretion there is room for arbitrariness. [10] So Dicey held that every man, whatever be his
rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the
ordinary tribunals. [11]

DICEY'S THEORY of Rule of Law consists of three main principles: [12]

1. Absence of Arbitrary Power or Supremacy of Law: As per Dicey Rule of law means the absolute
supremacy of law and 'no man is punishable or can lawfully be made to suffer in body or goods
except for a distinct breach of law established in the ordinary legal manner before the courts of the
land. Diecy was of the view that all individuals whether if he is a common man or government
authority are bound to obey the law. He is of the view that no man can be punished for any thing
else than a breach of law which is already established. And also that the alleged offence is required
to be proved before the ordinary courts in accordance with ordinary procedure.

2. Equality before Law: As per Diecy Rule of law, in the second principle, means the equality of law or
equal subjection of all classes of people to the ordinary law of the land which is administered by the
ordinary law courts. In this sense rule of law conveys that no man is above the law. Even the
Government Officials are under a duty to obey the same law and there can be no other special
courts for dealing specifically with their matters.

3. Constitution is the result of the ordinary law of the land: As per Diecy , in many countries rights
such as right to personal liberty, freedom, arrest etc are provided by the written Constitution of a
Country. But in England these rights are a result of the judicial decisions that have arisen due to the
conflict between the parties. The constitution is not the source but the consequence of the rights of
the individuals.

But this principle of Diecy is not applicable in India as in India we consider the Constitution to be the
basic ground work of laws from which all other laws are derived.
COMPONENTS OF RULE OF LAW: Rule of Law is a dynamic concept but it is somewhat difficult to
define. Every person has its own way of defining rule of law some think it to be the supremacy of
law; some think it to be the principles like clarity, universality, stability etc. Due to all these reasons
certain ingredients of Rule of Law have been identified and all which need to exsist for the concept
of Rule of Law to survive.

Common ingredients of Rule of Law are:

a government bound by and ruled by law

equality before the law

the establishment of law and order;

the efficient and predictable application of justice; and

the protection of human rights.

RULE OF LAW IN MODERN SENSE: [13]

Today Diecy's theory of rule of law cannot be accepted in its totality. The modern concept of the rule
of law is fairly wide and therefore sets up an ideal for any government to achieve. This concept was
developed by the International Commission of Jurists. Known as Delhi Declaration, 1959 which was
latter on confirmed at logos in 1961. According to this formulation-

"The rule of law implies that the functions of the government in a free society should be so exercised
as to create conditions in which the dignity of man as an individual is upheld. This dignity requires
not only the recognition of certain civil or political rights but also creation of certain political, social,
economical, educational and cultural conditions which are essential to the full development of his
personality".
According to Davis, there are seven principal meanings of the term “Rule of law: (1) law and order;
(2) fixed rules; (3) elimination of discretion; (4) due process of law or fairness; (5) natural law or
observance of the principles of natural justice; (6) preference for judges and ordinary courts of law
to executive authorities and administrative tribunals; and (7) Judicial review of administrative
actions. So finally it may correctly be said that rule of law does not mean and cannot mean any
government under any law. It means the rule by a democratic law-a law which is passed in a
democratically elected parliament after adequate debate and discussion. Likewise, Sir Ivor Jennings
says -

"In proper sense rule of law implies a democratic system, a constitutional government where
criticism of the government is not only permissible but also a positive merit and where parties based
on competing politics or interests are not only allowed but encouraged. Where this exist the other
consequences of rule of law must follow".
“The Separation of Powers” is a doctrine that has exercised the minds of many peoples. Ancient
philosophers, political theories and political scientists, framers of constitutions, judges and academic
writers have all had cause to consider the doctrine through the centuries.

This mainly signifies the division of different powers in between various organs of the state;
executive, legislature and judiciary.

The theory of separation of powers signifies mainly three formulations of Governmental powers;

i. The same person should not form part of more than one of the three organs of the state.

ii. One organ should not interfere with any other organ of the state.

iii. One organ should not exercise the functions assigned to any other organ.

In this project report I am doing the comparative study of this doctrine in various states like USA, UK
and India and dealing with various aspects related to the doctrine of separation of powers and in this
regard I am briefly describing the definitional crisis and then the various advantages and
disadvantages in relation with this doctrine and for better understanding I am giving the present
position in USA, UK and India. In Indian context I am dealing with various constitutional provisions
and also judicial response in the cases related to this doctrine. At the end I am reaching the
conclusion and giving a brief description that in which direction this doctrine is going on. At last I am
framing some opinion and suggestion as per my understanding of this doctrine.

Definitional Crisis:

There is no exact definition of this doctrine because everybody is interpreting it according to his own
views and it is also not possible to find the exact origin but we can see for the first time Aristotle[1]
was saying about the doctrine of separation of powers in his book Politics as follows:

“There are three elements in each constitution in respect of which every serious lawgiver must look
for what is advantageous to it; if these are well arranged, and the differences in constitutions are
bound to correspond to the differences between each of these three elements. The three are, first
the deliberative, which discuss everything of common importance; second the officials…and third
the judicial element.”
In 1689 the English political theorist John Locke[2] also envisaged a three fold classification of
powers in the book The Second Treatise of Government as:

“May be too great a temptation to human frailty…for the same person to have the power of making
laws, to have also in there hands the power to execute them, where by they may exempt themselves
from obedience to laws they make, and suit the law both in its making and execution, to make their
own private advantage.”

Another one who said about this doctrine is Montesquieu[3] who described separation of powers in
his book The Spirit of Laws in 1748 as:

“When legislative power is united with executive power in a single person or in a single body of
magistracy, there is no liberty, because one can fear that the same monarch or senate that makes
tyrannically laws will execute them tyrannically.

Nor there is liberty if the power of judging is not separate from legislative power. If it were joined to
legislative power, the power over the life and liberty of citizen would be arbitrary, for the judge
would be the legislator. If it were joined to the executive power, the judge could have the force of an
oppressor.

All would be lost if the same man or same body of principal men, either of nobles, or of the people,
exercised these three powers: that the making of laws, that of executing public resolutions, and of
judging the crimes or disputes of individuals.”

Advantages:

There are various advantages with the acceptance of this doctrine in the system;

1. The efficiency of the organs of state increased due to separation of works hence time
consumption decreases.

2. Since the experts will handle the matters of their parts so the degree of purity and correctness
increases.

3. There is the division of work and hence division of skill and labour occurs.

4. Due to division of work there is no overlapping remains in the system and hence nobody interfere
with others working area.
5. Since the overlapping removed then there is no possibility of the competition in between different
organs.

Disadvantages:

As there are advantages attached to this doctrine, there are some disadvantages can also occur due
to this doctrine;

1. As I have said there will be increased efficiency but reverse effect can also be seen because of the
overlapping between rights of the organs if we are not following the doctrine in its strict sense
because organs may fight for the supremacy over each other.

2. There is also a possibility of competition between organs again for proving ones supremacy over
the other organ.

3. There is also possibility of delay of process because there will not be any supervisor over other
hence the actions of the organs can become arbitrary.

Position In USA:

The framers of constitution of USA believed that only by allocating the three basic functions of the
government; legislative, executive and judicial, in to three separate, coordinate branches could
power be appropriately dispersed. Thus the US Constitution allocates the three powers in separate
branches. The first three article of their constitution[4], known as the distributive articles, define the
structure and powers of the congress (legislative body), executive and the judiciary.

They were aware of the Montesquieu’s idea about separation of powers and the fact that the new
constitution adopted was based on separation of powers[5]. Yet they were equally aware that in
most states the legislature dominated the executive and judiciary. The system of checks and
balances created by the framers and ensures that Congress can not dominate the executive and
judicial branches of the national government. Moreover, constitutional limitations are not to be
defined entirely independently of majoritarian preferences.

The Supreme Court of US has not been given power to decide political questions, so that the Court
may not interfere with the exercise of powers of the executive branch of the government.

The President of USA interferes with the exercise of the powers by the congress through the exercise
of Veto power. He also exercises the law making with the use of his treaty making power. The
President also interferes with the functioning of the Supreme Court through the exercise of his
power to appoint judges[6].

In the same manner Congress interferes with the powers of the President through vote on budget,
approval of appointments by the senate and the ratification of the treaty. Congress also interferes
with the working of courts by passing procedural laws, creating special courts and by approving the
appointment of judges.

In this turn, the judiciary interferes with the powers of the Congress and the President through the
exercise of its power of judicial review. It is correct to say the SC of USA made more amendments to
US Constitution than the Congress itself.

In brief we can say that the condition in US by the words of CORWIN*7+, “ separation of powers are
more specifically seen in USA but absolute separation of powers does not exists in USA.”

Position In UK:

A separation of powers in the purest form is not and never has been a feature in functioning of the
organs of government in UK[8] and since UK has no written constitution so there is no written
document regarding this matter. An examination of the three powers reveals that in practice, they
are exercised by persons or bodies which exercise more than one such power.

There are too many examples of overlap between three functions of the government. We can see
the several examples as follows[9];

· Law Lords sit on the appellate committee of the House of Lords and the judicial committee of the
Privy Council as well as in the House of Lords as a legislative body;

· Parliament exercises a legislative function and to lesser extent a judicial function is that it is
responsible for the regulation of its own internal affairs;

· Government ministers are member of the executive who exercise a legislative function not only in
Parliament but also in delegate legislation;

· In addition to exercise the judicial function, courts legislate in the sense that they develop
principles of the common law;

· Magistrates exercise administrative as well as judicial functions in that they grant licenses.
Of all instances of overlap, however, it is the position of Lord Chancellor which s most commonly
sited in support of the argument that there is no separation of powers in UK as the office of Lord
Chancellor has existed for many centuries and occupies the unique position as the incumbent is a
member of all three branches of the government with dominating powers in hand. The judiciary is
the weakest among all organs in UK.

The debate as to whether or not there is separation of powers in UK as Professor Munro has noted,
led to the establishment of two opposing camps. In the first of these camps the academic writers of
constitutional law can be placed. The general consensus among them is that there is no separation
of powers. In opposing camp is the judiciary and on numerous occasions the senior judges have
expressed the opinion that the UK’s constitutional practices are based on notion of separation of
powers.

In this sense , therefore it can be said that there is partial separation of powers in UK. But, O. Hood
Phillips and Jackson have said,*10+ “there is not and ever has been a strict separation of powers in
the UK constitution.”

Position In India:

Constitutional Provisions:

There are no separate provisions regarding the Doctrine of Separation of Powers has been given in
our Constitution. But there are some directive principles are given in the constitution as in Part-IV
and Part-V and Articale-50 of our constitution is separating the judiciary from executive as, “the
state shall take steps to separate judiciary from the executive in the public services of the state,”*11+
and except this there is no formal and dogmatic division of powers.

In India, not only functional overlapping is there but also the personal overlapping is prevailing.

Judiciary:

Under Article-142 and Article-145 of our constitution, the SC has the power to declare void the laws
passed by legislature and actions taken by the executive if they violate any provision of the
constitution or the law passed by the legislature in case of executive actions. Even the power to
amend the constitution by Parliament is subject to the scrutiny of the Court. The Court can declare
any amendment void if it changes the basic structure of the constitution.[12] In many cases courts
have issued directions for the Parliament to make policies.

Executive:

The President of India who is the supreme executive authority in India exercise law making power in
the form of ordinance making power under Article-123, also the Judicial powers under Article-103(1)
and Article-217(3), he has the consulting power to the SC of India under Article-143 and also the
pardoning power in Article-72 of the Constitution. The executive also affecting functioning of the
judiciary by making appointments to the office of Chief Justice of India and other judges.

Legislature:

The Council of Minister is selected from the legislature and this Council is responsible for the
legislature. The legislature exercising judicial powers in cases of breach of its privileges,
impeachment of the President under Article-61 and removal of judges. The legislative body has the
punitive powers under Article-105(3).

In words of Gledhill, “constitution of India has not ceremoniously wedded with Doctrine of
Separation of Powers, however, it is whenever possible followed the doctrine of separation of
powers.”

Judicial Response:

There are many cases in which SC has given judgements on basis of the facts related to those cases
but we can understand the position of this doctrine in India by seeing some landmark opinions given
by the Supreme Court in following cases;

In Ram Jawaya v. State of Punjab[13]

C.J. Mukerjee, said and held:

“Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute
rigidity but the functions of the different parts or branches of the government have been sufficiently
differentiated and consequently it can be very well said that our constitution does not contemplate
assumption by one organ or part of the State of Functions that essentially belong to another.”
In Indira Nehru Gandhi v. Raj Narain[14]

C.J. Ray said and held:

“In the Indian constitution there is separation of powers in a broad sense only. A rigid separation of
powers as under the US constitution or as under Australian constitution does not apply to India.”

J. Beg added:

“Separation of powers is the part of the basic structure of constitution. None of the three separate
organs of the republic can take over the functions assigned to the other. This scheme of the
constitution cannot be changed even by restoring to Article-368 of the constitution.”

Conclusion:

Emergence:

From the above discussion we can conclude that though there is a definitional crisis for this doctrine
but every state interpreted the doctrine of separation of powers according to their understanding
and need of the state. There are various advantages the disadvantages present with the doctrine but
it is alive from the time of Aristotle no matter the basic structure is been changed according to the
modern governments. USA is following it in a spirit and known as the champions of the doctrine of
separation of powers along with France. There is never ever this doctrine been followed in UK in its
purest form. In India there is not any clear-cut description of the doctrine in the constitution but we
have followed it whenever is needed and it is been clear on seeing various judgements given by the
Supreme Court.

In brief we can say that the Doctrine of Separation Powers; is followed in US with a spirit, never
followed in UK purely, and India has followed it with large exceptions.

Future Direction:

As we have seen that the doctrine of separation of powers in the classical sense is structural rather
than functional and can not be applied as such in modern times and hence it is changing
continuously according to need of modern governments. And the logic behind this doctrine is still
valid because the logic behind this doctrine is only to avoid absolutism. And hence we can say that
this will run a long way for years and may be further diluted by authorities to fulfill need at that
time.

Opinion:

In my opinion in India judiciary is very powerful and legislature has less scope to interfere in its work,
although legislature has rule making power and directive power for the executives also. Executives
are awarded with powers but that power can not be used due to several complications.

As far as separation of powers is concerned I can suggest following points:

1. Separation of powers must be there as it prevents arbitrariness.

2. Judiciary must be awarded with more powers and the scope of Judicial Review should be
increased.

3. Most of the times the powers of executive are subject to affirmation of legislature, this position
should be improvise because it affects the notion of separation of powers.

4. Separation of powers must be there but there must be some powers with all organs which
enables them to control each other and prevent the possibility of arbitrary use of powers by any
organ i.e. system of check and balance should be improvised.

5. A disadvantage with this system is delay of process due to lack of supervisor must be eradicated
by making changes in law so that time would be saved.
Delegated Legislation

Introduction

The Constitution of Indian empowers Legislature to make laws for the

country. One of the significant legislative functions is to determine a
legislative policy and to frame it as a rule of conduct. Obviously such powers
cannot be conferred on other institutions. But keeping in mind various
multifarious activities of a welfare State, it is not possible for the legislature
to perform all the functions. In such situation, the delegated legislation
comes into the picture. Delegated Legislature is one of the essential elements
of administration whereby the executive has to perform certain legislative
functions. However, one must not forget the risk associated with the process
of delegation. Very often, an overburdened Legislature may unduly exceed
the limits of delegation. It may not lay down any policy; may declare any of
its policy as vague and may set down any guidelines for the executive
thereby conferring wide discretion to the executive to change or modify any
policy framed by it without reserving for itself any control over subordinate
legislation. Therefore, even though Legislature can delegate some of its
functions, it must not lose its control completely over such functions.

Meaning

Delegated legislation (sometimes referred as secondary legislation or

subordinate legislation or subsidiary legislation) is a process by which the
executive authority is given powers by primary legislation to make laws in
order to implement and administer the requirements of that primary
legislation. Such law is the law made by a person or body other than the
legislature but with the legislature’s authority.

Legislation by any statutory authority or local or other body other than the
Legislature but under the authority of the competent legislature is called
Delegated legislation. It is legislation made by a person or body other than
Parliament. Parliament thereby, through primary legislation, enables others
to make law and rules through a process of delegated legislation.
Need For Delegated Legislation

The process of delegated legislation enables the Government to make a law

without having to wait for a new Act of Parliament to be passed. Further,
delegated legislation empowers the authority to modify or alter sanctions
under a given statute or make technical changes relating to law. Delegated
legislation plays a very important role in the process of making of law as
there is more delegated legislation each year than there are Acts of
Parliament. In addition, delegated legislation has the same legal standing as
the Act of Parliament from which it was created.

Delegated Legislation is important because of several reasons. They are-

1. Delegated Legislation reduces the burden of already overburdened

Legislature by enabling the executive to make or alter the law under the
authority of Legislature. Thus, this helps the Legislature to concentrate on
more important matters and frame policies regarding it.
2. It allows the law to be made by those who have the required knowledge and
experience. For instance, a local authority can be permitted to enact laws with
respect to their locality taking into account the local needs instead of making
law across the board which may not suit their particular area.
3. The process of delegated legislation also plays a significant role in an
emergency situation since there is no need to wait for particular Act to be
passed through Parliament to resolve the particular situation.
4. Finally, delegated legislation often covers those situations which have not
been anticipated by the Parliament during the time of enacting legislation,
which makes it flexible and very useful to law-making. Delegated legislation is,
therefore, able to meet the changing needs of society and also situations
which Parliament had not anticipated when they enacted the Act of
Parliament.

Delegated Legislation: Position under Constitution of

India
The Constitution of India gives powers to the Legislature to delegate its
functions to other authorities, to frame the policies to carry out the laws
made by it. In the case of D. S. Gerewal v. State of Punjab[1], the Supreme
Court held that Article 312 of the Constitution of India deals with the powers
of delegated legislation. Justice K.N. Wanchoo observed “There is nothing in
the words of Article 312 which takes away the usual power of delegation,
which ordinarily resides in the legislature.

The phrase “Parliament may by law provide” in Article 312 should not be
interpreted to mean that there is no scope for delegation in law made under
Article312…. The England law enables the Parliament to delegate any amount
of powers without any limitation. On the other hand in America, like India,
the Congress can delegate only some of its functions. Thus, it does not have
unlimited or uncontrolled powers. Thus, India allows for delegated legislation
but in a defined and controlled manner with certain restrictions.

Criticism Of Delegated Legislation

Delegated legislation apart from having many advantages is criticized on

many grounds-

1. It is argued that delegated legislation enables authorities other than

Legislation to make and amend laws thus resulting in overlapping of functions.
2. It against the spirit of democracy as too much-delegated legislation is made by
unelected people.
3. Delegated legislation subject to less Parliamentary scrutiny than primary
legislation. Parliament, therefore, has a lack of control over delegated
legislation, and this can lead to inconsistencies in laws. Delegated legislation,
therefore, has the potential to be used in ways which Parliament had not
anticipated when it conferred the power through the Act of Parliament.
4. Delegated legislation generally suffers from a lack of publicity. Since the law
made by a statutory authority not notified to the public. On the other hand, the
laws of the Parliament are widely publicised. The reason behind the lack of
publicity is the large extent of legislation that is being delegated. There has
 also been concern expressed that too much law is made through delegated
legislation.

Conclusion

In the end we can conclude that the delegated legislation is important in the
wake of the rise in the number of legislations and technicalities involved. But
at the same time with the rise in delegated legislation, the need to control it
also arises because with the increase in the delegation of power also
increases the chance of the abuse of power. The judicial control apart from
the legislative and procedural control is the way how the delegation of power
can be controlled. Thus, the delegated legislation can be questioned on the
grounds of substantive ultra vires and on the ground of the constitutionality
of the parent act and the delegated legislation. The latter can also be
challenged on the ground of its being unreasonable and arbitrary.
Control over Delegated Legislation

With regard to the control of the legislature over delegated legislation,

M.P. Jain states:

In a parliamentary democracy it is the function of the legislature to

legislate. If it seeks to delegate its legislative power to the executive
because of some reasons, it is not only the right of the Legislature, but
also its obligation, as principal, to see how its agent i.e. the Executive
carries out the agency entrusted to it. Since it is the legislature which
grants legislative power to the administration, it is primarily its
responsibility to ensure the proper exercise of delegated legislative
power, to supervise and control the actual exercise of this power, and
ensure the danger of its objectionable, abusive and unwarranted use by
the administration.

In U.S.A., the control of the Congress over delegated legislation is highly

limited because neither is the technique of “laying” extensively used nor
is there any Congressional Committee to scrutinise it. This is due to the
constitutional structurization in that country in which it is considered only
the duty of courts to review the legality of administrative rule-making.

In England, due to the concept of Parliamentary sovereignty, the control

exercised by Parliament over administrative rule-making is very broad
and effective. Parliamentary control mechanism operates through
“laying” techniques because under the provisions of the Statutory
Instruments Act, 1946, all administrative rule-making is subject to the
control of Parliament through the Select Committee on Statutory
Instruments. Parliamentary control in England is most effective because it
is done in a non-political atmosphere and the three-line whip does not
come into operation.

In India parliamentary control of administrative rule-making is implicit as

a normal constitutional function because the executive is responsible to
the Parliament. There are three types of control exercised:

Direct but general control over delegated legislation is exercised:

(a) Through the debate on the act which contains delegation. Members
may discuss anything about delegation including necessity, extent, type of
delegation and the authority to whom power is delegated.

(b) Through questions and notices. Any member can ask questions on any
aspect of delegation of legislative powers and if dissatisfied can give
notice for discussion under Rule 59 of the Procedure and Conduct of
Business in Lok Sabha Rules.

(c) Through moving resolutions and notices in the house. Any member
may move a resolution on motion, if the matter regarding delegation of
power is urgent and immediate, and reply of the government is
unsatisfactory.

Direct special control

This control mechanism is exercised through the technique of “laying” on

the table of the House rules and regulations framed by the administrative
authority. The notable use of this technique was made in the
Reorganization Acts of 1939 to 1969, which authorised the President to
reorganise the executive government by administrative rule-making. In
England the technique of laying is very extensively used because all the
administrative rule-making is subject to the supervision of Parliament
under the Statutory Instruments Act, 1946 which prescribes timetable.
The most common form of provision provides that the delegated
legislation comes into immediate effect but is subject to annulment by an
adverse resolution of either house.

By Section 4 of the Statutory Instruments Act, 1946, where subordinate

legislation is required to be laid before Parliament after being made, a
copy shall be laid before each House before the legislation comes into
operation. However, if it is essential that it should come into operation
before the copies are laid, it may so operate but notification shall be sent
to the Lord Chancellor and the Speaker of the House of Commons
explaining why the copies were not laid beforehand. Under Section 6 of
the Statutory Instruments Act, 1946, the draft of any statutory instrument
should be laid before the parliament.

Laying on Table

In almost all the Commonwealth countries, the procedure of ‘Laying on

the Table’ of the Legislature is followed. It serves two purposes: firstly, it
helps in informing the legislature as to what all rules have been made by
the executive authorities in exercise of delegated legislation, secondly, it
provides a forum to the legislators to question or challenge the rules
made or proposed to be made.

The Select Committee on delegated Legislation summarised the laying

procedure under following heads:
In this type of laying the rules and regulations come into effect as soon as
they are laid. It is simply to inform the House about the rules and
regulations.

Laying with immediate effect but subject to annulment

Here the rules and regulations come into operation as soon as they are
laid before the Parliament. However, they cease to operate when
disapproved by the Parliament.

In this process the rules come into effect as soon as they are laid before
the Parliament, but shall cease to have effect if annulled by a resolution
of the House.

This technique takes two forms: firstly, that the rules shall have no effect
or force unless approved by a resolution of each House of Parliament,
secondly, that the rules shall cease to have effect unless approved by an
affirmative resolution.

Such a provision provides that when any Act contains provision for this
type of laying the draft rules shall be placed on the table of the House and
shall come into force after forty days from the date of laying unless
disapproved before that period.

In this type of laying the instruments or draft rules shall have no effect
unless approved by the House.
In India, there is no statutory provision requiring ‘laying of’ of all
delegated legislation. In the absence of any general law in India regulating
laying procedure, the Scrutiny Committee made the following
suggestions:

(i) All Acts of Parliament should uniformly require that rules be laid on the
table of the House ‘as soon as possible’.

(ii) The laying period should uniformly be thirty days from the date of
final publication of rules; and

(iii) The rule will be subject to such modifications as the House may like to
make.

Legal consequences of non-compliance with the laying provisions

In England the provisions of Section 4(2) of the Statutory Instruments Act,

1946 makes the laying provision mandatory for the validation of statutory
instruments. In India, however, the consequences of non-compliance
with the laying provisions depend on whether the provisions in the
enabling Act are mandatory or directory.

In Narendra Kumar v. Union of India, the Supreme Court held that the
provisions of Section 3(5) of the Essential Commodities Act, 1955, which
provided that the rules framed under the Act must be laid before both
Houses of Parliament, are mandatory, and therefore Clause 4 of the Non-
Ferrous Control Order, 1958 has no effect unless laid before Parliament.

However, in Jan Mohammad v. State of Gujarat, the court deviated from

its previous stand. Section 26(5) of the Bombay Agricultural Produce
Markets Act, 1939 contained a laying provision but the rules framed
under the Act could not be laid before the Provincial legislature in its first
session as there was then no functioning legislature because of World
War II emergency. The rules were placed during the second session. Court
held that the rules remained valid because the legislature did not provide
that the non-laying at its first session would make the rules invalid.

Even if the requirement of laying is only directory and not mandatory, the
rules framed by the administrative authority without conforming to the
requirement of laying would not be permissible if the mode of rule-
making has been violated.

Indirect control is exercised by Parliament through its Committees. With a

view to strengthen Parliamentary control over delegated legislation,
Scrutiny Committees were established. In UK and India, there are
Standing Committees of Parliament to scrutinise delegated legislation. In
the USA, on the other hand, there is no equivalent to such committees,
the responsibility being diffused. The responsibility is shared but a host of
committees – standing committees in each House of Congress,
committees on government operation in each house, and some other
joint bodies like the committee on atomic energy. In England, the Select
Committee on Statutory Instruments was established by the House of
Commons in 1944. In 1950, the Law Minister made a suggestion for the
establishment of a Committee of the House on the pattern of the Select
Committee on Statutory Instruments, 1944, to examine delegated
legislation and bring to the notice of the House whether administrative
rule-making has exceeded the intention of the Parliament or has
departed from it or has affected any fundamental principle.

Such a committee known as the Committee on Subordinate Legislation of

Lok Sabha was appointed on December 1, 1953. The main functions of
the Committee are to examine: (i) whether the rules are in accordance
with the general object of the Act, (ii) whether the rules contain any
matter which could more properly be dealt with in the Act, (iii) whether it
is retrospective, (iv) whether it directly or indirectly bars the jurisdiction
of the court, and questions alike. The Committee has between 1953 and
1961, scrutinized about 5300 orders and rules has submitted 19 reports.

There is also a similar Committee of the Rajya Sabha which was

constituted in 1964. It discharges functions similar to the Lok Sabha
Committee.

The Committee on Subordinate Legislation has made the following

recommendation in order to streamline the process of delegated
legislation in India.

(i) Power of judicial review should not be taken away or curtailed by rules.

(ii) A financial levy or tax should not be imposed by rules.

(iii) Language of the rules should be simple and clear and not complicated
or ambiguous.

(iv) Legislative policy must be formulated by the legislature and laid down
in the statute and power to supply details may be left to the executive,
and can be worked out through the rules made by the administration.

(v) Sub-delegation in very wide language is improper and some

safeguards must be provided before a delegate is allowed to sub-delegate
his authority to another functionary.

(vi) Discriminatory rules should not be framed by the administration.

(vii) Rules should not travel beyond the rule-making power conferred by
the parent Act.
(viii) There should not be inordinate delay in making of rules by the
administration.

(ix) The final authority of interpretation of rules should not be with the
administration.

(x) Sufficient publicity must be given to the statutory rules and orders.

The working of the Committee is on the whole satisfactory and it has

proved to be a fairly effective body in properly examining and effectively
improving upon delegated legislation in India. Sir Cecil Carr aptly remarks:
“It is evidently a vigorous and independent body.”

Therefore, legislature exercises its control over the delegated legislation

or the rule-making power by these two methods: namely, ‘laying’
procedure and via Scrutiny committees. However, to what extent these
two methods are effective in posing a check and control over delegated
legislation, is the question which needs to be taken into consideration.
The effectiveness of parliamentary control over delegated legislation has
been discussed in the next chapter.

The legislative control over administration in parliamentary countries like

India is more theoretical than practical. In reality, the control is not that
effective as it ought to be.

The following factors are responsible for the ineffectiveness of

parliamentary control over delegated legislation in India:

(i) The Parliament has neither time nor expertise to control the
administration which has grown in volume as well as complexity.
(ii) The legislative leadership lies with the executive and it plays a
significant role in formulating policies.

(iii) The very size of the Parliament is too large and unmanageable to be
effective.

(iv) The majority support enjoyed by the executive in the Parliament

reduces the possibility of effective criticism.

(v) The growth of delegated legislation reduced the role of Parliament in

making detailed laws and increased the powers of bureaucracy.

(vi) Parliament’s control is sporadic, general and mostly political in

nature.

(vii) Lack of strong and steady opposition in the Parliament have also
contributed to the ineffectiveness of legislative control over
administration in India.

(viii) There is no automatic machinery for the effective scrutiny on behalf

of the Parliament as a whole; and the quantity and complexity are such
that it is no longer possible to rely on such scrutiny.

In England

In England the technique of laying is very extensively used because the

administrative delegation is subject to the supervision of the parliament
under the Statutory Instruments Act, 1946, which prescribes a timetable.
The most common form of provision provides that the delegated
legislation comes into immediate effect but is subject to annulment by an
adverse resolution of either House.

In U.S.A., the control of the Congress over delegated legislation is highly

limited because neither is the technique of “laying” extensively used nor
is there any Congressional Committee to scrutinize it.
(i) The precise limits of the law-making power which Parliament intends
to confer on a Minister should always be expressly defined in clear
language by the statute which confers it, when discretion is conferred, its
limits should be defined with equal clearness.

(ii) The use of the so-called “Henry VIII Clause” conferring power on a
Minister to modify the provisions of Acts of Parliament should be
abandoned in all but the most exceptional cases, and should not be
permitted by Parliament.

(iii) The “Henry VIII Clause” should never be used except for the sole
purpose of bringing an Act into operation; and should be subject to a time
limit of one year from the passing of the Act.

(iv) The use of clauses designed to exclude the jurisdiction of the Courts
to enquire into the legality of a regulation or order should be abandoned
in all but the most exceptional cases.

(v) Enabling Act should contain express provisions that the rules made
there-under would be subject to such modifications as the House may
like to make.

Conclusion

If in India parliamentary control over delegated legislation is to be made a

living continuity, it is necessary that the role of the committees of the
Parliament must be strengthened and a separate law like the Statutory
Instruments Act, providing for uniform rules of laying and publication,
must be passed. The committee may be supplemented by a specialised
official body to make the vigilance of delegated legislation more effective.
Besides this other measures should be taken to strengthen the control of
Parliament over delegated legislation.
The Parliamentary control over delegated legislation in USA and India is
not as effective as in UK. In UK the laying off procedure is followed
effectively because there all administrative rule-making is subjected to
the control of Parliament through the Select Committee on Statutory
instruments. In India the control is not very much effective. There are no
statutory provisions regarding ‘laying’ of delegated legislation. Though
the working of the Scrutiny committees is not very effective, yet they
have proved to be an effective body in examining and improving upon the
legislative control over delegated legislation.
The Judicial Control over Delegated Legislation in India

Article shared by Shailaja B

Judicial control over delegated legislature can be exercised at the

following two levels:-

1. Delegation may be challenged as unconstitutional; or

2. That the Statutory power has been improperly exercised.

ADVERTISEMENTS:

The delegation can be challenged in the courts of law as being

unconstitutional, excessive or arbitrary.

The scope of permissible delegation is fairly wide. Within the wide limits,
delegation is sustained it does not otherwise; infringe the provisions of
the Constitution. The limitations imposed by the ap-plication of the rule
of ultra vires are quite clear.
Delegated Legislation

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If the Act of the Legislature under which power is delegated, is ultra vires,
the power of the legislature in the delegation can never be good.

ADVERTISEMENTS:

No delegated legislation can be inconsistent with the provisions of the

Fundamental Rights. If the Act violates any Fundamental Rights the rules,
regula-tions and bye-laws framed there under cannot be better.

Where the Act is good, still the rules and regulations may con-travene any
Fundamental Right and have to be struck down.

Besides the constitutional attack, the delegated legislation may also be

challenged as being ultra vires the powers of the administra-tive body
framing the rules and regulations. The validity of the rules may be
assailed as the stage in two ways:—

(i) That they run counter to the provisions of the Act; and

ADVERTISEMENTS:
(ii) That they have been made in excess of the authority delegated by the
Legislature.

The method under these sub-heads for the application of the rule of ultra
vires is described as the method of substantive ultra vires.

Here the substance of rules and regulations is gone into and not the
procedural requirements of the rule marking that may be prescribed in
the statute. The latter is looked into under the procedural ultra vires rule.

When the Court applies the method of substantive ultra vires rule, it
examines the contents of the rules and regulations without probing into
the policy and wisdom of the subject matter. It merely sees if the rules
and regulations in their pith and substance are within the import of the
language and policy of the statute.

The rules ob-viously cannot go against the intent of statute and cannot be
inconsis-tent with the provisions of the Act. They are framed for giving
effect to the provisions of this Act and not for nullifying their effect and
they should not be in excess of the authority delegated to the
rule-making body.

Delegated legislation should not be characterised with an excessive

exercise of discretion by the authority. The rules cannot be attacked to
the general plea of unreasonableness like the bye-laws framed by a local
body. Reasonableness of the rules can be examined only when it is
necessary to do so for purpose of Articles 14 and 19 of the Constitution.

The rule of procedural ultra vires provides with a very limited method of
judicial control of delegated legislation

Often there are specific saving clauses barring the jurisdiction of the
courts to question the validity of rules and orders. For example, Section
16 of the Defence of India Act, 1939 lay down as follows:

“16 Saving as to orders- (1) No order made in exercise of any power

conferred by or under this Act shall be called in question in any Court.

(2) Where an order purports to have been made and signed by any power
conferred by or under this Act, a Court shall, within the meaning of Indian
Evidence Act, 1872, presume that such order was so made by that
authority.”

Such provisions can only be justified—

(i) On the basis of special circumstances of emergency legisla-tion, and

(ii) On the plea of State necessity.

Illustrative cases:
Kruse. v. Johnon- It was laid down that a bye-law would be unreasonable
if it is found to be (i) partial or une-qual i.e. its operation as between
different classes; (ii) manifestly un-just: (iii) disclosing bad faith; and (iv)
involving such oppressive or gratuitous interference with the right of the
people that it could find no justification in the minds of reasonable men.

Delhi Laws Act Case:

In this case the power given to the Central Government to repeal pre-
existing laws was held to be ultravires.

Chintaman Rao’s Case:

(1951 S.C.I 18) Article 13 has a specific impact upon the validity of all the
rules and bye-laws. In Chintaman Rao’s case the notification of a Deputy
Commissioner prohibiting the manufacture of bee dies during the
agriculture season was invalidated on the ground of its violating Article 19
(1) (g).

Chadran v. R. (1952) Alld. 793:

A rule or bye-law must be within the power entrusted to the legislature.

For example an Act of the U.P. State was devised to control the transport
of goods and pas-sengers by ferries and authorised the Commissioner to
make rules for the safety of the passengers and property. But actually the
Commis-sioner forbade the establishment of private ferries within a
distance of two miles from another ferry. That rule was struck down.
The Control of Delegated Legislation by Means of Procedure In India

Article shared by Shailaja B

(a) Prior consultation of interests likely to be affected by proposed

delegated Legislation:

From the citizen’s post of view the most beneficial safeguard against the
dangers of the misuse of delegated Legislation is the development of a
procedure to be followed by the delegates while formulating rules and
regulations.

In England as in America the Legislature while delegating powers abstains

from laying down elaborate procedure to be followed by the delegates.
But cer-tain acts do however provide for the consultation of interested
bodies and sometimes of certain Advisory Committees which must be
con-sulted before the formulation and application of rules and
regulations.

Delegated Legislation

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ADVERTISEMENTS:
This method has largely been developed by the administration
inde-pendent of statutory requirements. The object is to ensure the
par-ticipation of affected interests so as to avoid various possible
hardships.

The method of consultation has the dual merits of provid-ing an

opportunity to the affected interests to present their own case and to
enable the administration to have a first-hand idea of the problems and
conditions of the field in which delegated legislation is being
contemplated.

The method of consultation through correspon-dence has its own limits

and therefore sometimes meetings and con-ferences are held for this
purpose. The practice of consultation has regularity because of the
existence of Advisory Committees of a more or less assumed permanent
nature.

(b) Prior publicity of proposed rules and regulations:

Another method is antecedent publicity of statutory rules to inform those

likely to be affected by the proposed rules and regulations so as to enable
them to make representation for consideration of the rule-making
authority.

ADVERTISEMENTS:
The rules of Publication Act, 1893, S.I provided for the use of this method.
The Act provided that notice of proposed ‘statutory rules’ be given and
the representations of suggestions by interested bodies be considered
and acted upon if proper. But the Statutory Instruments Act, 1946
omitted this practice in spite of the omission, the Committee on Ministers
Powers 1932, emphasised the advantages of such a practice.

(c) Publication of Delegated Legislation:

Adequate publicity of delegated legislation is absolutely necessary to

ensure that law may be ascertained with reasonable certainty by the
affected persons. Further the rules and regulations should not come as a
surprise and should not consequently bring hardships which would
naturally result from such practice.

If the law is not known a person cannot regulate his affairs to avoid a
conflict with them and to avoid losses. The im-portance of this fact is
realised in all countries and legislative enact-ments provide for adequate
publicity.

In England the Statutory Insurances Act, 1946 provides for the publicity of
Statutory Instruments. All the statutory instruments are published by the
Stationary Officer after being laid before the Parlia-ment and contain the
date on which they come into force. S. I (i) provide:

ADVERTISEMENTS:
Where by this Act or any Act passed after the commencement of this Act,
power to make, confirm or approve orders, rules, regulations of other
subordinate legislation is conferred on Her Majesty in Coun-cil or any
Minister or the Crown then, if the power is expressed-

(i) In the case of a power conferred on Her Majesty, to be ex-ercisable by

Order-in-Council;

(ii) In the case of a power conferred on a Minister of the Crown, to be

exercisable by statutory instruments; any document by which that power
is exercised shall be known as a “statutory instrument” and the provisions
of this Act shall apply thereto accordingly.

Accordingly, all rules, regulations and orders and other instru-ments

made by the Sovereign, a Minister and a Government depart-ment of a
legislative character fall within the category of “statutory instruments”.

But there is no obligation. It has been observed by Courts in some cases,

to publish sub-delegated legislation as such in-struments cannot be
considered as a ‘statutory instrument’. (Black- phool Corporation v.
Locker [1948] 1 K.B. 349; Falmouth Beat Construction Co. Ltd. v. Howell
(1950) 2 A.B. 16). Judicial observa-tion, however, must be considered
with caution as in the aforesaid cases the question was not directly
involved.
In case of contravention of a Statutory Instrument, it is a defence that it
had not been issued by the Stationary Officer at the date of the alleged
contravention.

Un-less it is shown by the prosecution that reasonable steps have been

taken or persons likely to be affected by it or of the persons charged, the
defence may be upheld. (Section 3 (2) of the Statutory Instruments Act,
1945. Queen v. Sheer Metal Craft Ltd. [1954] 1 Q.B. 586).

It has been judicially declared that a statutory instrument unlike an Act of

the Parliament did not take effects until it becomes known. These
decisions have, however, given rise to a difficulty, because
ad-ministration have sometimes relied upon immediate enforcement of
certain type of rules, e.g., Price Schedules, Taxing measures and the like.
Role of writs in administrative actions

Now as far as the role of the writs is concerned, let us go by illustration

over the cases on discretion. Conferment of discretionary powers has
been accepted as necessary phenomena of modern administrative and
constitutional machinery. Law making agency legislates the law on any
subject to serve the public interest and while making law, it has become
indispensable to provide for discretionary powers that are subject to
judicial review. The rider is that the Donnie of the discretionary power
has to exercise the discretion in good faith and for the purpose for which
it is granted and subject to limitations prescribed under the Act. The
Courts have retained their jurisdiction to test the Statute on the ground
of reasonableness. Mostly, the courts review on two counts; firstly
whether the statute is substantively valid piece of legislation and,
secondly whether the statute provides procedural safeguards. If these
two tests are not found, the law is declared ultra vires and void of Article
14 of the Constitution.

Beside this, Courts control the discretionary powers of the executive

government being exercised after the statutes have come to exist. Once
they come into existence, it becomes the duty of the Executive
Government to regulate the powers within limitations prescribed to
achieve the object of the Statute. The discretionary powers entrusted to
the different executives of the Government play substantial role in
administrative decision making and immediately the settled principles of
administrative law trap the exercise of powers. If these discretionary
powers are not properly exercised, or there is abuse and misuse of
powers by the executives or they take into account irrelevant
consideration for that they are not entitled to take or simply misdirect
them in applying the proper provision of law, the discretionary exercise of
powers is void. Judicial review is excluded when it is found that
executives maintain the standard of reasonableness in their decisions.
Errors are often crept in either because they would maintain pure
administrative spirit as opposed to judicial flavour or that they influence
their decisions by some irrelevant considerations or that sometimes, the
authorities may themselves misdirect in law or that they may not apply
their mind to the facts and circumstances of the cases. Besides, this
aspect, they may act in derogation of fundamental principles of natural
justice by not conforming to the standard or reasons and justice or that
they do not just truly appreciate the existence or non existence of
circumstances that may entitle them to exercise the discretion.

“The Executive have to reach their decisions by taking into account

relevant considerations. They should not refuse to consider relevant
matter nor should they take into account considerations that are wholly
irrelevant or extraneous. They should not misdirect themselves on a point
of law. Only such a decision will be lawful. The courts have power to see
that the Executive acts lawfully. They cannot avoid scrutiny by courts by
failing to give reasons. If they give reasons and they are not good reasons,
the court can direct them to reconsider the matter in the light of relevant
matters though the propriety adequacy or satisfactory character of these
reasons may not be open to judicial scrutiny. Even if the Executive
considers it inexpedient to exercise their powers they should state their
reasons and there must be material to show that they have considered all
the relevant facts.”

The role of writs is also sensibly laid down in a famous Padfield’s case:

In England in earlier days the Courts usually refused to interfere where

the Government or the concerned officer passed what was called a non-
speaking order, that is, an order which on the face of it did not specify the
reasons for the orders. Where a speaking order was passed the Courts
proceeded to consider whether the reasons given for the order or
decision were relevant reasons. Where there was a non-speaking order
they used to say that it was like the face of the Sphinx in the sense that it
was incurable and therefore hold that they could not consider the
question of the validity of the order. Even in England the Courts have
travelled very far since those days. They no longer find the face of the
Sphinx inscrutable.

# Application of the Writ of Certiorari

The writ of Certiorari is basically issued against the statutory bodies

exercising judicial or quasi judicial powers. Such writ is issued against the
authorities namely the government and the courts or other statutory
bodies who have power to determine and decide the lis between the
parties. In deciding such issues if the decision making order is passed
without any authority or has passed the order in exercise of such
authority or has committed an error of law and facts the high court is
empowered to correct such error of the lower court or government
authorities. Certiorari may apply when the administrative or executive
authority fails to observe their duty to act fairly with respect to the
administrative functions. The writ of Certiorari may also be issued against
a subordinate tribunal even if the decision impugned is pronounced. A
leading case of Ryots of Garabandho v. Zamindar of Parlakimedi, was the
first decision on the writ of Certiorari.

# Application of the Writ of Mandamus

The writ of mandamus is ordered when the statutory authorities who

entrusted with the duties fail to discharge its obligatory duty. It may be
applied when the government authorities vested with absolute powers
fail to perform their administrative and statutory duties. In Ratlam
Municipal Council v. Vardichand, on account of the public nuisance
created in the area by the corporation in not maintaining the drainage
system and the dirty water stinking had clogged around which obviously
created nuisance at the hands of municipality for not discharging the
duties under the act. As a result the residents of Ratlam municipality
moved the Sub-divisional magistrate under section 133 of Code of
Criminal Procedure, 1973 for abatement of nuisance and the court issued
the directions that, “Judicial discretion when facts for its exercise are
present has a mandatory import. Therefore when the Sub-Divisional
Magistrate, Ratlam, has before him information and evidence which
disclose the presence of public nuisance, considers it lawful to remove
such obstruction. This is a public duty implicit in the public power to be
exercised on behalf of the public and is pursuant to public proceeding.”

Lord Denning observed:

“In my opinion every genuine complaint which is worthy of investigation

by the committee of investigation should be referred to that committee.
The Minister is not at liberty to refuse it on grounds which are arbitrary or
capricious. Not because he has a personal antipathy to the compliant or
does not like his political views. Nor on any other irrelevant ground... It is
said that the decision of the Minister is administrative and not judicial.
But that does not mean that he can do as he likes, regardless of right or
wrong. Nor does it mean that the Courts are powerless to correct him.
Good administration requires that complaints should be investigated and
that grievance should be remedied. When parliament has set up
machinery for that very purpose, it is not for the Minister to brush it on
one side. He should not refuse to have a complaint investigated without
good reason...

But it is said that the Minister is not bound to give any reason at all. And
that, if he gives no reason, his refusal cannot be questioned. So why does
it matter if he gives bad reason? I do not agree. This is the only remedy
available to a person aggrieved… Else why did it set up a committee of
investigation? Minister… would at least have good reasons for refusal;
and if asked, he should give them. If he does not do so, the court may
infer that he has no good reasons. If it appears to the Court that the
Minister has been, or must have been, influenced by extraneous
considerations which ought not to have influenced him or, conversely,
has failed, or must have failed, to take into account considerations which
ought to have influenced him. The court has power to interfere; it can
issue a mandamus to compel him to consider the complaint properly.”

# Application of the Writ of Prohibition

The writ of Prohibition is issued essentially against the government or its

authorities when they are not conferred with the power or jurisdiction to
decide the dispute. The court by virtue of this power restrains the
authority to exercise such powers which are not given to the authority.

# Application of the Writ of Quo Warranto

The high Court would exercise the power of Quo Warranto against the
public authority or government who acts contrary to the provisions of the
statute and restrains the authority or public servant from usurping the
public office on account of lack of qualification. It is a means of asserting
sovereign right. In Sonu Sampat v. Jalgaon Borough Municipality , “If the
appointment of an officer is illegal, everyday that he acts in that office, a
fresh cause of action arises and there can be therefore no question of
delay in presenting a petition for quo warranto in which his very, right to
act in such a responsible post has been questioned.”

# Application of the Writ of Habeas Corpus

The writ of Habeas Corpus is a writ issued in order to protect the liberty
and freedom which is conceived to be very vital. It is issued against the
wrongful detention or confinement through the police authority. By
virtue of this writ the police authorities or other such statutory
authorities are empowered to bring the custody of the person who has
been wrongfully detained by the court of law. In the case of State of Bihar
v. Kameshwar Singh it was stated that, the writ of Habeas Corpus is in the
nature of an order for calling upon the person who has detained or
arrested another person to produce the latter before the court, in order
to let court know on what ground he has been confined and to set him
free if there is no legal justification for the imprisonment . One of the
telling ways in which the violation of that right can reasonably be
prevented and due compliance with the mandate of article 21 secured, is
to mulct its violators in the payment of monetary compensation.

Conclusion

The prerogative powers of writ jurisdiction conferred by the constitution

for judicial review of administrative action is undoubtedly discretionary
and yet unbounded in its limits. The discretion however should be
exercised on sound legal principles. In this respect it is important to
emphasis that the absence of arbitrary power is the first essential of the
rule of law upon which the whole constitution system is based. In a
system governed by rule of law when discretion is conferred upon the
executive authorities it must be based on clearly defied limits. Thus the
rule of law from this point of view means that the discretion or the
decision must be based on some principles and rules. In general the
decision should be predictable and citizens should know where he is. If a
decision is taken not on the basis of any principle or rules then such
decision is arbitrary and is taken not in accordance with the rule of law.
The law has reached its finest moments stated Duglas, C.J. in United
States v. Wunderlich when it has freed man from the shackles of
unlimited discretion. The man has suffered on account of absolute
discretion. The decision should be guided by rule of law and it should not
be based on whims, fancy and humour.

The Constitution is the law of the laws and nobody is supreme. Even the
judges of Supreme Court are not above law and they are bound by the
decisions which are the law of the land declared by them under the writ
petitions. Thus, the constitutional remedies provided under the
constitution operate as a check and keeps the administration of
government within the bounds of law.
The Writ of Habeas Corpus meaning literally "You may have the body"

The concept of writ essentially originated in England & to issue

appropriate writ was always considered to be a prerogative of the crown.
One of such important prerogative writs originated in England is known
as the writ of habeas corpus.

The writ of habeas corpus has always been looked upon as an effective
means to ensure release of the detained person from the prison. It must
be emphasized that the primary purpose of the writ is & was to inquire
into the legality of the detention .However, even when writ of habeas
corpus is issued, it does not automatically exonerate the detained person
from liability. It merely ensures his release from the prison and it does
not have any bearing on his guilt or otherwise.

This writ has been frequently used in a number of cases by various courts.
For instance, in Sommersetts case 2, writ of habeas corpus was issued to
secure the release of slaves from an illegal detention. In Ex.P. Daisy
Hopkins 3, writ of habeas corpus was used to release a young lady who
had been detained by the Vice Chancellor of Cambridge University to a
local prison known as the Spinning House for walking in the streets with a
member of the University. Therefore writ of habeas corpus goes a long
way in providing an effective remedy in case of unjustified detention by
the detaining authority.

The Indian judiciary in a catena of cases has effectively resorted to the

writ of habeas corpus mainly in order to secure release of a person from
illegal detention. Personal liberty has always been considered a cherished
value in India & the writ of habeas corpus protects that personal liberty in
case of illegal arrest or detention. As personal liberty is so important, the
judiciary has dispensed with the traditional doctrine of locus standi.
Hence if a detained person is not in a position to file a petition, it can be
moved on his behalf by any other person. The judiciary while going one
step further, has also dispensed with strict rules of pleadings. The
increasing scope of writ of habeas corpus may be explained with the help
of following cases decided by the Indian judiciary.

In Kanu Sanyal v. District Magistrate 4, while enunciating the real scope of

writ of habeas corpus, the Supreme Court opined that while dealing with
a petition for writ of habeas corpus, the court may examine the legality of
the detention without requiring the person detained to be produced
before it.

In Sheela Barse v. State of Maharashtra 5, while relaxing the traditional

doctrine of locus standi, the apex court held that if the detained person is
unable to pray for the writ of habeas corpus, someone else may pray for
such writ on his behalf.

In Nilabati Behera v. State of Orissa 6, the Orissa police took away the son
of the petitioner for the purposes of interrogation & he could not be
traced. During the pendency of the petition, his dead body was found on
railway track The petitioner was awarded compensation of Rs. 1, 50, 000.

In Malkiat Singh v. State of U.P 7, the son of a person was allegedly kept
in illegal custody by the police officers. It was established that the son
was killed in an encounter with the police. The court awarded Rs.
5,00,000 as compensation to the petitioner.

Conclusion: In this manner, writ of habeas corpus has been used

effectively by the judiciary for protecting personal liberty by securing the
release of a person from illegal custody
Analysis Of Writ Of Mandamus

In India Article 32 and 226 of the Constitution gives power to the

Supreme Court and High Court to issue writs in case of breach of
Fundamental rights of any citizen by the state. By such writs the Judiciary
can control the administrative actions and prevent any kind of arbitrary
use of power and discretion.

There are 5 kinds of writs

- Mandamus - Certiorari - Prohibition - Quo warranto - Habeas corpus

A writ of mandamus or mandamus (which means "we command" in

Latin), or sometimes mandate, is the name of one of the prerogative writs
in the common law, and is "issued by a superior court to compel a lower
court or a government officer to perform mandatory or purely ministerial
duties correctly". The word "mandamus" appeared in a number of orders
issued by the sovereigns who ruled England in the live centuries following
the Norman Conquest. These orders however were not concerned with
the grievances of the citizens. The first instance of mandamus being used
for enforcing the fight of a private citizen was in 1615 when it was issued
to a mayor and corporation to restore a burgess to his office unless they
could show cause to the contrary. As no cause was shown, a peremptory
order to restore him to the office was issued.1 By the early eighteenth
century, it was used to compel performance of a variety of public duties
which had been wrongly refused.2 Mandamus lies to enforce a public
duty in the performance of which the petitioner has a sufficient legal
interest, but he must show that he has demanded performance which has
been refused.3 It is discretionary and will not be granted if there is an
alternative remedy equally beneficial, convenient and effective.4
The project covers the judicial control of the administrative actions by
way of mandamus in India and the landmark judgments given by the apex
Court in relation to it. It also elaborates the position of the Doctrine in
U.K.

Definition of Mandamus

Mandamus according to Black's law dictionary, Ninth Edition

"A writ issued by a court to compel performance of a particular act by

lower court or a governmental officer or body, to correct a prior action or
failure to act."

Mandamus according to Wharton's Law Lexicon, 15th Edition, 2009

"A high prerogative writ of a most extensive remedial nature. In form it is

a command issuing in the King's name from the King's Bench Division of
the High Court only, and addressed to any person, corporation, or inferior
court of judicature requiring them to do something therein specified,
which appertains to their office, and which the court holds to be
consonant to right and justice. It is used principally for public purposes,
and to enforce performance of public duties. It enforces, however, some
private rights when they are withheld by public officers."

The order of mandamus is of a most extensive remedial nature, and is in

form, a command issuing from the High Court of Justice, directed to any
person, corporation or inferior tribunal, requiring him or them to do
some particular thing therein specified which appertains to his or their
office and is in nature of a public duty. Mandamus is not a writ of right, it
is not consequently granted of course, but only at the discretion of the
court to whom the application for it is made; and this discretion is not
exercised in favour of the applicant, unless some just and useful purpose
may be answered by the writ. A writ of mandamus or remedy is pre -
eminently a public law remedy and is not generally available against
private wrongs. It is used for enforcement of various rights of the public
or to compel the public statutory authorities to discharge their duties and
to act within the bounds. It may be used to do justice when there is
wrongful exercise of power or a refusal to perform duties5.

Mandamus in Indian Law prior to the Constitution

Mandamus was introduced in India by the Letters Patent creating the

Supreme Court in Calcutta in 1773. The Supreme Courts in the Presidency
towns were empowered to issue the writ. In 1877, the Specific Relief Act
substituted an order in the nature of mandamus in the place of the writ
of mandamus for the purpose of "requiring any specific act to be done or
forborne within the local limits of its ordinary civil jurisdiction by any
person holding a public office.6

Under the Specific Relief Act, 1963, which replaced the earlier Act, this
provision has been omitted. This omission must have been because such
a provision under the Specific Relief Act became redundant since the
Constitution of India contains a similar and more efficacious provision for
the enforcement of public duties. The Constitution empowered all High
Courts to issue directions, orders or writs including writs in the nature of
mandamus for the enforcement of any of the rights conferred by Part III
and for any other purpose.7 The Supreme Court can also issue mandamus
for the enforcement of fundamental rights.8

Framework of law in relation to mandamus

The Supreme Court has the power to issue writs under the Constitution of
India, art. 329. The Supreme Court has the power to issue directions or
orders or writs, including writs in the nature of habeas corpus,
mandamus, certiorari, prohibition and quo warranto, whichever may be
appropriate for the enforcement of any right conferred by this part. It is
an important part of the constitution. Art. 32 guarantee to every person
the right to move the Supreme Court directly for enforcement of
fundamental rights. It provides an inexpensive and expeditious remedy.
In Ambedkar's memorable words: 'If I was asked to name any particular
Article in the Constitution as the most important - an Article without
which this Constitution would be a nullity- I could not refer to any other
Article except this one. It is the very soul of the Constitution and the very
heart of it'13. This provision states that there must be a clear breach of
fundamental right not involving disputed questions of fact. It also states
that government policy may not be enforced by writ under the article.
With regard to mandamus, art. 32 states that it may be issued where a
fundamental right is infringed by a statute. It may be a statutory order or
an executive order. However, according to some decisions it is
discretionary10. The aforesaid provision also mentions continuing
mandamus where a mere issue of mandamus would be futile against a
public agency guilty of continuous inertia and thus continuing mandamus'
may be issued. This continuous mandamus has become the most
commonly issued mandamus. Although the framework of law clearly
states where a mandamus may be issued, the courts have not found it
easy in many cases whether to issue a mandamus and it has become an
important question of law.

Interpretation of Public right and mandamus

Mandamus lies against authorities whose duty is to perform certain acts

and they have failed to do so. Under following circumstances mandamus
can be issued :
(i) The applicant must have a legal right to the performance of a legal
duty11. It will not issue where to do or not to do an act is left to the
discretion of the authority12. It was refused where the legal duty arose
from an agreement which was in dispute13. The duty to be enforced by a
writ mandamus could arise by a provision of the Constitution14 or of a
statute15 or of the common law16.

(ii) The legal duty must be of a public nature. In The Praga Tools
Corporation v. C.V. Imanual, A.l.R. 1969 S.C. 1306 and Sohanlal v. Union
of India, A.I.R. 1957 S.C. 529: (1957) S.C.R. 738 the Supreme Court stated
that mandamus might under certain circumstances lie against a private
individual if it is established that he has colluded with a public authority.

It will not issue against a private individual to enforce a private right such
as a contract17.Even though mandamus does not lie to enforce a contract
inter partes, it will lie where the petitioner's contractual right with a third
party is interfered with by the State18. Mandamus will not issue to
enforce departmental manuals or instructions not having any statutory
force which do not give rise to any legal right in favour of the petitioner
as in the cases of Raman & Ramanv. State of Madras, A.l.R. 1959 S.C. 694;
State of Assam v. Ajit Kumar, A.l.R. 1965 S.C. 1196.

However if the authority were under law obliged to exercise discretion,

mandamus would lie to exercise it in one way or the other. Mandamus
can be issued to compel an income-tax officer to carry out the
instructions issued by income-tax appellate tribunal exercising its
appellate power19. Again it can be issued to a municipality to discharge
its statutory duty20.
There are however exceptions to this rule. Where there is no statutory
provision, executive instructions fill in the gap and are capable of
conferring rights on the citizen imposing obligations on the authorities. In
appropriate cases the courts may even compel the performance of such a
duty21. Mandamus is not available where the order upon which the
alleged right of the petitioner is founded is itself ultra vires22. Similarly it
was held that the grant of dearness allowance at a particular rate is a
matter of grace and not a matter of right and hence mandamus cannot
issue to compel the Government to pay dearness allowance at a
particular rate.23 Article 320 (3) of the Constitution which provides that
before a government servant is dismissed, the Union Public Service
Commission should be consulted, does not confer any right on a public
servant and hence failure to consult the Public Service Commission does
not entitle the public servant to get mandamus for compelling the
government to consult the Commission24. Where provisions are merely
directory, non-compliance with them does not render an act invalid and
hence no mandamus issues.

(iii) The right sought to be enforced must be subsisting on the date of the
petition. If the interest of the petitioner has been lawfully terminated
before that date, he is not entitled to the writ25.

(iv) As a general rule, mandamus is not issued in anticipation of injury.

There are exceptions to this rule. Anybody who is likely to be affected by
the order of a public officer is entitled to bring an application for
mandamus if the officer acts in contravention of his statutory duty26.
Thus an intending bidder at an auction is entitled to apply if the authority
holding the auction acts contrary to the statute under which the auction
is held or fails to perform his statutory duties in connection with the
auction27. A person against whom an illegal or unconstitutional order is
made is entitled to apply to the court for redress even before such order
is actually enforced against him or even before something to his
detriment is done in pursuance of the order. For, the issue of such order
constitutes an immediate encroachment on his rights and he can refuse
to comply with it only at his peril28.

Against whom Mandamus will not issue

In England, mandamus does not lie upon the Crown. In India, it will not lie
upon the President and the Governor of a State in their personal
capacities29. However, the Constitution expressly provides that
appropriate proceedings may be brought against the Government of India
and the Government of a State30. Further the Constitution empowers the
courts "to issue to any person or authority, including in appropriate cases
any Government" any of the writs mentioned there in.31 Mandamus is
therefore issued against the government32.

No mandamus will lie against an officer or member of parliament or an

officer or member of the legislature of a State In whom powers are
vested by or under the Constitution for regulating procedure or the
conduct of business or for maintaining order in Parliament or the State
legislature.33 Mandamus will not issue to a legislature to forbid it from
passing legislation repugnant to the fundamental rights34. Mandamus
was issued to a municipality to forbid collection of a tax ultra vires the
Municipalities Act,35 to a University directing it to forbear from giving
effect to an order made in violation of its own rules36. Article 329 of the
Constitution precludes any law courts from entertaining electoral matters
such as the validity any law relating to the delimitation of constituencies
or the allotment of seats to such constituencies, made or purporting to
beside underarticle327 or article 328 and provides that no election to
either House of Parliament or to the House or either House of the
legislature of a State shall be questioned except by an election petition
presented as provided by Parliament. Election includes everything from
the issue of the notification to the announcement of the result. It is not
therefore possible to obtain mandamus against officials conducting the
various stages of an election, ft was refused against a returning officer
who rejected a nomination paper37. This ban however applies only in
respect of elections to Parliament and State legislatures. Mandamus was
issued upon the Deputy Commissioner compelling him to hold municipal
elections within a month and a half38.

Mandamus lies to secure the performance of a public duty. If the

petitioner has sufficient legal interest in the performance it will issue
even if the body against which it is claimed is not a statutory body. Thus it
was issued against the Sanskrit Council; which was constituted by a
resolution of the state government to. compel it to hold the examination
and publish the results39. However, it will not lie to secure performance
by a company of a duty towards its employees which is not of a public
nature.40

Alternative Remedy: A Bar to Mandamus

Mandamus is not refused on the ground that there is an adequate

alternate remedy where the petitioner complains that his fundamental
right is infringed41. The courts are duty bound to protect the
fundamental rights and therefore mandamus is issued. It is only when
mandamus is issued "for any other purpose" that the existence of an
alternate remedy bars its issuance42.Mandamus will not, however, be
refused when ordinary civil proceedings or administrative appeals or
revision do not provide an equally effective and convenient remedy. Thus
if the alternative remedy imposes a heavy financial burden on the
petitioner, it will not be regarded as a ground for refusing mandamus43.
Demand and refusal

For the issue of mandamus against an administrative authority the

affected individual must demand justice and only on refusal he has right
to approach the Court. In S.I. Syndicate v. Union of India44, the Supreme
Court has adopted the following statement of law in this regard. :

"As a general rule the orders would not be granted unless the party
complained of has known what it was he was required to do, so that he
had the means of considering whether or not he should comply, and it
must be shown by evidence that there was a distinct demand of that
which the party seeking the mandamus desires to enforce, and that the
demand was met by a refusal."

Thus, a party seeking mandamus must show that the demand justice
from the authority concerned by performing his duty and that the
demand was refused. In S.I.Syndicate the court refused to grant
mandamus as there was no such demand or refusal. Where a civil servant
approached the court for mandamus against wrongful denial of
promotion, he was denied the relief because of his failure to make
representation to the government against injustice45. The demand for
justice is not a matter of form but a matter of substance and it is
necessary that a "proper and sufficient matter has to be made"46. The
demand must be made to the proper authority and not to an authority
which is not in a position to perform its duty in manner demanded. It is
suggested that the court should not fossilize this rule into something rigid
and inflexible but keep it as flexible. As Wade suggests, "these formalities
are usually fulfilled by the conduct of the parties prior to the application,
and refusal to perform the duty is readily from conduct". Demand may
also not be necessary "where it is obvious that the respondent would not
comply with it and therefore it would be but an ideal formality."

UK perspective

The writ of mandamus is commonly used as weapon by the ordinary

civilian when public authority fails to do its duty. Mandamus is used to
enforce performance of many duties which directly affect the individual.
Mandamus can be issued where there is duty to exercise discretion, such
a duty of the tribunal to hear and determine a case within its jurisdiction.

Section 10 of the Tribunals & enquiries Act, 1992, imposes a duty on

tribunal to give reasons for its decisions. Such a duty may be enforced by
issuance of writ of mandamus.

A writ of mandamus is not being granted where law provides some other
adequate remedy. However mandamus has lost the character of residual
remedy. Section 40 (5) of the Crown Proceedings Act, 1947, already
provides that introduction of a new remedy of the Act shall not limit the
discretion of court to grant the mandamus.

Conclusion

Hence the writ of mandamus is to protect the interest of the public from
the powers given to them to affect the rights and liabilities of the people.
This writ makes sure that the power or the duties are not misused by the
executive or administration and are duly fulfilled. It safeguards the public
from the misuse of authority by the administrative bodies.
Although there are certain conditions also which were discussed in the
project like all the alternative remedies should be exhausted and it should
be a statutory duty and not discretionary in nature. Hence it forms one of
basic tool in the hands of the common people against the administrative
bodies if they do not fulfil the duties which by statutes they are bound to
perform.

important writes of India are: 1. Habeas Corpus 2. Mandamus

3.Prohibition 4. Certiorari 5. Quo Warranto!

1. Habeas Corpus:

A writ of habeas corpus is in the nature of an order calling upon the

person who has detained another, to produce the latter before the Court
in order to let the Court know on what ground she/ he has been confined
and to set him/her free if there is no legal justification for the
imprisonment.

ADVERTISEMENTS:

The words ‘habeas corpus’ literally mean ‘you may have the body’. The
writ may be addressed to any person whatever, an official or a private
person who has another person in his custody and disobedience to the
writ is met with punishment for the contempt of the court.
The different purposes for which the writ of habeas corpus can be issued
are: (a) for the enforcement of fundamental rights, (b) to decide whether
the order of imprisonment or detention is ultra vires the statute that
authorises the imprisonment or detention.

The writ of habeas corpus is, however, not issued in the following cases:

(i) Where the person against whom the writ is issued or the person who is
detained is not within the jurisdiction of the Court, (ii) To secure the
release of a person who has been imprisoned by a court of law on a
criminal charge, (iii) To interfere with a proceeding for contempt by a
court of record or by the Parliament.

2. Mandamus:

Mandamus literally means ‘we command.’ It commands the person, to

whom it is addressed to perform some public or quasi-public legal duty
which she/he has refused to perform and the performance of which
cannot be enforced by any other adequate legal remedy.

ADVERTISEMENTS:

It is, therefore, clear that mandamus will not be issued unless the
applicant has a legal right for the performance of that particular legal
duty of a public nature and the party against whom the writ is sought, is
bound to perform that duty.

The purposes for which a writ may be issued are as:

(a) For the enforcement of fundamental rights. Whenever a public officer

or a Government has acted in a manner violating the Fundamental Right
of a person, the court would issue a writ of mandamus restraining the
public officer or the Government from enforcing that order or acting
against the person whose fundamental right has been infringed,

ADVERTISEMENTS:

(b) Mandamus can be issued by a High Court for various other purposes,
e.g.,

(i) To enforce the performance of a statutory duty where in a public

officer has got a power conferred by the Constitution or a statute. The
Court may issue a mandamus directing him/her to exercise the power in
case she/he refuses to do so.

(ii) To compel a person to perform his public duty where the duty is
imposed by the Constitution or a statute or a statutory instrument,
(iii) To compel a court or judicial tribunal to exercise its jurisdiction when
it has refused to exercise it.

ADVERTISEMENTS:

(iv) To direct a public official or the Government, not to enforce a law that
is unconstitutional.

3. Prohibition:

The writ of prohibition is a writ issued by the Supreme Court or a High

Court to an inferior court forbidding the latter to continue proceedings
therein in excess of its jurisdiction or to usurp a jurisdiction with which, it
is legally not vested.

The writ of prohibition differs from the writ of mandamus in the sense
that while mandamus commands activity, prohibition commands
inactivity. Further, while mandamus is available not only against judicial
authorities but also against administrative authorities, prohibition as well
as certiorari are issued only against judicial or quasi- judicial authorities.

4. Certiorari:
The literal meaning of the word ‘certiorari’ is “to be more fully informed
of”. Though prohibition and certiorari are both issued against Courts or
tribunals exercising judicial or quasi-judicial powers, certiorari is issued to
quash the order or decision of the tribunal while prohibition is issued to
prohibit the tribunal from an ultra vires order or decision.

While prohibition is available at an earlier stage, certiorari is available at a

later stage, on similar grounds. The object of both is to secure that the
jurisdiction of an inferior court or tribunal is properly exercised and to see
that it does not usurp the jurisdiction for which it does not possess an
authority.

5. Quo Warranto:

Quo warranto is a proceeding whereby the court enquires into the

legality of the claim which a party asserts to a public office, and to oust
him/her from its enjoyment if the claim is found to be fake or invalid.

The conditions necessary for the issue of a writ of quo warranto are as
follows:

(i) The office must be public and it must be created by statute or by the
Constitution itself;

(ii) The office must be a substantive one and not merely the function or
employment of a servant at the will and during the pleasure of another.
(iii) There has been a contravention of the Constitution or a statute or
statutory instrument, in appointing such a person to that office.

The fundamental basis of the proceeding of quo warranto is that the

public has an interest to see that an unlawful claimant does not usurp a
public office. It is, however, a discretionary remedy that the court may
grant or refuse according to the facts, and circumstances in each case.
Quo warranto is thus a very powerful instrument for safeguarding against
the usurpation of public offices.
Importance of Public Interest Litigation in India

August 8, 2014 by admin Leave a Comment

By Nikhil Jain, ITMU Law School, Gurgaon

Editor’s Note: The ever-encompassing and ever-expanding concept of this

oft-heard term Public Interest Litigation has perplexed legal minds for
decades. Various luminaries have tried to capsule the concept into a
precise definition. However, all such efforts have failed. This paper delves
into various landmark judgments delivered by the Supreme Court of India
to better understand this nebulous concept.

By studying the practice of the Courts of India, the concept of PIL in India
has been a marked departure from its American counterpart. In India, it
has given voices to many, especially the poor and underprivileged, and
has helped them establish their Fundamental Rights and various other
legal rights governed by the laws of the country.

By relaxing the requirements of locus standi, and permitting any person

who has sufficient interest in a matter to file a suit, the concept of PIL as
developed by the Supreme Court of India has added breath and life to the
Constitution and transformed it into a living document for Indians. This
paper focuses on the contribution of the Emergency Period which, in fact,
helped guarantee a greater number of rights to Citizens of India in its
aftermath when various questions of law were brought up before the
Courts for their interpretation.

WHAT IS PUBLIC INTEREST LITIGATION?

It may be easy to know when such litigation is presented. Yet defining it
has taxed judicial minds. Some say it is a ‘nebulous concept’ and is
beyond definition. Others try to define it by delineating its characteristic
features. A Judge in Australia identifies it by the public character to which
the litigation relates evidenced by: properly bringing proceedings to
advance a public interest; that proceedings contribute to the proper
understanding of the law in question; and have involved no private gain.
[1]

The effect of this decision is really the crucial determining factor.

Whether the action is brought by a singular individual or an organization
or as a class action, or even where the remedy sought may benefit the
applicant directly, the litigation may yet be in the public interest if the
impact of the decision will serve the wider public interest.

As Lord Diplock said in the English House of Lords:

“There would be a grave lacuna in our system of public law if a pressure

group, like the Federation, of even a single public spirited tax-payer, were
prevented by out-dated technical rules of locus standi from bringing the
matter to the attention of the court to vindicate the rule of law and get
unlawful conduct stopped.” *2+

This dictum was adopted in Malaysia in the leading public interest

litigation case, Mohamed bin Ismail v Tan Sri Haji Othman Saat in these
terms:
“… if they (public authorities) transgress any law or constitutional
directive, then any public- spirited citizen, even if he has no greater
interest than a person having regard for the due observation of the law,
may move the courts and the courts may grant him the appropriate legal
remedy in its discretion” *3+

TECHNICAL DEFINITION OF PIL [4]

The term Public Interest Litigation (PIL) is composed of two words; ‘Public
Interest’ and ‘Litigation’.

The words ‘Public Interest’ mean “an expression which indicates

something in which the general public or the community at large has
some pecuniary interest, or some interest by which their legal rights or
liabilities are affected.” The word ‘litigation’ on the other hand means “a
legal action, including all legal proceedings initiated in a Court of Law with
the purpose of enforcing a right or seeking a remedy.” *5+

Hence, lexically the expression ‘Public Interest Litigation’ denotes a legal

action initiated in a court of law for the enforcement of public interest
where the rights of an individual or a group have been affected.

PIL IN INDIA

The concept of Public Interest Litigation first emerged in USA. The

American concept of PIL is clarified by a statement made by “The Council
for Public Interest Law” an organisation setup by the “Ford Foundation”
in USA, “Public Interest Law is the name that has been given to efforts to
provide legal representations to previously unrepresented groups and
interests. Such groups and interest include the poor, environmentalists,
consumers, racial and ethnic minorities, and others.”

However PIL in India substantially differs from that in the USA. Prof:
Upendra Baxi in his published opinion “Social Action Litigation in the
Supreme Court of India” has pointed out that the prime focus of
American PIL was not so much on state repression or governmental
lawlessness as on public participation in governmental decision making.
And since the Indian notion of PIL has assumed the character of more of a
moral and humane process in providing justice to the victim as in
individual or to a group in matters relating to infringement of
fundamental rights or denial of civil privileges on the basis of caste, color
or creed, Prof. Baxi, therefore, insisted that the Indian phenomenon
described as PIL should be termed as “Social Action Litigation.”

CONCEPT OF PIL

According to the jurisprudence of Article 32 of the Constitution of India,

“The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this part is guaranteed.”
Ordinarily, only the aggrieved party has the right to seek redress under
Article 32.

In 1981, Justice P. N. Bhagwati, articulated the concept of PIL as follows,

“Where a legal wrong or a legal injury is caused to a person or to a
determinate class of persons by reason of violation of any constitutional
or legal right or any burden is imposed in contravention of any
constitutional or legal provision or without authority of law or any such
legal wrong or legal injury or illegal burden is threatened and such person
or determinate class of persons by reasons of poverty, helplessness or
disability or socially or economically disadvantaged position unable to
approach the court for relief, any member of public can maintain an
application for an appropriate direction, order or writ in the High Court
under Article 226 and in case any breach of fundamental rights of such
persons or determinate class of persons, in this court under Article 32
seeking judicial redress for the legal wrong or legal injury caused to such
person or determinate class of persons.” *7+

The rules of locus standi have been relaxed and a person acting in a
bonafide manner and having sufficient interest in the proceedings of an
Public Interest Litigation will alone have the requisite locus standi and can
approach the Courts to wipe out any violation of fundamental rights and
genuine infraction of statutory provisions, but not for personal gain, or
private profit, or political motive, or any oblique consideration. [8]

The Supreme Court of India, in a case has iterated that “In an appropriate
case, where the petitioner might have moved a court in her private
interest and for redressal of the personal grievance, the court in
furtherance of Public Interest may treat it a necessity to enquire into the
state of affairs of the subject of litigation in the interest of justice. Thus a
private interest case can also be treated as public interest case.” *9+

In Guruvayur Devaswom Managing Commit. And Anr. Vs. C.K. Rajan and
Ors, *J.T. 2003 (7) S.C. 312+, the Supreme Court held, “The Courts
exercising their power of judicial review found to its dismay that the
poorest of the poor, depraved, the illiterate, the urban and rural
unorganized labour sector, women, children, handicapped by ‘ignorance,
indigence and illiteracy’ and other down trodden have either no access to
justice or had been denied justice. A new branch of proceedings known as
‘Social Interest Litigation’ or ‘Public Interest Litigation’ was evolved with a
view to render complete justice to the aforementioned classes of
persona. It expanded its wings in course of time. The Courts in pro bono
publico granted relief to the inmates of the prisons, provided legal aid,
directed speedy trial, maintenance of human dignity and covered several
other areas. Representative actions, pro bono publico and test litigations
were entertained in keeping with the current accent on justice to the
common man and a necessary disincentive to those who wish to bypass
the real issues on the merits by suspect reliance on peripheral procedural
shortcomings… Pro bono publico constituted a significant state in the
present day judicial system. They, however, provided the dockets with
much greater responsibility for rendering the concept of justice available
to the disadvantaged sections of the society. Public interest litigation has
come to stay and its necessity cannot be overemphasized. The courts
evolved a jurisprudence of compassion. Procedural propriety was to
move over giving place to substantive concerns of the deprivation of
rights. The rule of locus standi was diluted. The Court in place of
disinterested and dispassionate adjudicator became active participant in
the dispensation of justice.”

EVOLUTION OF PIL [10]

Prior to the 1980s, only the aggrieved party could approach the courts for
justice. However, post 1980s and after the emergency era, the apex court
decided to reach out to the people and hence it devised an innovative
way wherein a person or a civil society group could approach the
Supreme Court seeking legal remedies in cases where public interest is at
stake. And thus Public Interest Litigation was formed.
The Indian PIL is an improved version of PIL of USA. “Public interest law is
the name that has recently been given to efforts that provide legal
representation to previously unrepresented groups and interests. Such
efforts have been undertaken in the recognition that ordinary
marketplace for legal services fails to provide such services to significant
segments of the population and to significant interests. Such groups and
interests include the proper environmentalists, consumers, racial and
ethnic minorities and others.” *11+

The emergency period (1975-1977) witnessed a somewhat colonial

nature of the Indian legal system. During the period of emergency, state
repression and governmental lawlessness was widespread. Thousands of
innocent people including political opponents were sent to jails and there
was complete deprivation of civil and political rights. The post emergency
period provided an occasion for the judges of the Supreme Court to
openly disregard the impediments of Anglo-Saxon procedure in providing
access to justice to the poor.

Notably, two Justices of the Supreme Court, Justice V. R. Krishna Iyer and
P. N. Bhagwati recognized the possibility of providing access to justice to
the poor and exploited people by relaxing the rules of standing. In the
post-emergency period, when the political situations had changed,
investigative journalism also began to expose gory scenes of
governmental lawlessness, repression, custodial violence, drawing
attention of lawyers, judges, and social activists. PIL emerged as a result
of an informal nexus of pro-active judges, media persons and social
activists. This trend showed a stark difference between the traditional
justice delivery system and the modern informal justice system where the
judiciary is performing an administrative judicial role. PIL is a necessary
rejection of laissez faire notions of traditional jurisprudence.

The first reported case of PIL, in 1979, focused on the inhuman conditions
of prisons and under trial prisoners. In Hussainara Khatoon v. State of
Bihar (AIR 1979 SC 1360) the PIL was filed by an advocate on the basis of
the news item published in the Indian Express, highlighting the plight of
thousands of undertrial prisoners languishing in various jails in Bihar.
These proceeding led to the release of more than 40, 000 undertrial
prisoners. Right to speedy justice emerged as a basic fundamental right
which had been denied to these prisoners. The same set pattern was
adopted in subsequent cases.

In 1981, the case of Anil Yadav v. State of Bihar (AIR 1982 SC 1008)
exposed the brutalities of the Police. Newspaper reports revealed that
about 33 suspected criminals were blinded by the police in Bihar, by
putting acid into their eyes. Through interim orders, the Supreme Court
directed the State Government to bring the blinded men to Delhi for
medical treatment. It also ordered speedy prosecution of the guilty
policemen. The court also read right to free legal aid as a fundamental
right of every accused. Anil Yadav signalled the growth of social activism
and investigative litigation.

In Citizen for Democracy v. State of Assam (1995) 3SCC 743), the Supreme
Court declared that handcuffs and other fetters shall not be forced upon
a prisoner while lodged in jail or while in transport or transit from one jail
to another or to the court or back.
Filing a PIL is not as cumbersome as any other legal case and there have
been instances when even letters and telegrams addressed to the court
have been taken up as PILs and heard by the court.

ASPECTS OF PIL

1) Remedial in nature: Remedial nature of PIL departs from the

traditional locus standi requirements. It indirectly incorporated the
principles enshrined in the Part IV of the Constitution of India into Part III
of the Constitution. By riding the aspirations of part IV into part III of the
Constitution, the Indian Judiciary had changed the procedural nature of
the Indian law into a dynamic welfare one. Bandhu Mukti Morcha v.
Union of India, Unnikrishnan v. State of A.P., etc were the obvious
examples of this change in nature of judiciary.

2) Representative Standing: Representative standing can be seen as a

creative expansion of the well-accepted standing exception which allows
a third party to file a habeas corpus petition on the ground that the
injured party cannot approach the court himself. And in this regard the
Indian concept of PIL is much broader in relation to the American
concept. PIL is a modified form of class action.

3) Citizen Standing: The doctrine of citizen standing thus marks a

significant expansion of the court’s rule, from protector of individual
rights to guardian of the rule of law wherever threatened by official
lawlessness.
4) Non-Adversarial Litigation: In the words of the SC, in People’s Union
for Democratic Rights v. Union of India (AIR 1982 S.C. 1473) “We wish to
point out with all the emphasis at our command that public interest
litigation…is a totally different kind of litigation from the ordinary
traditional litigation which is essentially of an adversary character where
there is a dispute between two litigating parties, one making claim or
seeking relief against the other and that other opposing such claim or
resisting such relief”. Non-adversarial litigation has two aspects.”

IMPORTANT FEATURES OF PIL [12]

Through the mechanism of PIL, the courts seek to protect human rights in
the following ways:

1) By creating a new regime of human rights by expanding the meaning of

fundamental right to equality, life and personal liberty. In this process,
the right to speedy trial, free legal aid, dignity, means and livelihood,
education, housing, medical care, clean environment, right against
torture, sexual harassment, solitary confinement, bondage and servitude,
exploitation and so on emerge as human rights. These new
reconceptualised rights provide legal resources to activate the courts for
their enforcement through PIL.

2) By democratization of access of justice. This is done by relaxing the

traditional rule of locus standi. Any public spirited citizen or social action
group can approach the court on behalf of the oppressed classes. Courts
attention can be drawn even by writing a letter or sending a telegram.
This has been called epistolary jurisdiction.
3) By fashioning new kinds of reliefs under the court’s writ jurisdiction.
For example, the court can award interim compensation to the victims of
governmental lawlessness. This stands in sharp contrast to the Anglo-
Saxon model of adjudication where interim relief is limited to preserving
the status quo pending final decision. The grant of compensation in PIL
matters does not preclude the aggrieved person from bringing a civil suit
for damages. In PIL cases the court can fashion any relief to the victims.

4) By judicial monitoring of state institutions such as jails, women’s

protective homes, juvenile homes, mental asylums, and the like. Through
judicial invigilation, the court seeks gradual improvement in their
management and administration. This has been characterized as creeping
jurisdiction in which the court takes over the administration of these
institutions for protecting human rights.

5) By devising new techniques of fact-finding. In most of the cases the

court has appointed its own socio-legal commissions of inquiry or has
deputed its own official for investigation. Sometimes it has taken the help
of National Human Rights Commission or Central Bureau of Investigation
(CBI) or experts to inquire into human rights violations. This may be called
investigative litigation.

PIL AS AN INSTRUMENT OF SOCIAL CHANGE [13]

PIL is working as an important instrument of social change. It is working

for the welfare of every section of society. The innovation of this
legitimate instrument proved beneficial for the developing country like
India. PIL has been used as a strategy to combat the atrocities prevailing
in society. It’s an institutional initiative towards the welfare of the needy
class of the society. In Bandhu Mukti Morcha v. Union of India, SC
ordered for the release of bonded labourers. In Murli S. Dogra v. Union of
India, court banned smoking in public places. In a landmark judgement of
Delhi Domestic Working Women’s Forum v. Union of India ((1995) 1 SCC
14), Supreme Court issued guidelines for rehabilitation and compensation
for the rape on working women. In Vishaka v. State of Rajasthan Supreme
court has laid down exhaustive guidelines for preventing sexual
harassment of working women in place of their work.

CRITICISM OF PIL [14]

The debates over the limits of Judicial Activism in the area of PIL, have
been vigorous. A private members bill entitled “Public Interest Litigation
(Regulation) Bill, 1996” was tabled in the Rajya Sabha. The statement of
objectives and reasons stated that PIL was misused in the name of
providing justice to the poor sections of the society and also that PIL
cases were given more priority over other cases which led to pending of
several “general section cases” in the court for years. However the bill
was not passed.

Bearing in mind the power and importance of PIL in making the

Constitution a living reality for every citizen and also the efforts
channelled through the medium of PIL jurisprudence in providing justice
to the deprived, the process is positively succeeding, following the logic
of its nature. In a country Characterized by numerous “Variable Ethnicity”
and religious diversity, working via the pattern through a comprehensive
bureaucracy, a grieved, poor, deprived citizen does find it hard to seek
justice because of economic disability or lack of “Know-How” or even due
to red-tapism. The only option left before the deprived next to a miracle
is a PIL petition.

CONCLUSION

It would be appropriate to conclude by quoting Cunningham, “Indian PIL

might rather be a Phoenix: a whole new creative arising out of the ashes
of the old order.” PIL represents the first attempt by a developing
common law country to break away from legal imperialism perpetuated
for centuries. It contests the assumption that the most western the law,
the better it must work for economic and social development such law
produced in developing states, including India, was the development of
under develop men. The shift from legal centralism to legal pluralism was
prompted by the disillusionment with formal legal system. In India,
however instead of seeking to evolve justice- dispensing mechanism
ousted the formal legal system itself through PIL. The change as we have
seen, are both substantial and structural. It has radically altered the
traditional judicial role so as to enable the court to bring justice within
the reach of the common man. Further, it is humbly submitted that PIL is
still is in experimental stage. Many deficiencies in handling the kind of
litigation are likely to come on the front. But these deficiencies can be
removed by innovating better techniques. In essence, the PIL develops a
new jurisprudence of the accountability of the state for constitutional and
legal violations adversely affecting the interests of the weaker elements
in the community. We may end with the hope once expressed by an
eminent judge “The judicial activism gets its highest bonus when its
orders wipe some tears from some eyes.”
Ombudsman: A Critical Appraisal

December 17, 2014 by admin Leave a Comment

by Soumik Chakraborty

Editor’s Note: An ombudsman is a person who acts as a trusted

intermediary between either the state, elements of state or an
organization, and some internal or external constituency, while
representing not only but mostly the broad scope of constituent
interests. Ombudsman is etymologically rooted in the Old Norse word
umboðsmaðr, essentially meaning “representative”. In its most frequent
modern usage, an ombudsman is an official, usually appointed by the
government or by parliament but with a significant degree of
independence, who is charged with representing the interests of the
public by investigating and addressing complaints reported by individuals.

Origin and Evolution

An ombudsman is a person who acts as a trusted intermediary between

either the state, elements of state or an organization, and some internal
or external constituency, while representing not only but mostly the
broad scope of constituent interests. Ombudsman is etymologically
rooted in the Old Norse word umboðsmaðr, essentially meaning
“representative”. In its most frequent modern usage, an ombudsman is
an official, usually appointed by the government or by parliament but
with a significant degree of independence, who is charged with
representing the interests of the public by investigating and addressing
complaints reported by individuals.
Whether appointed by the legislature, the executive, or an organization,
the typical duties of an ombudsman are to investigate constituent
complaints and attempt to resolve them, usually through
recommendations or mediation. Ombudsmen sometimes also aim to
identify systemic issues leading to poor service or breaches of people’s
rights. At the national level, most ombudsmen have a wide mandate to
deal with the entire public sector, and sometimes also elements of the
private sector such as contracted service providers. In some cases, there
is a more restricted mandate, for example with particular sectors of
society. More recent developments have included the creation of
specialised Children’s Ombudsman and Information Commissioner
agencies.

The figure of Ombudsman, with its current characteristics, owes its origin
from Sweden, however, its traces may be found in ancient history. In this
regards, Dr. Pickle, Director General of the Austrian Ombudsman’s Office
has made the following observation in his renowned paper[i]: –

“Institution to investigate complaints can only be seen in the context of

public administration; hence their history is also the history of public
administration as a whole. It goes back to the Koran. In the Koran itself
the term ‘administration’ is not used, but in many of its verses the
principles of political and administrative system are expounded. Justice is
one of the basic principles of Islamic Ideology.

Before the times of Prophet Muhammad (PBUH) there was no

administration in the proper sense of the word. It was the Prophet who
first introduced administrative authorities. He appointed governors of the
provinces, judges and tax collectors. They were all accountable to the
Prophet. We have no report of complaints about these institutions. As
essential principles of government and administration, the Prophet
bequeathed trust, justice and effectiveness as well the combination of
authority with responsibility.

It was Omer, Second Caliph of Islam, who created the Institution of

Mohtasib[ii]. He enjoyed complete independence and functioned within
the framework of an institution called ‘hisbah’. Its role was to ensure the
observance of religious principles in daily life. In Egypt this institution
existed up to the middle of the 19th century. An interesting fact in this
context is that the institution of ‘hisbah’ and its functions was also
adopted by the Cursaders in Jerusalem; they even used the even used the
Arab world ‘Mohtasib’ although they changed it into ‘Mathessep’.*iii+

Hazrat Ali, forth Caliph of Islam, in his famous epistle to Malik Ashtar, the
Governor of Egypt, stressed the very fact in the following manner: –

“Out of your hours of work fix a time for complaints and for those who
want to approach you with their grievances. For this purpose you must
arrange public audience for them, and during this audience, for the sake
of God, treat them with kindness, courtesy and respect. Do not let your
army and police be in the audience hall at such a time so that those who
have grievances against your government may speak to you freely,
unreservedly and without fear. All this is a necessary factor for your rule
because I have often heard the Prophet (Peace of God be upon him)
saying: “that nation or government cannot achieve salvation where the
rights of the depressed, destitute and suppressed are not guarded, and
where mighty and powerful persons are not forced to accede to these
rights”.*iv+
During the Abbasids era (750-847), complaint handling agencies called
“Diwan-al-Mazalim”*v+ were established. Its function was to examine
complaints brought by the public against government officials. The
institution was headed by a senior judge responsible for examining the
grievances.

The genesis of the institution may also be found in Sparta and Athens,
where the office of the “Eflore” and the “Euthynoi”, respectively
controlled the activities performed by the officials of government and
municipal actions. The Romans installed an officer called the ‘tribune’ to
protect the interests and rights of the plebeians from the patricians. In
China, during the Yu and Sun dynasty, an officer called ‘Yuan’ was
appointed to report the voice of the people to the Emperor and to
announce the Emperor’s decrees to the people*vi+. The Persian Empire,
King Cyrus charged the “O Olho de Rei” with the duty to supervise the
activity of all his officials. During the XV century, the Council of the Ten, in
Venice, had the mandate to control the bureaucratic excesses committed
in the city.

During his exile in Turkey, the King of Sweden, Charles XII, observed the
working of Dewan-i-Mazalim. On restoration, the King ordered to
establish a similar institution in Sweden[vii]. In Sweden the office was
institutionalized in 1809 with the title of Justitieombudsman. According
to Ibrahim al-Wahab*viii+ “of course one could not draw definite
conclusion regarding the origin of any institution anywhere …. But being
aware of the history of complaint handling in the Islamic law system and
the fact that during the time of King Charles XII in Turkey this system was
existing, the influence seems to be evident”.
‘Ombudsman’*ix+ is an old Swedish word that has been used for centuries
to describe a person who represents or protects the interests of another.
The word was originally derived from medieval Germanic tribes where
the term was applied to a third party whose task was to collect fines from
remorseful culprit families and give them to the aggrieved families of
victims (Kircheiner, 1983). The part word, ‘man’ is taken directly from
Swedish (the old Norse word was ‘umbodhsmadr’) and does not
necessarily mean that the holder be of the male gender. At present, there
are several women, who are part of ombudsman community
worldwide.[x]

In Sweden, the ombudsman office was established by the Parliament to

assist it in its dealings with the Executive and the Judiciary. Apparently, it
may be considered that the Riksdag (Swedish Parliament) felt inability to
satisfactorily exercise its oversight on the activities of other branches of
government. In order to carry out its role as representative of the people,
the Swedish Parliament felt that it needed an officer who could actively
deal with complaints made by the public about action being taken by
Executive and the Judiciary. In addition, the following key elements of the
Swedish form of government also led to the establishment of
ombudsman office: –

There is no concept of Ministerial responsibility such as exists in

Parliaments based on the Westminster system, where the minister is
chosen from the members of the Parliament.

In Sweden the Judiciary is a career service that is modeled much more

closely on a traditional executive style of decision maker and which
therefore lends itself to some of the pressures that exist in any career and
promotion based bureaucracy.

Spread of Ombudsman Concept

The first Swedish ombudsman was Lars Augustin Mannerheim[xi]. For
more than 100 years, the office remained confined to Sweden and could
hardly create any ripple for other countries. Its contagion effect came out
in the twentieth century, when it was adopted in other Scandinavian
countries, in Finland (1919), Denmark (1955) and Norway (1962). The
introduction of the Danish ombudsman, in 1955, marked the beginning of
the worldwide interest in the ombudsman schemes[xii]. After assuming
as the first Danish Ombudsman, Professor Stephen Hurwitz, begin to
write and lecture about his office in English[xiii]. This activity stimulated
interest, which readily spread in the Anglo-Saxon world as more and
more article begin to appear about ombudsman in English language
publications.[xiv] Professor Larry B Hill has narrated this fact in the
following manner: –

“Mindful of the fact that his own countrymen were insufficiently aware of
the powers and possibilities of his newly created office, professor Hurwitz
energetically engaged in a campaign of public education in his homeland.
Early successes as a lecturer abroad created a lively demand for
appearances by him at distant places. Responding to that demand, he
widened the range of his expository and exhortatory efforts, almost as
though he were an apostle of a new faith or perhaps the salesman of an
export commodity. His persuasive speeches and writings, well supported
by the writings of other enthusiasts, transformed an ancient institution
into one seemingly designed specifically to meet current needs”.*xv+

The introduction of an ombudsman in New Zealand, the first common law

country, in 1962, sparked off a great deal of interest in the ombudsman
concept throughout the world[xvi]. But the question remains why
Westminster like parliamentary democracies, where the ministerial
responsibility as well as independent judiciary are significant features,
have adopted the institution of Ombudsman. This question warrants a
deeper insight into the socio-political and economic conditions of the age,
in order to understand the need and justification of this new institution.

The concept of the ombudsman evolved during the Swedish

enlightenment (1719-72) where democracy, humanitarianism and
individual liberty were emphasized against state absolutism, injustice and
abuse or misuse of public power (Caiden, 1983). The surge of democratic
values placed prime importance upon the personal responsibility of
officials towards their citizens.[xvii] The period following World War II,
ignited considerable discussion in many countries outside Scandinavia,
regarding the establishment of a process to examine things undertaken
by the administration, alongside and beyond the formal means of redress
available through the courts or through Parliament itself, or by means of
the Press.[xviii] The ombudsman institution was established as a reply to
the major developments, taking place during the twentieth century.
These developments, inter alia, include: –

Over a period of time the legislature delegated more powers to the

administration. The increase in the discretionary powers given to the
executive, led to a need for additional protection against administrative
arbitrariness. In particular, it was felt that there was often no redress for
those aggrieved by administrative decisions.

The welfare state models in many countries from the 1930’s onward led
to very large government bureaucracies. The development of diverse and
intricate structure resulted in citizen confusion as to what governmental
jurisdiction has the authority to resolve their problems or provide the
needed services. Whatever actions, which were taken by the
Governments to improve or reorganize their administrations it always
resulted in increase in the size and power of the executive. There was
growing concern that a simple independent mechanism of redress
needed to be evolved for the individual citizen. Professor D C Rowatt has
neatly expressed this concern in an article suggesting an Ombudsman
Institution in Canada[xix]: –

“It is quite possible nowadays for a citizen’s right to be accidentally

crushed by the vast juggernaut of the government’s administrative
machine. In this age of the welfare state, thousands of administrative
decisions are made each year by governments or their agencies, many of
them by lowly officials; and if some of these decisions are arbitrary or
unjustified, there is no easy way for the ordinary citizen to gain redress”.

The transition of many countries to democracy and democratic structures

of governance over the past two decades has led to the establishment of
many more ombudsman offices. While commenting on the usefulness of
the institution with respect to transition countries, Sir, John
Robertson[xx] has written: –

“The Ombudsman institution is seen in those countries as a

valuable insurance against falling back into old habits, and an influential
oversight organization to ensure that the bureaucracy has a more human
face”.

Concern for the protection of human rights, and the growth of public
education and participation has also been major elements in the
acceptance of ombudsman concept globally.[xxi]

Another important factor in the spread of ombudsman institution is

growing public demand for greater transparency in the process of
government. Presently, it is getting impossible that people elect a
government and then allow them to govern until the next election.
“Complexity in government business, and the wish of people to
participate more in decision making processes, which affect the direction
of their life, means that citizen need access to information and that
governments have an obligation to facilitate transparency and
consultation, and to give adequate reasons for their action”*xxii+.

In October 1991, United Nations held First International Workshop on

National Institutions for the Promotion and Protection of Human Rights in
Paris. The workshop ended up with conclusions, known as Paris
Principles. The Principles recognized that there should be such national
institutions which can receive and act on complaints of human rights
violations. These institutions may seek amicable settlements, inform
complainants of their rights and how to seek redress, hear complaints or
refer them to competent authorities, and make recommendations to
solve human rights problems including by amending laws or other acts
that obstruct the free exercise of rights. These Principles have been
extremely helpful for governments around the world to understand how
to create an independent and impartial institution.

The Ombudsman concept provides the safeguard that every citizen will
be provided an avenue to voice his concerns and grievances and permit
opportunity for resolution prior to seeking remedy within the costly,
cumbersome and backlogged judicial system. The informality, low cost,
rapidity of action, flexibility, ability to enforce new policy, freedom from
elaborate rules and of evidence are the important qualities, which make
the ombudsman institution an ideal for the common man to seek relieve
against administrative excesses and to get his grievances small or great,
redressed without spending money.[xxiii] The role of the ombudsman is
to ensure that all public officials perform their duties with justice, honesty
and public responsibility. Thus, the ombudsman became a unique
instrument to represent the interests of citizens, protect basic human
rights and improve quality of public administration.
The ombudsman concept is one which has grown rapidly in a variety of
constitutional settings throughout the world[xxiv]. According to Roy and
Giddings, “Ombudsman nowadays take many different forms, they work
in different ways, and they dwell in variety of habitats”.*xxv+ In early
1980s, Caiden et al observed in an ombudsman study in the following
manner: –

“It is found in old countries and new countries, rich countries and poor
countries, capitalist economies and socialist economies, unitary states
and federal states, civil regimes and military regimes, states with strong
administrative law system and states with week administrative law
systems, presidential and cabinet systems, political systems where
legislators enjoy constituents’ case work and political systems where they
do not”.*xxvi+

By the year 2004, the ombudsman office, exists in approximately 120

countries around the world.[xxvii] Some countries have ombudsman
offices at the national and sub-national levels, such as Australia,
Argentina, Mexico, Pakistan, Spain and UK, while other nations have
ombudsman offices only at the subnational government level, as in
Canada, India and Italy. Another interesting aspect of the institution can
be seen from the way this public sector institution has been ‘‘flatteringly
copied’’ by the private sector.*xxviii+

Various Titles used for Ombudsman

A variety of names have been used to represent the ombudsman office in

different countries. The titles adopted by various countries connote
diversity of shades and focus of ombudsman office. For example,
Defensordel Pueblo is the title of the ombudsman office in a number of
Spanish-speaking countries i.e. Spain, Argentina, Peru and Colombia.
Parliamentary Commissioner for Administration in Sri Lanka, United
Kingdom, Médiateur de la République in France, Gabon, Mauritania,
Senegal, Public Protector in South Africa, Protecteur du Citoyen in
Québec, Volksanwaltschaft in Austria, Public Complaints Commission in
Nigeria, Provedor de Justiça in Portugal, DifensoreCivico in Italy,
Investigator-General in Zambia, Citizen’s Aide in Iowa, WafaqiMohtasib in
Pakistan, LokAyukta in India and Board of Grievances in Saudi Arabia, are
the titles of some other ombudsman offices around the world. In a
number of countries, the protection of human rights is one of the major
purposes of the ombudsman office, and this is often reflected in the
name of the office. For example, in Guatemala ombudsman is known as
Procurador de los DerechosHumanos (Counsel of Human Rights), in El
Salvador as theProcurador Para la Defensa de los DerechosHumanos
(Counsel for the Defence of Human Rights), and in Mexico as
ComisiónNacional de DerechosHumanos (National Commission of Human
Rights). Other national level example includes, Plenipotentiary for Human
rights in Russia, the Commission on Human Rights and Administrative
Justice of Ghana, the Civil Rights Protector of Poland, the Human Rights
Ombudsman of Slovenia and the Parliamentary Commissioner for Human
Rights in Hungary. The modus operandi of ombudsmen, therefore, varies
enormously from impartial investigator to enabler-facilitator and broker-
negotiator to citizen-advocate.[xxix]

The original Swedish concept of ombudsman has proved remarkably

flexible and adaptable. It has been constantly adapted and modified to
suit a wide variety of sectors and organizations. There are public sector
ombudsmen, created by statute, and private sector ombudsmen, created
as voluntary schemes, legislative ombudsmen and executive ombudsmen,
all-purpose ombudsmen and specialized ombudsmen. Some ombudsmen
can investigate on their own initiative while others can only respond to
complaints. Apart from classical ombudsmen, several ombudsmen like
institutions exist in private sector. In North America, there are about 100
ombudsman offices in colleges and universities, an estimated 200 in
corporations. Three dozen newspapers have an ombudsman. Nearly
4,000 hospitals have patient ombudsman offices and a great many
businesses have client or consumer complaint offices. Each state has a
nursing home/long-term cafe ombudsman structure, and there appear to
be about 1,500 part-time and full-time ombudsmen attached to those
offices.

The vast majority of ombudsmen operate only within a national

jurisdiction. European Community Ombudsman, created under the
Maastricht Treaty in 1995, enjoys the unique status of being one of the
supranational ombudsmen in existence. The European Ombudsman is
responsible for investigating complaints of maladministration in the
activities of Community institutions or bodies. The World Bank’s
Inspection Panel provides another example of an international
ombudsman-style system. The Inspection Panel was created in 1993 to
provide an independent forum for private citizens who believe that they
or their interests have been or could be adversely affected by a project
financed by the World Bank and to investigate any failures by the Bank to
follow its policies and procedures.

Characteristics and Objectives of Ombudsman Institution

With the spread of ombudsman concept and its utility, several surrogate
institutions have emerged in the private sector, which claim the title of
ombudsman. Some scholars*xxx+ drew distinction between, “classical”
ombudsman and other kinds of “quasi” or “executive-ombudsman”.
However, Gellhorn made clear distinction between classical and other
agencies performing the ombudsman function. Professor Larry B Hill has
enumerated the following characteristics of the pure ombudsman[xxxi]: –

Established as separate entity that is functionally autonomous.

Operationally independent of both the legislature and the executive.

Ombudsman is a legally established governmental official.

A monitoring specialist.

Administrative expert and professional.

Non-partisan.

Normatively universalistic.

Client-centered, but not anti-administration.

Popularly accessible and visible.

High status institutions

Have extensive resources to perform his mission.

Functions of Ombudsman

The core business of public sector ombudsman remains receiving,

investigation and redressal of citizen’s complaints related to mal-
administration of government agencies or their functionaries. An
interesting feature of ombudsman institution is that it does not compete
with the courts, or act as a further body to which those unsuccessful in
the courts can appeal. The primary function of the Ombudsman is
generally to examine:[xxxii]
A decision, process, recommendation, act of omission or commission
which is contrary to law, rules or regulations, or is a departure from
established practice or procedure, unless it is bona fide and has valid
reason; is perverse, arbitrary or unreasonable, unjust, biased, oppressive
or discriminatory; based on irrelevant grounds; or, involves the exercise
of powers or the failure or refusal to do so for reasons of corrupt or
improper motives such as bribery, jobbery, favouritism, nepotism, and
administrative excesses; and,

neglect, inattention, delay, incompetence, inefficiency and ineptitude in

the administration or discharge of duties and responsibilities.

Professor Larry Hill[xxxiii] has described the following six major objectives
of the ombudsman institution: –

To right individual wrongs.

To make bureaucracy more humane.

To lessen popular alienation from government.

To prevent abuses by acting as a bureaucratic watchdog.

To vindicate civil servants when unjustly accused, and

To introduce administrative reform.

Commenting on the role of Ombudsman, which was challenged in 1970 in

Alberta, Chief Justice Milvain said:-

“… the basic purpose of an Ombudsman is provision of a ‘watchdog’

designed to look into the entire workings of administrative cases. … *he+
can bring the lamp of scrutiny to otherwise dark places even over the
resistance of those who would draw the blinds. If [his] scrutiny and
reservations are well founded, corrective measure can be taken in due
democratic process, if not no harm can be done in looking at that which is
good”.*xxxiv+

Mr. Stephen Owen, former ombudsman of British Columbia as well as

former President of International Ombudsman Institute, maintains that in
keeping with the general principles that it is the proper role of the
ombudsman office ‘to strive for the mutually acceptable resolution of a
problem rather than necessarily finding of fault or the absence of it’. The
office should attempt ‘to provide informal mediation services wherever
such an approach may be productive’. This approach, he argues, not only
tends to result in greater satisfaction among all parties, but frequently
provides a more rapid resolution than a full investigation oriented to a
finding of right or wrong. Similarly, Mr. Marten Oosting observes that it is
important for the ombudsman to recognize that many of the complaints
made by the general public do not call for a full-scale investigation. What
people often want and expect, he suggests, is direct action geared
towards solving the problems that gave rise to the grievance. The
ultimate responsibility for providing this solution lies with the relevant
government body itself. But, he says, the ombudsman can make efforts to
bring such solution closer.

Evolution of Ombudsman Functions

The increase in both the number and types of ombudsman offices across
the globe has also led to significant additions and modifications to its
functions. Some of the important changes in ombudsman functions are
discussed as follows: –
In Sweden, where officials are responsible neither to the Crown nor to
Parliament, but are subject to the rule of law, the main functions of the
ombudsman, acting on his own initiative and empowered to take legal
proceedings against civil servants and judges for breaches of the law was
designed to act as prosecutor. With the passage of time the focus of the
office became receiving and investigating complaints related to
maladministration. Ulf Lundvik, former Swedish ombudsman, pointed
out, “the redress of grievances is not main concern of the Ombudsman”.
Their main task, he says, remains that of maintaining ‘a good standard
within the public service’.

In Denmark, the role of ombudsman, inter alia, was to safeguard law and
order for the individual as an appellate institution for citizens who came
into conflict with the administrative agencies. The ombudsman was
meant to be “the protector of the man in the street against injustice,
against arbitrariness, and against the abuse of power on the part of the
executives”.*xxxv+

With the introduction of ombudsman office in New Zealand and other

Commonwealth countries, the role of ombudsman began to undergo an
important change in focus. The principle duty of ombudsman was
considered to investigate complaints and where appropriate recommend
some form of remedial action. Therefore, the ombudsman’s function
became primarily to redress grievances. This is equally true about
Pakistan. In UK, the statutory mandate of Parliamentary Commissioner
for Administration authorizes him to do no more than investigate and
report. Its primary functions have been to secure redress where
complaints are justified.

The shift of emphasis from a primary concern for the quality of public
administration to the provision of redress in individual cases of injustice,
by no means brought the evolution of the ombudsman’s function to an
end. In the word of Professor Kenneth Wiltshire, “the lot of the modern
ombudsman is not simply to open the door, the switchboard and the mail
each day and respond to complaints which waft in, many of which have
common causes elements and generic causes”. He writes, the emphasis
of the office is to be “proactive, systemic, and preventative in its
orientation”.*xxxvi+

The ombudsman offices not only consider individual grievances but also
identify ‘systemic’ faults, thereby helping to secure improvements of a
general nature as regards working methods and administrative practices
and procedures. Martin Oosting,[xxxvii] has observed that a series of
separate investigations occasioned by similar complaints may raise
questions about underlying causes. It is one of the ombudsman’s
functions to identify these causes, and where possible make
recommendations for their prevention.

Some ombudsmen have gone even further as regards the promotion of

good practice and published codes of offering general guidance to
government bodies as well as the officials. In Ireland, with the annual
report for 1996, the ombudsman issued a document bearing the title,
“Ombudsman’s Guide to Standards of Best Practice for Public Servants”.
In 1990, the Ombudsman of British Columbia produces an
“Administrative Fairness Checklist”, which was to be used in consultation
with agencies to review their policies and practices regarding service to
the public. Some other examples include, New South Wales’ “The Right
Stuff – Tips for making complaints and solving problems – a Toolkit for
consumers of community services in NSW” (2004), the Commission for
Local Administration in England’s booklet, “Good Administration
Practices: Guidance on Good Practice 2” (1995), Parliamentary
Commissioner’s document, “The Ombudsman in Your Files” (1995) and
European Union’s “Draft Code of Good Administrative Behaviour for
European Community Institutions and Bodies”.

Many ombudsman offices are empowered to start investigation on their

own initiatives, although this power of ‘system fixing’ has been used
sparingly. Jacob Soderman, the European Union Ombudsman, suggests
that such ‘own motion’ powers of investigation may also be used where a
number of complaints focuses on a specific administrative authority, or a
particular type of administrative activity, providing grounds for thinking
that a more general inquiry should be conducted.

The ombudsman offices have also provided advice to the agencies on

dealing with complaints properly. For example, the New South Wales
Ombudsman office issued a 293-page compendium entitled “The
Complaint Handler’s Toolkit” (2000), Australian Commonwealth
Ombudsman document, “Good Practice Guide for Effective Complaint
Handling” and Commission for Local Government Administration in
England’s publication, “Devising a Complaints System: Guidance on Good
Practice 2”.

Another extension to the range of ombudsman’s functions include its

new role in the promotion of ‘open government’. Most of the
ombudsman offices have been authorized to deal with complaints about
the way in which public bodies have handled requests for information
under the code of practice or relevant legislation operative in the
country.

A number of ombudsmen have also added to their functions a role of

policing of codes. One aspect of the generalized task of uncovering
instances of governmental corruption assigned to ombudsman offices in
the developing world takes the form of responsibility from policing the
application of ‘leadership codes’. In Papua New Guinea, Uganda and
Vanuatu, the duty of ombudsman include applying the rule of ethical
conduct which senior politicians, judges and public officials are required
to follow.

The Australian Commonwealth Ombudsman and NSW ombudsman have

the responsibility for auditing telephone intercepts records. Both offices
also have the responsibility of protecting ‘whistle blowers’. The NSW
ombudsman also have witness protection function.
During the 1970s, the ombudsman offices began to develop an approach
to case handling that diverged significantly from ‘investigation and report’
mode of operation which has characterized the office in earlier years. The
ombudsman offices have increasingly focused on the possibility of
conciliation, and on helping to achieve an outcome satisfactory to the
complainant and the agency concerned as quickly and informally as
possible. Stephen Owen[xxxviii] maintains that the primary role of
ombudsman is ‘to strive for the mutually acceptable resolution of a
problem rather than necessarily finding of faults or the absence of it’, the
office should attempt ‘to provide informal mediation services wherever
such an approach may be productive’.

Jurisdiction of the Ombudsman

The operational mode of the ombudsman varies greatly according to the

activity and environment. However, in essence, there are two models: –

Reactive ombudsman who waits for complaints and acts on what has
been brought forward. In Britain, for example, ombudsmen tend to be
reactive offices that can only respond to complaints or grievances, the
last port of call in a formal complaints procedure.

Proactive ombudsman who seeks out matters of concern, inspects and

initiates investigations. In Scandinavia, an ombudsman may initiate action
and has an ongoing inspection role, such as the Public Justice
Ombudsman who keeps a watchdog eye on public administration and
tackles action to ensure acceptable quality and standards are maintained.

Criteria Used by Ombudsman to Judge the Official Actions

Ombudsman Offices around the world receive a bulk of complaints each
year. Out of these, a large number of complaints are rejected on the
ground that they fall outside the ombudsman jurisdiction. Ombudsmen
have to operate within the jurisdiction set out in their legislation.
Common criteria for accepting or rejecting complaints largely include the
following questions:

Is the complaint within the Ombudsman’s jurisdiction at all? (A surprising

number are not.)

Has the person complaining exhausted the other remedies available to

them? (The Ombudsman should be a last resort, not a first port of call.) If
not, is it reasonable to expect them to have done so?

Has the complainant sufficient personal interest in the subject matter of

the complaint?

Is the matter already before the courts? If so, is it appropriate for the
Ombudsman to become involved?

On the face of the complaint, does it appear that the person complaining
is not acting in good faith?

Ombudsmen apply various criteria for making judgment whether a

particular conduct is proper or improper. Some of the important criteria
are: –

Whether a particular government action concords or conflicts with

statutes and principles, Ideally, an Ombudsman approaches the action
broadly and reviews it both in the light of the provisions of the written
law, and in the light of unwritten legal principles, as well as, against the
standards for good governance.
Investigations of the action in view of the written law include such areas
relating to human and constitutional rights, definitions of competence,
and provisions governing from procedure and substance.

Investigation of the action in view of the unwritten legal principles

(developed in case law and legal doctrine) are equally relevant to the
lawfulness of government conduct, and include the principles of: equal
treatment for equal cases; reasonableness; proportionality between
means and end; legal certainty and of legitimate expectations; the
requirement to provide reasons for decisions; and, of certain duties of
care.

An Ombudsman also uses standards or guidelines for good governance

which contribute to the decency of the way the executive authorities act.
The standards can be summed up as the imposition of a broad duty of
care. These are manifested in certain accepted standards for
administrative processes and the conduct of public servants in relation to
the public. They include the requirement to act without undue delay; to
supply the individual with relevant information; to treat people fairly and
respectfully; and, to be unbiased and helpful.

Finally, the Ombudsman sets standards for the government organization

– such as those of coordination, monitoring of progress, protection of the
individual’s privacy, and accessibility of the authorities.

Feedback on the quality of government services

The ombudsman office provides not only for individual redress, appeals
and dispute resolution, but also an auditing and accountability role.
Ombudsmen office can make the political system more responsive to
citizens both individually and collectively[xxxix] (Hyman, 1979, p. 151). An
Ombudsman can also contribute significantly to the quality of
government, by providing feedback on the administrative performance.
This is particularly important for government organizations wishing to
perform their functions in a customer-friendly manner. Complaints are
signals, constituting a valuable source of information for quality
assurance. This feedback can be of particular value for government
organizations as they often have a monopoly of their own and are rarely
exposed to the dynamics in the outside world. Observing the criteria for
proper conduct developed through the Office of the Ombudsman can, in
short, contribute to the rationality and legitimacy of public
administration.

In this regard, a “negative feedback model of accountability” has been

developed*xl+. The model explains that citizen’s complaints are an
important source of evaluative feedback on public programs. Taking
public laws and policies as statements of community goals, they set out
politically agreed upon quantity and quality of life in specific areas. When
citizens are disinterested in existing policies or regulations, or service
delivery systems fail or are inadequate, citizens are the first to know. In
most of the cases citizens have no way to communicate this information
to responsible decision-makers except through the very structures which
are often root cause of the problems. These structures, when dealing
with citizens often exhibit self-servicing interests inimical to resolving the
problem. In addition, the bureaucracies are often the only source of
information about such issues available to elected representatives and
officials. In developed countries the interest groups and political parties
identify major issues, but insofar as the average citizen is concerned,
particularly in developing countries, many problems are effectively kept
out of the decision-making process. In this situation citizen complaints
and problems are evaluative judgments that discrepancies exist between
the criteria established in public policy and the current operation of the
system. Therefore, the demands on a generalized complaint mechanism
such as an executive ombudsman are a form of negative feedback. For
example, analysis of the data can provide specific “error signals” about
where community goals and aspirations are not effectively carried out. In
this regard, the negative feedback approach says explicitly: “let the
system operate as long as it is working fairly well. We’ll listen to the
people who pay for it (taxpayers) and those who need to use it
(consumers), when they find the system fails them.”

Furthermore, third-party complaint programs are typically called upon as

a last resort, a place to appeal when others fail (Best, 1981). And because
they are open to the general public, such mechanisms do not control the
nature of their input. Attempts to bias input by political elites and
organized interest groups can easily be detected. Bureaucratic
obfuscation is avoided by establishing programs which are external to
bureaucracies and directly accessible by the general public. Thus, the
character of demands is determined by individual citizens. Patterns or
trends in particularized contacting constitute error signals or negative
feedback at the system level. This approach creates a new channel for
political demand external to bureaucracies whereby citizens can provide
inputs directly to elected officials. Particularized participation
mechanisms which operate in this fashion can serve as people’s
gatekeepers to the general political and administrative channels of the
political system, and they can provide elected representatives with an
external “window” on the bureaucratic network. When these conditions
obtain, a new open channel for political demand is created. Third-party
complaint programs become gatekeepers to the political system. A brief
example from one such programs follows.

Lokpal- An Indian Attempt at Establishing an Ombudsman System

A Lokpal is a proposed ombudsman in India. The word is derived from the

Sanskrit word “lok” (people) and “pala” (protector/caretaker), or
“caretaker of people.”The concept of a constitutional ombudsman was
first proposed in parliament by Law Minister Ashoke Kumar Sen in the
early 1960s. The first Jan Lokpal Bill was proposed by Shanti Bhushan in
1968 and passed in the 4th LokSabha in 1969, but did not pass through
the RajyaSabha. Subsequently, ‘lokpal bills’ were introduced in 1971,
1977, 1985, again by Ashoke Kumar Sen, while serving as Law Minister in
the Rajiv Gandhi cabinet, and again in 1989, 1996, 1998, 2001, 2005 and
in 2008, yet they were never passed. Forty-two years after its first
introduction, the Lokpal Bill is still not enacted in India.

The Lokpal Bill provides for the filing, with the ombudsman, of complaints
of corruption against the prime minister, other ministers, and MPs. The
Administrative Reforms Commission (ARC) recommended the enacting of
the Office of a Lokpal, convinced that such an institution was justified, not
only for removing the sense of injustice from the minds of citizens, but
also to instill public confidence in the efficiency of the administrative
machinery.

Following this, the Lokpal Bill was, for the first time, presented during the
fourth LokSabha in 1968, and was passed there in 1969. However, while it
was pending in the RajyaSabha, the Lok Sabha was dissolved, and thus
the bill was not passed.

The bill was revived several times in subsequent years, including in 2011.
Each time, after the bill was introduced to the House, it was referred to a
committee for improvements, to a joint committee of parliament, or to a
departmental standing committee of the Home Ministry. Before the
government could take a final stand on the issue, the house was dissolved
again. Several conspicuous flaws were found in the 2008 draft of the
Lokpal Bill. The basic idea of a lokpal is borrowed from the Office of the
Ombudsman, which has the Administrative Reforms Committee of a
lokpal at the Centre,andlokayuktas in the states.

Anna Hazare fought to get this bill passed, and it did pass on Dec 27,
2011, around 9:30, with some modifications. These were proposed as the
Jan Lokpal Bill. However, Hazare and his team, as well as other political
parties, claimed that the Lokpal Bill passed was weak, and would not
serve its intended purpose. So the proposed bill by the ruling Congress
Party has yet to be accepted in the RajyaSabha. As of Dec 29, 2011, the
bill has been deferred to the next parliamentary session, amid much
controversy and disruption by the LJP, RJD and SP parties. The media at
large, and the opposition parties, claimed the situation had been staged.

Jan Lokpal Bill

The Jan Lokpal Bill or the Citizen’s Ombudsman Bill is a draft anti-
corruption bill drawn up by prominent civil society activists, seeking the
appointment of a Jan Lokpal, an independent body that would investigate
corruption cases, complete the investigation within one year and conduct
trials for the case within the next year.

Drafted by Justice SantoshHegde ,a former Supreme Court Judge and

former Lokayukta of Karnataka, PrashantBhushan, a Supreme Court
Lawyer and ArvindKejriwal, an RTI activist, the draft Bill envisaged a
system in which a corrupt person found guilty would go to jail within two
years of the complaint being made and his ill-gotten wealth confiscated.
It also sought power for the Jan Lokpal to prosecute politicians and
bureaucrats without requiring government permission.
Retired IPS officer KiranBedi and others, like Anna Hazare, Swami
Agnivesh, Sri Sri Ravi Shankar, and Mallika Sarabhai are also members of
the movement, called India Against Corruption. Its website describes the
movement as “an expression of collective anger of people of India against
corruption.” It goes on to state: “We have all come together to
force/request/persuade/pressurize the Government to enact the Jan
Lokpal Bill. We feel that if this Bill were enacted it would create an
effective deterrence against corruption.”

Anna Hazare, an anti-corruption crusader, began a fast-unto-death,

demanding that this bill, drafted by Civil Society, be adopted. The website
of the India Against Corruption movement calls the Lokpal Bill of the
government an “eyewash”, and hosts a critique of that government bill. It
also lists the difference between the bills drafted by the government and
civil society.

Features of the Jan Lokpal Bill:

An institution called Lokpal at the centre and Lokayukta in each state will
be set up.

Like the Supreme Court and Election Commission, they will be completely
independent of governments. No minister or bureaucrat will be able to
influence their investigations.

Cases against corrupt people will not linger on for years anymore:
investigations in any case will have to be completed in one year. Trial
should be completed in the next one year, so that the corrupt politician,
officer or judge is sent to jail within two years.
The loss that a corrupt person caused to the government will be
recovered at the time of conviction.

If the work of any citizen is not done in a prescribed time, in any

government office, Lokpal will impose a financial penalty on the guilty
officers, which will be given as compensation to the complainant.

So, you could approach Lokpal if your ration card or passport or voter
card had not been made, or if the police are not registering your case, or
if any other work is not being done within the prescribed time. Lokpal will
have to get it done in a month’s time. You could also report any case of
corruption to Lokpal, like rations being siphoned off, poor quality roads
being constructed or panchayat funds being siphoned off.

But won’t the government appoint corrupt and weak people as Lokpal
members? That won’t be possible because its members will be selected
by judges, citizens and constitutional authorities, not by politicians,
through a completely transparent and participatory process.

The entire functioning of Lokpal/ Lokayukta will be completely

transparent. Any complaint against any officer of Lokpal will be
investigated and the officer dismissed within two months.

CVC, the departmental vigilance and anti-corruption branch of the CBI,

will be merged into Lokpal. Lokpal will have complete powers and
machinery to independently investigate and prosecute any officer, judge
or politician.

It will be the duty of the Lokpal to provide protection to those who are
being victimized for raising their voice against corruption.

Fundamental duties

To judge the cases and make jurisdictions against corruption cases with
the Lokpal.
To judge whether a case is genuine or whether a fake complaint has been
made.

To potentially impose fines on a fake complaint, or even a short span of

jail time, if the case is not proved to be legally true.

Criticisms of the Jan Lokpal Bill

A Naïve Approach-The bill has been criticised as being naïve in its

approach to combating corruption. According to PratapBhanu Mehta,
President of the Center for Policy Research Delhi,the bill “is premised on
an institutional imagination that is at best naïve; at worst subversive of
representative democracy”. The very concept of a Lokpal concept has
received criticism from Human Resource Developmentminister KapilSibal
in that it will lack accountability, be oppressive and undemocratic.

Extra Constitutional- The pro-bill activist ArvindKejriwal rejects the claim

of Lokpal being extra-constitutional with the explanation that the body
will only investigate corruption offences and submit a charge sheet which
would then tried and prosecuted through trial courts and higher courts,
and that other bodies with equivalent powers in other matters exist. The
proposed bill also lists clear provisions for the Supreme Court to abolish
the Lokpal.

Despite these clarifications, critics feel that the exact judicial powers of
Lokpal are rather unclear in comparison with its investigative powers. The
bill requires “…members of Lokpal and the officers in investigation wing
of Lokpal shall be deemed to be police officers”. Although some
supporters have denied any judicial powers of Lokpal, the government
and some critics have recognised Lokpal to have quasi-judicial powers.
The bill also states that “Lokpal shall have, and exercise the same
jurisdiction powers and authority in respect of contempt of itself as a
High court has and may exercise, and, for this purpose, the provisions of
the Contempt of Courts Act, 1971 (Central Act 70 of 1971) shall have the
effect subject to the modification that the references therein to the High
Court shall be construed as including a reference to the Lokpal.”Review of
proceedings and decisions by Lokpal is prevented in the bill by the
statement “…no proceedings or decision of the Lokpal shall be liable to be
challenged, reviewed, quashed or called in question in any court of
ordinary Civil Jurisdiction.”. As a result, how the trials will be conducted is
unclear in the bill, although the bill outlines requiring judges for special
courts, presumably to conduct trial that should be completed within one
year. The critics hence express concern that, without judicial review,
Lokpal could potentially become an extra-constitutional body with
investigative and judicial powers whose decisions cannot be reviewed in
regular courts.

Scope- The matter of whether the Indian Prime Minister and higher
judiciary should or should not be prosecutable by the Lokpal remains as
one of the major issues of dispute. Anna’s own nominee for co-chairing
the joint panel Justice Verma, the former Chief Justice of the Supreme
Court, has expressed his constitutional objections for including the Prime
Minister and higher judiciary under Lokpal.According to him, “this would
foul with the basic structure of the constitution”.

Criticism from the CBI Director- The CBI Director, in a presentation before
the Standing Committee of the Parliament, has strongly argued against
the vivisection of the CBI and merger of its anticorruption wing with the
Lokpal, noting that this would seriously cripple the core functioning of the
CBI and reduce it to irrelevance. An organization built over last 60 years
comprising competent professionals should not be subsumed under
Lokpal. CBI officers concede that in some sensitive political cases there is
of course interference from the government, but in respect of an
overwhelming majority of cases CBI functions, unfettered and
uninfluenced by extraneous considerations. For this reason there is an
ever increasing demand for CBI investigation from all-over the country in
respect of important cases.

Critical Observations on Ombudsman Scheme

The most common criticism of the ombudsman system is that the

function is not generally well understood. There is relatively limited
documentation and information about their work, often confusion and
uncertainty about their role, and with the proliferation of ombudsman
offices in different sectors, the confusion can be exacerbated. In spite of
the key characteristic of accessibility, ombudsman offices are frequently
noted for their inaccessibility. Few citizens are aware of the different
ombudsman schemes, how to reach them and how to process a
grievance. Inaccessibility is the chief reason why ombudsman offices tend
to be under-utilised, especially by the most disadvantaged who are less
likely to know of the existence of ombudsman and have more difficulty in
registering complaints or grievances. It seems that many ombudsman
schemes, particularly in Britain, are hidden by bureaucracy and formality
and lack a human face. The question of visibility is linked to more general
criticisms of the operational mode of the ombudsman as too reactive,
waiting for complaints rather than taking the office to the public or
initiating investigations.
The ombudsman office is also criticized for the fact that its effectiveness
tends to depend upon the character and personality of the ombudsman
officer(s) themselves rather than the system as a whole. Regardless of
their organizational framework they are a highly personalized institution
and success demands an individual or team who are perceived as
independent and impartial, with relevant qualifications and in-depth
knowledge of the sector, and can command respect and trust from all
parties. Of course, such individuals are hard to find.

Since the ombudsman’s powers lie essentially in recommendation there

is a genuine concern that the ombudsman lacks ‘teeth’. For instance, the
annual report (for many ombudsmen the only public document issued) is
often considered an inadequate instrument for influencing administration
procedures and practice, informing mass media and educating the public.
Moreover, the ombudsman is generally powerless to change or reverse
decisions. In fact, some believe that the ombudsman’s powers as critic
and reformer must be strengthened to influence changes in legislation
and policy and not just administrative procedure. The ombudsman should
be concerned not merely with laws or codes as they stand, but also as
they might be.