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A View Point of Civil Liability

The Law Commission of India constituted in 1955 observed, “The vast amount of Legislation which has been enacted by the Union and the States, a great deal of which impinges in a variety of ways on our lives and occupations. Much of it also confers large powers on the executive. The greater, therefore, is the need of ceaseless enforcement of the rule of law, so that the executive may not, in a belief in its monopoly of wisdom in its zeal for administrative efficiency, overstep the bounds of its power and spread its tentacles into the domains where the citizens should be free to enjoy the liberty guaranteed to him by the constitution.”

From the  above citation it can be said that the since the independence till today very less efforts have been made to evolve a mechanism to regulate the functions of administrative authorities so as to make them in consonance with constitutional freedom guaranteed to each individual. Without some kind of power to control administrative authorities there is a danger that they may commit excesses and degenerate into arbitrary bodies.

Here the author has tried to put down some ground realities about the administrative system in India which needs to be rectified to make it civilly liable to the individual residing in India, also the author has compared the system of administration in India and in France to corroborate both and to find out a solution to present weaknesses, also the author has tried to study the system of Lokpal at the backdrop of administrative law.

Administrative Law in India- Birds eye view

There has not been so far much conscious effort on the part of Government and Parliament in this Country to develop a viable system of administrative law drawing a balance between personal rights and freedoms, on the one hand, and administrative needs and exigencies of a developing social welfare state, on the other.

In England and USA, such attempts have been made from time to time, but in India attempts in this direction are, by and large, lacking so far and, therefore, a huge burden has been cast on the judiciary to give shape to the principles by which administrative functioning and behavior can be regulated keeping in view the twin objectives mentioned above. Since independence it has become necessary to re-condition and develop the principles of administrative law, so as to meet the needs of a democratic them with the demands made on a country to develop fast in te socio-economic sphere.

Since commencement of the constitution the most commonly used technique to bring an administrative action within the cognizance of the courts has been the writ system (Art. 32 & 226). Innumerable cases have taken place in this area and hundreds of cases continue to be filed against the administration every year for seeking its redress. The writ jurisdiction conferred on the High Courts by Art. 226 can be invoked to enforce not only fundamental rights but a non-fundamental rights as well. The High Courts and Supreme Court steep in to correct the error where the rules framed under the governing law do not conform to the law or the action of the administrator is not in accordance with the administrative rules or are against the fundamental axiom of justice and fairplay.

However remedy is available at the disposal of the court of law. No fixed, codified laws are been framed to decide the dispute between individual and public official. Also the question remains that-In what cases do the courts feel that redress to complainants is called for? - Provisions which may be invoked for the purpose of bringing matters before the court? – The types of relief which the court may give? – The grounds on which, & the conditions subject to which, the various reliefs may be given by them? As well as the question whether a particular administrative action infringes a fundamental right or not and therefore, whether a petition under Art. 32 to challenge it is maintainable or not, down at times raise complex issue. The classic case on the point is Ujjam Bai[1] . The courts have also, however, evolved self imposed restrictions. Matters which effect policy and require technical expertise, the High court would leave such matters for decision to those qualified to redress this issue[2].

The Government of India are contemplating to set up administrative tribunals on the French Model for disposal of cases relating to fiscal and labour laws.

French Administration

France has developed a system of administrative tribunals distinct from the ordinary courts which have no jurisdiction on the administration. Droit administratif is the name given to the Administrative Law prevailing in France. In this system the judicial power is kept separate from administrative power. A person seeking any redress against the administration has to go to an administrative court and not to an ordinary court. Thus the system of droit administrative in France has resulted in non-interference by the Courts in the working of administrative authorities.

A.V. Dicey defines the term Droit administrative, as that portion of the French Law which determines-

a) the position and liabilities of State officials,

b) the rights and liabilities of private individuals in their dealings with officials, and

c) the procedure by which these rights and liabilities are enforced.

Administrative Law in France observes William Bennet Munro, may be defined as a system of jurisprudence which, on the one hand, relieves public officials from amenability to the ordinary court and, on the other, sets up a special jurisdiction to hold them accountable.

Droit administrative, as it exists in France, observes Dicey, “is not the sum of the powers possessed or of the functions discharged by the administration; it is rather the sum of the principles which govern the relation between the French citizens, as individual, and the administration as the representative of the State. The most significant aspect of Droit administrative is that the ordinary courts exercise no control over the administration which is supervised instead by administrative tribunals. These are independent bodies. All tribunals are subject to the supervision of Conseil d’Etat which acts as  the Court of Appeal from all administrative tribunals.

The Conseil d’Etat[3]  has been characterized as the ‘bulwark of civil liberties’ and also the ‘guardian of administrative morality’. The system has come to be regarded as providing as effective protection to individual rights against the despotism of public administration. The judges of Conseil d’Etat possess a high degree of administrative expertise and so they are better able to control the administration than the ordinary courts where the judges are generalists and lack expertise in the administrative action is peripheral and lacks depth.

The most outstanding contribution made by France to legal science has been separate system of administrative jurisdiction and administrative law created by Conseil d’Etat.

Need for Establishment of a similar Institution in India-

It is true that the establishment of an institution similar to Conseil d’Etat in France may not be quite suited to the conditions in India. However it is necessary to develop administrative courts n the lines of the French Conseil d’Etat would be necessary because that  will serve as counterpoise to the arbitrary action of the administration.

The creation of separate hierarchy of administrative courts brings about a clear division between the spheres of civil and administrative law. There are separate law reports in both the branches of law. In India there is expansion of the public sector and the State is assuming increasing control over the life of the community. There is a move for building as equalitarian society. In this context, it is desirable that India should develop a well ordered system of administrative law which may be able to absorb the new relations of public into this legal system.

The Indian administrative law while basically common law oriented as the Administration is subject to judicial control, has also imbibed some features of droit adminstratif as is evident from the increasing tribunalisation of the decision making process.

Skeptical view on Lokpal(would be Ombudsman system in India)

At the backdrop of above discussion here the author took the opportunity to discuss in brief the concept of Lokpal as far as Indian scenario is concerned. The cry for the establishment of Lokpal in India how much is feasible?, what repercussions it could attract? etc are the related issues need not to discuss here. The author wants to focus on the point that instead of establishing single body viz. Lokpal it would be more beneficial and rational to establish administrative court system in India on the line of French droit administrative and other such practices which will help to improve administration.

No Lokpal Please!

Why lokpal system is not suitable to India, following are some of the reasons. The primary idea of the Ombudsman in the Scandinavian and the Common law countries where the institution has been introduced is to oversee maladministration e.g., negligence, delay, inefficiency, bias, abuse of power and to make the administration more humane and accountable.

However in India all these aspects are lacking. The system of Lokpal (thought for) is meant only for investigating into charges of corruption against public officers at high offices. Maladministration which is the primary concern of the ombudsman in other countries was thus proposed to be kept out of the purview of the Indian ombudsman. This is not proper.

It has been suggested that, so far, the institution of ombudsman has succeeded only in countries with small population and that in a populous country like India, the ombudsman may be overwhelmed with complaints of maladministration and allegations against the administration.

 

What to do?

There is a great need for an institution, independent of the executive, to supplement the system of judicial control over administrative action in view of the limitation of judicial review so as to reduce the sense of grievance presently nursed by the people against the administration.

In the long run, however, it is necessary to improve the tribunal system in India so that tribunal can provide an effective review-mechanism of administrative decisions. To the extent, the need to resort to the Lokpal would be reduced. Also it has been it has been the experience of the ombudsman in other countries that many grievances against the administration are arises because of the failure of the administration to give reasons for the decisions taken by it and that if reasons are given as a matter of course then the number of complaints may be reduced. It will be a great advantage to the individual affected by an administration, were to disclose to him the reasons for acting in the way it is acting. He can then decide whether he should challenge the action or not in a court of law.

Many challenges to administrative action are made at present because the individual affected, being ignorant of the reasons, does not know whether the action suffers from some flaw or not.

In the area of quasi judicial adjudication, an obligation to make speaking order has come to be imposed on the concerned bodies. A similar development is a desideratum in the area of administrative powers. The Conseil d’Etat in France has gone far in the direction of requiring administrative decisions to contain reasons.

Therefore, if the administration in India were made to adopt the practice of furnishing reasons for its decision to a person feeling aggrieved by it, then the number of complaints flowing to the ombudsman may be reduced and become manageable.

In any case, there is a great need to supplement the existing mechanism to supervise administration in India, and the experiment of the ombudsman is worth a trial. It is bound to result in the improvement of administrative individuals dealing with the administration.

 

References

Principles of  Administrative law – M P Jain and S N Jain, 6th Edn. 2010 LexisNexisButterworths Wadhawa Nagpur

 

Comparative Law – M P Tondon

 

Constitutional law of India- M P Jain and S N Jain

 

Ujjam Bai v State of Uttar Pradesh, AIR 1962 SC 1621

 

Federation of Railway Officers Association v Union of India, AIR 2003 SC 1344

[1] Ujjam Bai v State of Uttar Pradesh, AIR 1962 SC 1621

[2] Federation of Railway Officers Association v Union of India, AIR 2003 SC 1344 (para 44) see also Art. 329- Election disputes, Art. 363- disputes arising out of treaties, International Agreements.

[3] In France, the Council of State (French: Conseil d'État) is a body of the French national government that provides the executive branch with legal advice and acts as the administrative court of last resort. The Council is primarily made up of high-ranking legal officers.

Mr. Mahendra Subhash Khairnar

Asst. Prof. Bharati Vidyapeeth’s Yashwantrao Chavan Law College, Karad


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