LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More


“Administrative Reformulation - Need to change Human Rights Jurisprudence in India

Chunk points:

Reasons for changing Human Rights jurisprudence-

a. Infringements of civil rights by administrative actions

b.  Executive arbitrariness

c. Misuse and abuse of administrative discretion

d. Pendency of cases/matters before courts/tribunals-delay in disposal hampers right to speedy justice

e.  Insufficiency of remedy against administrative arbitrariness- i.e. Writ however it often suffers from –impracticability, expensive, time consuming, rigidity, etc.

Solution-

a. Specialized Court System-

b.  Administrative Court System, parallel to Regular Civil court system in India

How it can be done-

a. Passing separate legislation to constitute administrative court

b. Establishment of court since Taluka to Supreme Court level

c. Court will be presided over by Judicial and Administrative Personnel

d.  Separate Bench at High Court and Supreme Court to try appellate cases

e.  Existing infrastructure of Regular courts can be used

f. Jurisdiction - Disputes/Matters disputes between a citizen and administrative authority of State 

Hurdles and Challenges-

a. Constitutionality of Administrative Court System in India

b. Jurisprudential complexities between Continental and Anglo-saxon jurisprudence

Research / Solution on hurdles-

a. As far as Constitutionality of Administrative Court System is concerned – we have already adopted the system, sort of, in the form of Art. 323 A and Art. 323 B as well as we have established Administrative Tribunals. What more is needed to be done is to increase the jurisdiction over disputes between Authority and Citizen regarding infringement of civil rights.

b. Separate Bench at High Court and Supreme Court to try appellate cases in such matters will also preserve the constitutional status of HC & SC.

c.  Instead of mingling in complexities of Continental & Anlgo-saxon jurisprudence, it will be better to concentrate more on Human Rights Jurisprudence. We do follow Anglo-saxon jurisprudence wherein we emphasize more on ‘precedents’ which lacks in ‘Continental jurisprudence’. But now it is high time to change the views and take more care of civilized system of society and to preserve Civil rights by keeping administrative authorities within bound & under proper surveillance.

This is the time to inculcate democratic principles vehemently through Human Rights Education and value development in society.

 

Introductory view

Jurisprudence involves the study of general theoretical questions about the nature of law and legal systems, about the relationship of law to justice, morality and about the social nature of law. Jurisprudence, as a philosophy of law attempts to correlate with Social values and provides practical solutions by way of fusion of facts, justice and value. The people of this world have formed certain ideas and conceptions about the nature of justice and law[1]. Jurisprudence is the name given to a certain type of investigation in to Law. In jurisprudence we are concerned with reflecting on the nature of legal rules, on the underlying meaning of legal concepts and on the essential features of legal system.

Role of State

The state was established to meet the needs of the individual and society, and hence it has to discharge properly obligations expected of it. The proper functioning of the state depends upon a well-organized system of duties and rights. It should also promote the health of the individuals, spread education and discharge other functions, political social and economic for developing the personality of the individual.

India is a country which has accepted the notion of Welfare State. It means the country has accepted the liability towards securing the public welfare and to sub-serve the interest of all citizens. However incidences were happen where the state has fall short in discharging its liabilities towards satisfying the needs of victims and to compensate them. When incidences of violation of legal rights of an individual happens and for which no immediate relief is provided the law of tort comes to help.

No civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner, as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above the law as it is unjust and unfair for a citizen to be deprived of his rights or liberties illegally by negligent act of officers of the State without any remedy. The State is a juristic person, propounded in nineteenth century as sound sociological basis for State immunity, the circle has gone round and the emphasis now is more on liberty, equality and the rule of law.

The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government on a par with any other juristic legal entity. Any watertight compartmentalization of the functions of the State as “sovereign and non-sovereign” or “governmental and non-governmental” is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for the sake of society and the people, the claim of a common man or ordinary citizen cannot be thrown out, merely because it was done by an officer of the State; duty of its officials and right of the citizens are required to be reconciled, so that the rule of law in a Welfare State is not shaken.


Changing Human Rights jurisprudence – Set in motion

The Supreme Court in Consumer Education & Research Center V Union of India[2], held that the remedy of writ under Article 32 and 226 of the Constitution of India being available to petitioners for cases involving violation of their fundamental rights, the protection of these rights cannot be thwarted by accepting sovereign immunity as a defense for the State in such cases.

The emerging judicial trend clearly reflects the widening dimensions of State liability thereby rendering the difference between sovereign and non-sovereign functions redundant in the modern welfare state. The doctrine of sovereign immunity emanating from British legacy has been put down by the higher Courts through their epoch-making judgments over the past few years. It speaks for judiciary’s concern for establishing ‘Rule of Law’ in true sense of the term and its anxiety for extending protection to people’s right against tortious acts of the State and its authorities.

Art. 21 and liability doctrine

The cases of Rudul Shah[3], lead to inference that the defense of sovereign immunity is not available when the state or its officers acting in the course of employment infringe a person’s fundamental right of life and personal liberty as guaranteed by the Art. 21 of the Constitution of India. The supreme Court cases discussed above did not refer to the doctrine of sovereign immunity or the case of Kasturilal[4] on which the following submission was made: “It is submitted that, that case (kasturilal) even if not overruled can be distinguished on the ground that it did not consider the nature of liability of the state when there is deprivation of fundamental right.”


Liability and Art. 300 of the Indian Constitution

The law in India with respect to the liability of the State for the tortious acts of its servants has become entangled with the nature and character of the role of the East India Company prior to 1858. It is therefore necessary to trace the course of development of the law on this subject, as contained in article 300 of the Constitution. Sec. 65 of the Government of India Act, 1858, which is the parent source of the law relating to the liability of the Govt. provided that; ‘All persons and bodies politic shall and may have and take the same suits, remedies and proceedings, legal and equitable against the secretary of state for India as they could have done against the said company’. This provision was continued by the succeeding Govt. of India Act, 1915, Sec. 32, Govt. of India Act, 1935 Sec. 176 (1) and is also continued by Art. 300 (1) of the Constitution of India.[5]

Administrative Reformulation

Functions dischargeable by the administration may either be ministerial[6] or discretionary[7]. The need of discretion arises because of the necessity to individualize the exercise of power by the administration, because of the complexity of socio-economic conditions which the administration in modern times has to contend with.

However, if complete freedom of action is given to the administration it would lead to the exercise of powers in an arbitrary manner seriously threatening individual liberty. It is therefore, necessary to control discretionary powers, to restrain it from turning into unrestricted absolutism[8].

The accountability of executives and administrative authorities should be the essence of modern law. Replacement of losses in the form of compensation should be the dominant theme of modern legal actions and this can be best achieved by adopting the policy of social insurance for distribution of losses[9]. The development of ‘constitutional tort-law’ through expanding dimensions of Article 21 of the Constitution of India relating protection of life and personal liberty of persons and evolution of PIL[10] writs have substantially contributed to the development of compensatory jurisprudence in the Indian legal system. The judiciary no longer permits the State and its executive authorities to justify their wrongful acts in the name of State immunity. It would be no exaggeration to say the doctrine of State’s sovereign power has lost its credence in the new millennium and the real sovereignty now vests in the people of India.

 

Concluding remarks

Given this importance of tort law, and given the vast role that the State performs in modern times, one would reasonably expect that the legal principles relating to an important area of tort law, namely, liability of the State in tort, would be easily ascertainable. However, at present, this ideal is not at all achieved, in reality, in India. It is for this reason that the author has considered it necessary to consider the subject and to suggest certain reforms following the analytical and critical research in the area.

 

Mr. MAHENDRA SUBHASH KHAIRNAR,

Assistant Professor, Bharati Vidyapeeth’s Yashwantrao Chavan Law College, Karad

[1] Jurisprudence by Prof. Nomita Aggarwal, Central Law Publications, 2010, pg 1

[2] AIR 1995 SC 922

[3] Rudul Shah v State of Bihar, AIR 1983 SC 1086, Sebastian M Hongray v Union of India, AIR 1984 SC 1026, Bhim singh v State of J& K , AIR 1986 SC 494 and SAHELI a Women’s Resource Centre v Commissioner of Police, Delhi, AIR 1990 SC 513

[4] Kasturilal v State of Uttar Pradesh,(1965) 1 SCR 375 

[5]NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION, A Consultation Paper* onLIABILITY OF THE STATE IN TORT,  This Consultation Paper on “Liability of the State in Tort” is based on a paper prepared by Shri P.M. Bakshi, former Member, Law Commission of India, New Delhi, for the Commission

[6] Ministerial function is one where the relevant law prescribes the duty to be performed by the concerned authority in certain and specific terms leaving nothing to the discretion or judgment of the authority.

[7] At the discretion of the authority

[8] Principles of Administrative Law, M P Jain & S N Jain, 4th Edn. 2003, pg 550

[9] Dr. N. V. Paranjape, Law of Torts consumer protection in India, Central Law Agency, 2010 at pg. 120

[10] Public Interest Litigation, filed under Article 32 to Supreme Court & under Article 226 to High Court


"Loved reading this piece by mahendra khairnar?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"






Tags :


Category Others, Other Articles by - mahendra khairnar 



Comments





update
Post a Suggestion for LCI Team
Post a Legal Query