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S3ITS A,AINST ,OVERNMENT
I) C$ntrat%al Lia&ilit4 $* t! ,$!rnm!nt- Articles 8G1, 8GM, 8GG and C99 o the
constitution o India, deal with the contractual lia%ilit# o the :overnment. Art 8G1 provides
or succession %# the present :overnments o the ?nion and the states the propert#, aspects rights lia%ilities and o%ligations vested in the ormer :overnment. Art. 8GM authorizes the :overnment to enter into contracts or the purpose o carr#ing out o the unctions o the State. Article 8GG provides essential ormalities which a :overnment contract must ulfll and Article C99 deals with the procedure and the manner in which suits or proceedings against or %# the :overnment ma# %e instituted.
5lause (B) o Article 8GG which contains the essential ormalities which i government contract must ulfll provides as under*
"All 5ontracts made in the e$ercise o the e$ecutive power o the ?nion or o a state shall %e e$pressed to %e made %# the resident or %# the :overnor o the State, as the case ma# %e, and all such contracts and all assurances o propert# made in the e$ercise o that power shall
%e e$ecuted on %ehal o the resident or the :overnor %# such person and in such manner as he ma# direct or authorize+.
In hawardas pherumal and another vs. ?nion o India, BG>> the onH%le Supreme 5ourt has o%served ! "It is well settled that governments can onl# %e %ound %# contracts that are
entered into in a particular wa# and which are signed %# the proper authorit#.
It should %e noted here that a :overnment contract in order to %e valid must also ulfll the re/uirements o section B9 o the Indian 5ontract Act which deals with the essentials o a valid contract, %eside ulflling the re/uirements o Art, 8GG (B) o the constitution. Similarl#
sections EC, E1 o the Indian 5ontract Act which contain the rinciples or determining the /uantum o damages also appl#.
II) Aliati$n $* t! d$trin! $* "ai!r t$ t! ,$!rnm!nt
$ntrat-Since the re/uirements o Art, 8GG are mandator#' these cannot %e waived %#
the :overnment.
0riil!#!s $* t! ,$!rnm!nt %nd!r t! Ciil 0r$!d%r! C$d! and Eid!n!
At-?nder 5ivil rocedure 5ode, the privilege availa%le to the :overnment as compared to an individual is under section M9 o the 5ivil rocedure 5ode
according to which no suit shall %e instituted against the :overnment or against a pu%lic o@cer in respect o an# act purporting to %e done % such pu%lic o@cer capacit#, until the e$piration o two months ne$t ater notice in writing in the manner provided in the section.
III) Lia&ilit4 $* t! ,$!rnm!nt *$r T$rt- ;nglish law!he immunit# o the 5rown rom an#
civil 5riminal lia%ilit# is %ased upon an ancient and undamental principle o the ;nglish 5onstitution that "he =ing can do no wrong+. ;arlier an action or a personal wrong will not lie against the soverei gn. As such the crown cannot %e sued or the tortuous acts o its servant.
Indian Law. In India the lia%ilit# o the :overnment or the torts o their servants was La"
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accepted /uite earlier than in ;ngland. In p. T o. Steam 0avigation 5o. 7s. he Secretar# o
State or India it was held that the :overnment is lia%le or the tortuous act o its servants.
Class -LL.B (HONS.) IV SEM.
According to Article C99 o the Indian 5onstitution, the :overnment o India and a State :overnment ma# sue and %e sued in relation to their respective a-airs in the lie cases as
?nion o India and the corresponding rovinces or Indian Sates might sue or %e sued i the constitution had not %een passed.
In =asturi Lal vs. State o ?.., the Supreme 5ourt o%served!
"I a tortuous act is committed %# a pu%lic servant and it given a rise to a claim or damages, the /uestion to as was a tortuous act committed %# a pu%lic servant in discharge o
statutor# unction which are preera%le to, and ultimatel# on %ased on the delegation o the sovereign powers o the state to such pu%lic servantW I the answer a@rmative, the action or damages or loss caused %# such tortuous act will not lie, on the other hand i the tortuous act has %een committed %# a pu%lic servant in discharge o duties assigned to him not %#
virtue o the delegation o an# sovereign power, an action or damage would lie. he act o
pu%lic servant committed %# him during the course o his emplo#ment is, in this categor# o
cases, an act o a servant who might have %een emplo#ed %# a private individual or
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73DICIAL REVIEW
I) '%diial R!i!" in En#land- In ;ngland the administrative law is concerned with the actual woring o the government machiner# and the greater part o it has never come %eore the courts or interpretation. Ater the passing o the Administrative o Justice (3iscellaneous
rovisions) Act, BGCM, does not alter the principles o law upon which prerogative writs were issued.
II) '%diial R!i!" in
India-In India-India the 5ourts occup# e# position as regards the &udicial control o
administrative action. ur 5onstitution guarantees certain undamental rights enumerated in Articles BC to C> o the 5onstitution. hese rights provide a limitation on the legislative and e$ecutive powers as well as some e-ective dimensions o control over administrative discretion.
he 5onstitution o India contains e$press provisions or &udicial review o
legislation as to its conormit# with the constitution unlie in America where the Supreme 5ourt has assumed e$tensive powers o reviewing legislative acts under over the widel# inter prated "due process+ clause in the Fith and
Fourteenth Amendments. I, when the courts in India ace up to such important and none too eas# tas, it is not out o an# desire to tilt at legislative authorit# in a crusderHs spirit %ut in discharge o a plainl# laid upon them %# the 5onstitution.
In India the Judicial 2eview o administrative actions alls into three distinct heads!
(i) u%lic law review which is e$ercised through writs GFor Detail please reer last preceding chapter).
(ii) Statutor# review which ma# %e either %# wa# o!
(a) Statutor# appeals' and
(%) 2eerence to the igh!5ourt or statement o case.
(i) rivate Law review which is e$ercised through suits or damages, in&unctions.
Again where the decisions o administrative %odies are purel# o administrative nature, the scope o &udicial review is limited %ut it is not so where the decision o /uasi!&udicial nature. Judicial review o /uasi!&udicial action o administrative authorities has %ecome o greater importance or the reason that there has %een a tremendous increase o &udicial unctions o administrative authorities.
III) ,r$%nds *$r R!i!" $* O%asi-l%diial Ord!r- he /uasi!&udicial orders o an administrative authorit# can %e reviewed on the ollowing grounds
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I7) E2l%si$n $* '%diial R!i!"- it should %e noted that &udicial review o an administrative action ma# %e e$cluded %# legislation. An administrative action cannot %e reviewed &udiciall#!
(a) here the statutes provide such administrative act or decision as fnal or, conclusive' (%) here the same result is sought to %e achieved more directl#, %# a negative provision
%arring particular remedies or providing that such administrative action or decision shall not %e lia%le to %e /uestioned in an# court or in an# legal proceeding.
7) ;$press 4ar or e$clusion o &urisdiction o courts!
(i) W!r! t! tri&%nal "as n$t r$!rl4 $nstit%t!d
(ii) W!r! t! tri&%nal as a&%s!d its $"!r %nd!r t! stat! &4 atin# in i$lati$n $* its
r$isi$ns
(iii)W!r! t! stat%t! r$idin# t! <nalit4 la%s! is its!l* %n$nstit%ti$nal-Ra4ala S!na
$nstr%ti$n s. D4. C. T. O.
(i)W!r! t! tri&%nal as at!d in !2!ss $* its '%risditi$n $n*!rr!d %$n it %nd!r t!
stat%t! $r "!r! it "as $st!nsi&l4 *ail!d t$ !2!ris! a $t!nt '%risditi$n.
() W!r! t! tri&%nal as &as!d its d!isi$n artl4 $n $n'%r!s: s%rmis!s and s%sii$%s-(i)W!r! t! tri&%nal #a! a d!isi$n $* *at &4 $nsid!rin# mat!rial "i is irr!l!ant t$
t! !n;%ir4 $r &4 $nsid!rin# mat!rial "i is art4 r!l!ant and artl4
irr!l!ant-Dira'lal ,irdari Lal s. C$mmissi$n!r $* In$m! Ta2: B$m&a4
(ii) W!r! t! d!isi$n is #i!n in i$lati$n $* t! rinil!s $* nat%ral '%sti! a%sin#
s%&stantial and #ra! in'%sti! t$ arti!s.
$r r!*!r!n!
-In C$r$rati$n $* Cal%tta s. Cal%tta Tram"a4s it has %een held that where a statute which contained a fnalit# clause, imposed an unreasona%le restriction upon the undamental right guaranteed under Article BG (B) (g), then such statute will %e struc down.
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VI) Cas!
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-I) 0%&li
C$r$rati$n-"he pu%lic corporation is a h#%rid organism, showing some o the eatures o a :overnment department and some o the eatures o a %usiness compan#, and sanding outside the ordinar# rame wor o 5entral or Local :overnment+.
A$rdin# t$ ,ARNER8
"he modern pu%lic corporation is a compromise %etween nationalization and private enterprise' the institution is essentiall# an instrument devised o administering some particular enterprise in the pu%lic interest.
he pu%lic corporation are Semi!:overnment autonomous %odies, primaril# concerned with managerial, commercial and industrial enterprises and run various pu%lic utilities which the state does not choose to run departmentall# as it normal
:overnment unction.
I X tion ma# %e
Ess!ntial !at%r!s $* %&li C$r$rati$n
(i) Statutor# pu%lic corporation is created %# a statute which la#s down its rights, duties and o%ligation. An# act o such pu%lic corporation out side the authorized area o operation shall %e ultravires and cannot %ind the
corporation. Such ultravires acts cannot %e ratifed.
(ii) It is wholl# owned %# the state
(iii)It has a separate legal entit# and such it can use or %e used, enter into contract or ac/uire propert# in its own name.
(iv)u%lic corporation is largel# autonomous in fnance and management
e$cept or appropriation to provide capital or to cover losses. It has unds o its own and is authorized to use and re!use its revenue.
(v) A pu%lic corporation is generall# e$empted rom most regulator# and prohi%iting statutes applica%le to e$penditure o pu%lic unds.
(vi)It is ordinaril# not to the %udget, according and audit lams and procedures applica%le to non!corporate agencies.
(vii) A Statutor# pu%lic corporation is a HstateH within the defnition o the term in Article B8 o the constitution and such, it is su%&ect to the writ &urisdiction o the Supreme 5ourt and igh 5ourts under Articles C8 and 88 o the constitution.
(viii) In ma&orit# o the cases, the emplo#ees o pu%lic corporations are not civil servants. he# are appointed and remunerated under the terms and
conditions which the corporation determines itsel.
(i$)A pu%lic corporation however, is not a citizen within the meaning o art II o
the constitution and as such cannot claim the undamental rights given in Article BG o the constitution ! Stat! Tradin# C$r$rati$n $* India Vs.
C.T.O.
u%lic corporation can not en&o# the privilege o the :overnment to withhold the document.
II) Ess!ntial !at%r!s $* %&li C$r$rati$n- he essential
eatures o a summarized as under!
03BLIC
Class -LL.B (HONS.) IV SEM.
III) C$mm$n !at%r!s $* %&li $r$rati$n- he ollowing are the common eatures o
the constitution o pu%lic corporations, though ever# pu%lic corporation is di-erent in matters o its constitution.
(i) he pu%lic corporations are identical in their constitution. ;ach has a governing %od#, esta%lished %# a constituent statute, consisting o a chairman and a defned num%er o mem%ers.
(ii) he pu%lic corporations are largel# autonomous I fnance and management. he# have their own separate accounts, which are audited %# /ualifed auditors. he audition reports are pu%lished annuall# together with the general report to the activities o the corporation.
(iii)Some pu%lic corporations are e$pressl# re/uired %# their constituent statutes to act or and on %ehal o the crown' other can act onl# on the directions o a
specifc minister.
In India, the pu%lic corporations were set up ater independence and have %een give constitutional recognition.
IV) C$nstit%ti$nal 0$siti$n $* 0%&li C$r$rati$ns- he 5onstitution o India recognizes the pu%lic corporations. Article BG () o the constitution. Su%classes (8) o Article BG () provides that the state can mae law relating to the carr#ing on the state or %# corporation, owned or controlled %# the state, o an# rade, %usiness, industr# o service, whether to the e$clusion, complete or partial, o citizens or otherwise.
V) Classi<ati$n $* 0%&li C$r$rati$n- houghts, no e$act classifcation is provided, the statutor# pu%lic corporations ma# %e classifed as under*
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Classi<ati$n $* 0%&li C$r$rati$n
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VI) 0arliam!nt C$ntr$l
- he arliamentar# 5ontrol is implied in statutor# corporation as the# owe their origin and continued e$istence to a statute passed %# the arliament. he initial control is e$ercised at the tie when the %ill proposing the creation o a statutor# corporation is introduced or discussion in the ouse. he ollowing process has %een adopted or controlling the corporation*
(i) L!#islati$n- he arliamentar# control %egins with the ver# Act o Legislation which
%rings the corporation into e$istence.
(ii)La4in# $* r%l!s and r!#%lati$n- he parliament supervises the statutor#
corporations though the process o la#ing o rules and regulations on the a%le o
ouses as some o the Acts %ringing up the pu%lic corporations provide that the rules made the under these Acts are to %e laid %eore the arliament.
(iii) K%!sti$n- ?nder rule C8 o the rules procedure o the Lo Sa%ha the frst hour o
ever# sitting shall %e availa%le or the /uestion!answer, unless the speaer directs otherwise. In this period the 3em%er o the arliament ma# /uestion regarding the state o a-airs o an# statutor# corporation.
(i) R!s$l%ti$n- Discussion the matters relating to pu%lic corporation ma# occur through the medium o resolutions in the arliaent
()M$ti$ns- 3otions provide the general orm o discussion o matters related to a pu%lic corporation.
(i) 0arliam!ntar4 C$mmitt!!- he arliament constituted the committee on pu%lic undertaing in BG1. rior to the esta%lishment o arliamentar# 5ommittee, tch ;stimates 5ommittee and the u%lic Accounts 5ommitted were looing ater the pu%lic undertaingHs a-airs. It should %e n oted that a 3inister cannot %e a mem%er o
this arliamentar# committee.
he general :overnment control over theworing o the pu%lic 5orporation is highl#
desira%le to ensure the a-airs o the statutor# corporations are %eing conducted in the
%est interest o the societ#. he :oernemtn control over a pu%lic undertaing ma# %e conducted though an# or com%ination o the ollowing devices*
(i) 4# appointing the :overning 4oard and 3anagers o a pu%lic undertaing' (ii) 4# issuing general polic# directions
(iii)4# issuing specifc direction to the pu%lic undertaing.
(iv)4# participating in management as mem%er o the :overning 4oard.
4# instituting in/uires into the woring o the corporation under certain circumstances.
VIII) 7%diial
C$ntr$i-A stated a%ove, a statutor# corporation is a HStateH within the meaning o C$ntr$i-Article B8 o
the constitution o India and such it is su%&ect to writ &urisdiction o the Supreme 5ourt under C8 and o the igh!5ourt article under Article 88 o the 5onstitution.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
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I) C$nstit%ti$nal
R!m!di!s aaila&l! a#ainst an Administrati! ati$n- Article C8, BC, 88 and 88E o
Indian constitution provide strong powers to the 5ourts to control the administrative authorities i the# e$ceed their limit to do what the# should do, omit or a%use the powers given to them.
Art, C8 and 88 o the constitution provide remedies %# wa# o writs. ?nder Article C8 (8) the Supreme 5ourt o India is empowered to issue appropriate directions or orders or writs, including writs in the nature o ha%eas corpus, certiorari, mandamus, prohi%ition and /uo!
warranto which ma# %e appropriate. he fve writs specifcall# mentioned in Article C8 (8) a re
nown as prerogative writs in ;nglish law.
Artil! +- Article C8 provides a "guaranteed+ remed# or the enorcement o those rights, and this remedial right is itsel made a undamental right %# %eing included in art III. here there is no /uestion o the enorcement o a undamental right, Article C8 has no application.
Artil! 1F- ?nder Article BC o the constitution, the Supreme 5ourt is empowered to grant special leave to appeal against an order or determination o not onl# court o law %ut also o tri%unal.
Artil! ++F- ?nder Article 88, the igh!5ourt are empowered to issue directions, orders or writs including writs in the nature o ha%eas 5orpus, mandamus,
prohi%ition certiorari and /uowarrato or the enorcement o an# o the rights conerred %# art III o the constitution or or an# other purpose.
Artil! ++G- Article 88E gives powers o superintendence over all courts and tri%unal %#
the igh!5ourt thought the territories in relation to which the# e$ercise &urisdiction
'')D'*!iss#9&!i"!nAiiP!.++'8ndAtiP!9.+.
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CONSTIT3TIONAL REMEDIES
Artil! ++F Artil!
?nder this Article 5ourt ma# issue writs. +
Article 88 is not undamental right.
During emergenc# the resident o India cannot suspend this Article.
0o dou%t under Article 88 igh 5ourt ma#
issue writs. 4ut this &urisdiction is
discretionar# in nature thereore reed# ma#
%e reused also.
igh 5ourts no dou%t grant or issue writs even or the enorcement o undamental right #et it is not o%ligator# or them.
igh 5ourts ma# tae into consideration o
the e$istence o other ade/uate legal remed# and decline to issue a writ i there e$ist other ade/uate legal remed#.
?nder Article C8 Supreme 5ourt ma# issue writs.
Article C8 is itsel a undamental right.
Since Article C8 itsel is a undamental right thereore resident o India a# Suspend it.
Article C8 itsel is a undamental right and constitution has granted a undamental right to move to Supreme 5ourt in case o
%reach o undamental right.
In case o %reach o undamental right a person ma# invoe &urisdiction o Supreme 5ourt as a matter o right.
he Supreme 5ourt can not, on the ground o
the e$istence o an ade/uate legal remed#, decline to entertain a petition under Article C8 or the right to move the Supreme 5ourt
or the enorcement o the rights conerred
%# art III o the 5ourts is itsel a
guaranteed right.
Class -LL.B (HONS.) IV SEM.
III) T4!s $* "rits i) Ha&!as $r%s
Ha&!as $r%s is a latin term and it develop out o the prerogative writ o
a%su%&iciendum which literall# means to have the %od#+ and %# which the people could secure their release rom illegal.
he writ can %e issued on the application either!
(a) the prisoner himsel, or (%) an# person on his %ehal, or
(c) here the prisoner cannot act, then on the application o an# person who
%elieves him to %e unlawull# imprisoned.
W$ an al4 *$r t! "rit $* Ha&!as C$r%s- he writ o ha%eas corpus can %e made either %# the person detained or an# other person provided that he is not an utter stranger,
%ut is at least a riend or relative o the imprisoned person.
,r$%nds $* t! "rit $* Ha&!as C$r%s-As stated a%ove, the writ o ha%eas corpus is a process %# which a person who is confned without esta%lished procedure o law ma# secure a release rom his conerment. he ollowing grounds to see a remed# %# wa# o
ha%eas corpus!
(i) he person must %e confned'
(ii) petition or writ o ha%eas corpus ma# %e fled either %# the detenue or an# person who is not a stranger %ut is a riend or relative o the person detained hat the detention was malafde or or collateral purpose.
hat the order is deective e.g. misdiscription o detenue ailure to mention place o
detention etc.
hat the detainer has not applied his mind in passing the order o detention.
hat the ground supplied to the detenue was vague and indefnite.
hat the detention is illegal.
hat were was dela# in urnishing ground.
hat there was dela# in considering the 2epresentation.
hat orders o Detention is irregular.
R!*%sal $* t! "rit $* Ha&!as C$r%s
(i) here the prisoner is detained outside the &urisdiction o the igh!5ourt to which the application is made, the court will reuse the writ o ha%eas corpus.
(i) here the prisoner is detained outside the &urisdiction o the igh!5ourt to which the application is made, the court will reuse the writ o ha%eas corpus.