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COMPARATIVE PUBLIC LAW

Comparative law is the systematic application of the comparative technique, a
discipline and a method by which the values of human life are known and
evaluated. It is not a law in itself but a method of looking at legal problem, a
comparative approach to the study of laws and legal Institutions of two or more
countries. It is not a particular branch of law nor a subject but a process of study
of foreign laws in comparison with local laws.

It is a technique of looking one's own law through the mirror of

analogous laws of other countries. It is a process of gaining from the laws as
they obtain in foreign countries. It ascertains the differences and similarities in
the legal rules, principles and Institutions of two or more countries with a view
to finding solutions for local problems. It helps in establishing harmonious
relations with other countries. Comparative law, therefore, entails studying the
differences and similarities of different countries’ legal systems.
According to Professor Guttridge,
Comparative law is an unfortunate but Generally Accepted label for the
comparative method of legal study and research which has come to be
recognized as the best means of promoting community of thought and interest
between the lawyers of different nations and as an invaluable auxiliary to the
development and Reform of our own and other system of law "
THE HISTORY OF COMPARATIVE PUBLIC LAW
• The history of comparative law can be traced back to the medieval period
with significant development over the years due to its essentiality in
improving the justice system. Comparative law originated from Gottfried
Wilhelm, one of the German’s prominent scholars. In his book published
in 1667, he introduced the idea of classifying different legal systems
(Ehrlich, 2019). That means that different laws with various concepts
could be put in families. Therefore, today, there are basic levels of
classification in law. They include the source of the laws, their
development, and the role of courts. However, the theories of the
constitutional statues which encompass mots current laws started with
medieval ideas. It was the time where the government of consents begun.
Also, issues of political representation and the questions of the majority
influenced the idea of comparative law. It is also critical to consider
constitutional documents which were earlier on known as grants. The
theories are such grants that helped to determine famous cases that
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influenced other countries. For instance, grants formed the basis of a

famous case in America, and it still holds some essentiality in the British
Empire’s constitutional laws. Many factors have since motivated the
development of comparative law. One of the drivers for its adoption is the
need to utilise acquired knowledge during reforms. For other nations, it is
the need to build a standard system of jurisprudence that guides cases.
ORIGIN
Comparative law, as it is understood in the modern sense , was treated with
disfavour by jurist of antiquity. The Roman law itself did not provide any
incentive or stimulus to the development of comparative law because the former
was not the result of any process of comparison with foreign law. "The
corpus juris Civilis" which represented the roman law , contained law utterance
of the emperors and also the edict issued directly by them as head of the State,
or the rescripta, viz., answers returned by the parties in a suit or by magistrates.
The Romans described their legal system as consisting of two ingredients. " All
nations", says that the 'Institutional Treaties' who are ruled by laws and customs
, are governed partly by their own particular laws, and partly by those laws
which are common to all mankind. The law which a people enact is called the
Civil Law of that people, but that that which natural reasons appoints for all
mankind is called the law of Nations because all nations used it. "the part of the
law" which natural reason appoints for all mankind" was the element which the
edict of the praetor was supposed to have worked into Roman Jurisprudence.
Elsewhere it is styled more simply jus natural, or the law of nature and its
ordinances are set to be detected by natural equity as well as by natural reason.
the dominating influence in the development of medieval law on the continent
of Europe was influence of Roman laws as also the influence emanating from
the juristic school of Italy.
REASONS FOR STUDYING COMPARATIVE PUBLIC LAW
• Studying comparative public law enables practitioners to a deeper
understanding of the different legal systems. Hence, misspelling any
prejudice and misinterpretations may hinder the achievement of real
justice (Ehrlich, 2019).
• It also provides the basis for establishing bilingual legal dictionaries that
ease communication. The set language thus promotes a common
platform for intellectual exchange globally.
• The result of such interactions cultivates a culture of misunderstanding in
different nations. Also, it enhances international relations that eventually
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influence foreign policies. Comparing different legal systems also

broadens the horizons of law reformers. That way, they can adopt
effective rules that improve the justice system.
• Additionally, studying how different countries are meeting the upcoming
challenges is useful. For instance, a growing tendency to assign more
responsibilities to public organizations can be solved through
comparative public law. It can help in establishing ways of enforcing the
responsibility of state officials effectively.
• Studies have shown that the entire legal system is undergoing re-
examination in terms of reforms. However, most of the changes are
conducted by people who lack adequate knowledge about public law.
• Therefore, it is essential to entrust such duties to people who have
studied legal issues scientifically in the form of comparative law.
Overall, comparative law originated with the idea of classifying legal
systems.
• The concept has developed in new ways over the years. Law comparison
is critical for expanding knowledge, influencing justice, and promoting
international relations.
• Hence, there is a need to study comparative law to ensure effective
reforms in the legal system.
MEANING
• Comparative law is an academic discipline that involves the study of
legal systems, including their constitutive elements and how they differ,
and how their elements combine into a system.
• Several disciplines have developed as separate branches of comparative
law, including comparative constitutional law,comparative administrative
law, comparative civil law (in the sense of the law
of torts, contracts, property and obligations), comparative commercial
law (in the sense of business organisations and trade), and
comparative criminal law.
• Studies of these specific areas may be viewed as micro- or macro-
comparative legal analysis, i.e. detailed comparisons of two countries, or
broad-ranging studies of several countries.
• Comparative civil law studies, for instance, show how the law of private
relations is organised, interpreted and used in different systems or
countries.
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The purposes of comparative law are:

• To attain a deeper knowledge of the legal systems in effect
• To perfect the legal systems in effect
• Possibly, to contribute to a unification of legal systems, of a smaller or
larger scale
DEVELOPMENT
A) Development of Comparative Law in Nineteenth Century:
• The origin of Comparative law may at the earliest be traced from the
middle of the 19th Century. The historical school of thought did not
encourage development or study of Comparative Law. The era of
codification also did not improve matters. However, some work was done
in Germany by Feuerbach, Gans and Thibaut. In 1829 Mittermaier and
Zachariah started the legal review devoted to the study of foreign law.
• A Chair of Comparative Law was established in France at the college de
France, in 1832; a Chair of Comparative criminal Law was also
established in the University of Paris in 1846.
• In America there was hostility t anything which was associated with
English Law. Accordingly, natural law prevailed and was taken
inspiration from the writings of the French Jurists.
• Much of the pioneering work in regards to comparative was done in
England. Brarcton in his writing drew largely from Roman law. Still,
however, we do not find any advanced or "critical investigation of the
foreign rules or any real attempt to construct a synthesis." There was no
attempt to integrate the foreign law into English jurisprudence.
• In England the great achievement towards the development of
comparative was the publication of Maine's Ancient Law in 1861.
• Maine introduced a correlative method into the history of Institutions. He
confined his views to the in the Indo-European stocks of the races of
mankind. He was learned in English, Roman and Hindu law and also had
knowledge of Celtic systems, and this inculcated a scientific urge to
unify, classify and generalize evolution of different legal systems. He,
thus, as Dias has said, and rightly so, inaugurated both the Comparative
and anthropological approaches to the study of law, and the history in
particular which was destined to bear abundant fruit in the years to come.
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• In 1876 the French government established A committee on foreign

legislation attracted to the Ministry of Justice.
• In 1894 the Quaint Professorship of Comparative Law was established at
University College London. The in-Fe Droit International founded in
1873, also employed the comparative method in its investigation of the
problems connected with the private International Law.
• The English Society of Comparative Legislation was founded in 1895. in
France the societe de Legislation compare announced publication of its
Bulletin in 1869.
B) Considerations for Development of Comparative Law:
The development of Comparative Law hitherto was motivated by different
Considerations. For some, its value lay in the practical aspect, viz in the
utilization of the knowledge of acquired in the Reform and development of the
law in the country. This accounts for the growth of comparative legislation as
opposed to comparative law. for others, the underlying objective was the
building up of a common system of jurisprudence and discovery of the Abstract
notions of law; and yet for others its value lay in a historical sense. There was
also a current view that the Comparative Law was based on " certain common
principles which constitute the natural law with variable content ".
C) Movement Towards Unification of Private Law:
A movement towards unification of private Law was first mooted by the first
Congress of comparative law held in Paris in 1900. The idea of unification
received the great encouragement from the efforts of the league of Nations. The
various Government departments working under the aegis of the league of
nations accumulated a large quantity of material which is of permanent value to
comparative lawyers. In Rome, a subsidiary organ of the league of Nations, the
International Institute for the unification of private law was established at the
initiative of the Italians Government
D) Development in the Twentieth Century
The 20th century marks the realization that the policy of legal isolation is
not good policy and is not conducive to the growth of a unified law.
Various institutes have been established for the purpose of carrying on
researches in comparative studies. some of these institutes are attached to the
universities, while others are working independently.
The American foreign law Association was established in 1925. and published a
number of papers on foreign law and monograph on comparative topics.
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There has not been any marked development of comparative law in

Great Britain. The Chair of historical and comparative jurisprudence was
however, founded at Oxford in 1869. A Chair of Comparative Law was,
established at Cambridge. There is also the Quaint professorship of comparative
and historical law at University College, London. Research on the subject has
also been undertaken in the University of Manchester under the guidance of Dr.
Wortle. A brief resume of the origin and development of Comparative Law will
show that the position is not discouraging and its utility is being increasingly
realized. The atmosphere of indifference or suspicion found at its Inception is
gradually diminishing. Comparative Law is now now regarded as a branch of a
legal technique and learning.

UNIT 1-PUBLIC LAW AND PRIVATE LAW

ORIGIN OF PUBLIC LAW

The law began in Rome, and was based on the phrase “Publicum ius est quod ad
statum rei romanae spectat “, which means that public law is the one that deals
with Roman government, and was divided into three different types:
Sacred: it was the cult that the habitants gave to the gods, to their rites and
sacrifices.
Priests: it referred to their organization, functions and prerogatives.
Magistrate: it regulated the number, nature and attributions; the competence and
the organization of people’ s assemblies and senate.
Public law basically referred to government, organization and State functions,
and relations with individuals and other States. The rules that formed part of this
right could not be modified by agreement between individuals. The organs
belonging to the state were in charge to express people’ will, at that time,
Roman people.
History
• Public law originated in Rome and its development has been classified
into different periods ranging from the founding of Roman Empire to the
establishment of Justinian Empire.
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• In each of these periods, we can find particular characteristics that

distinguish them. There were four phases in public law history:
Archaic Roman Law: It goes from the foundation of Rome until the
promulgation of the laws of the XII Tables.
Pre classical Roman Law: From the promulgation of the Laws of the XII
Tables until the end of the Republic.
Classical Roman Law: From the end of the Republic to the empire of
Alexander Severus.
Post-classical Roman Law: From Alexander Severus to Justinianus.
Justinian Roman Law: The duration of Justinian’s Empire.
History of public law
• The distinction between public and private law was first made
by Roman jurist Ulpian, who argues in the Institutes that "public law is
that which respects the establishment of the Roman commonwealth,
private that which respects individuals' interests, some matters being of
public and others of private interest."
• Furthermore, he defines public law as the law
concerning religious affairs, the priesthood, and offices of the State.
Roman conceived of the law as a series of relationships between persons
and persons, persons and things, and persons and the State. Public law
consisted of the latter of these three relationships.
• However, Roman lawyers devoted little attention to this area, and instead
focussed largely on areas of private law. It was, however, of great
importance in Teutonic society, as noted by German legal historian Otto
von Gierke, who defined the Teutons as the fathers of public law.
• Drawing a line between public and private law largely fell out of favor in
the ensuing millennium, though, as Ernst
Kantorowicz notes, Medieval saw a concern with the Roman conception
of the res publica inherent in the legal fiction of the king's two bodies.
• However, legal philosophers during this period consisted largely
of theologians who operated within the realm of Canon Law, and were
instead concerned with distinctions between divine law, natural law,
and human law.
• The "public/private" divide in law would not return until
the 17th and 18th centuries.
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• Through the emergence of the nation-state and new theories

of sovereignty, notions of a distinctly public realm began to crystalize.
• However, the claims made by monarchs, and later parliaments, to an
unrestrained power to make law spurred attempts to establish a
distinctly private sphere that would be free from encroaching State power
in return.
PUBLIC LAW
Public law and private law are two wide areas of law that sometimes tend to
overlap when exercised.
Public law is the body of law which governs the exercise of powers of the
government and public authorities. It controls public agencies or bodies acting
in a public capacity and covers three main subdivisions: constitutional,
administrative and criminal law. Private law is a segment of law that governs
the relationships and disputes between the private citizens of the country. This
branch is responsible for regulating the peace between the citizens of the state,
including private companies. Public law is a segment of law that governs the
relationship between individuals and the state. This branch is responsible for
regulating and maintaining the peace between the citizens and the state or
government.
The body of law which govern the relationship between private individuals is
known as the private law. It covers various key areas of law; contracts, property,
equity and trusts, torts, succession and family law are the most imperative.
Thus, the main difference between public and private law is that the private law
governs relationships among citizens, and the public law governs the
relationship between individuals and the state.

What is Public Law

Public law administers the relationship between the government and
individuals. It comprises of standards governing the relationship between
various branches of the government and rules administering the relationship
between the government and people or private bodies. It comprises of
constitutional law, administrative law, and criminal law.
Constitutional law is related to the constitution of the country; it is especially
concerned with the three main branches of the government i.e. the legislature,
the judiciary, and the executive.
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Administrative law is the law governing the functions of the government, and
the role it plays for its citizens; this area of law regulates areas such as trade,
economy, public service, environmental protection, and taxation.
Criminal law is the law that is concerned with the punishment of offenders.
Certain wrongdoings pose a serious threat to the order of the society, and they
would be considered as violations/crimes against the society, and the state
brings such wrongdoers to justice by imposing sanctions to maintain the social
order.
The public law sets up the powers and obligations of governments and,
characterizes the rights and obligations of the people to governments. It is
believed that public law is an area intended to encourage and promote the
common good for the benefit of the community.
Generally, Public law tries to ensure the public interest of the general
population, since the abusing the public law would affect the community. The
sanctions imposed for violations are considered to be severe in nature. For
instance, the sanctions under the criminal law could vary from fines,
imprisonment to death penalty.
Its main characteristics are the following:
• It is one of the most specific branches of law because
it focuses on relationships between specific groups and individuals within
a society.
• It deals with issues that may affect a person within the public sphere.
• It involves links between a person and a state entity.
• Heteronomy and obligatory norms
• It is in opposition to private law
ILLUSTRATION:
If you saw a man run from a convenience store with a few pilfered products
under his arm, he is violating public law. He committed the crime of theft, and
that affects everyone.
CASE LAW
n Brown v. Board of Education, Linda Brown, the plaintiff (brought about by
her father, Oliver), contended that his daughter was not being protected under
the Constitution. Since Brown was suing the Board of Education, this falls
under constitutional law, but an administrative agency was sued for the
violation.
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Linda had to walk several blocks to the school bus stop even though a closer
whites-only school existed within a few blocks from her home. Brown's parents
believed that Linda's 14th Amendment rights were violated when she was
banned from a white school closer to home because of her race.
The case was won because the U.S. Supreme Court declared segregation a
violation of Brown's constitutional rights. This falls under public law because
issues of segregation and discrimination affect society as a whole, not just this
particular child.
Sources or principles of public law
These sources depend on each State, however, there are sources that are
applicable everywhere to maintain the legal order and these are:
• Legality principle
• Separation of functions
• Limiting principles of criminal law
• Due process
• Ignorant iuris non excusat
What is Private Law
The private law is the body of law which govern the relationship between
private individuals. Private law characterizes the rights and obligations of
people and private bodies, in their relationship among the either. It covers
various key areas of law such as contracts, property, equity and trusts, torts,
succession and family law.
The private law ensures the freedom of the people to pursue their aims/goals.
Here, the legal relations enable the parties to act freely in their private capacities
of private individuals.
The private law tries to secure just private interests/freedom of the individuals
in the community. Most of the remedies in private law are of a pecuniary /
monetary nature; the party who has infringed the law needs to pay some amount
of cash to the injured party and not to the state as determined by the courts.
These private law classifications of remedies/sanctions include,
Restitution: The party alleged to have breached the law will have to will have to
restore any matter to the /state condition as of the breach of law had never
happened.
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Damages/ Compensation: An amount for the actual damage or loss incurred

have to be paid, as determined by the court.
Returning enrichment: The party who has benefited unjustly (unjust
enrichment) has to pay back
Specific Performance: The party has to do or give up something, i.e. specific
performance of the breach.
ILLUSTRATION:
if your neighbour filed suit against you because your barbeque smoke travelled
to his yard, you may be violating private law. You infringed on your
neighbour’s right to peaceful enjoyment of his property.

DIFFERENCES BETWEEN PUBLIC LAW AND PRIVATE LAW

Private law applies to relationships between individuals in a legal system. e.g.,
contracts and labor laws. Public law applies to the relationship between an
individual and the government. e.g., criminal law.

III. Definition of Administrative Law

Administrative law deals with the legal control of government and related
administrative powers. In other words, we can define administrative law as the
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body of rules and regulations and orders and decisions created by administrative
agencies of government.
Administrative law is part of the branch of law commonly referred to as public
law, the law which regulates the relationship between the citizen and the state
and which involves the exercise of state power. So, it is a part of the legal
framework for public administration. Public administration is the day-to-day
implementation of public policy and public programs in areas as diverse as
immigration, social welfare, defence, and economic regulation—indeed in all
areas of social and economic life in which public programs operate.
Administrative law consists of complaints respecting government action that
adversely affects an individual. Thus, administrative law involves determining
the legality of government actions. There is a two-fold analysis: the legality of
the specific law itself and the legality of particular acts purportedly authorized
by the specific law.
Governments cannot perform any act by itself. Governments act through
government officials who must act within certain limitations. A government’s
power to act comes from legislation. Thus, government officials must act within
the parameters (or scope) of such legislation which give their actions lawful
authority. These are lawful actions. If government officials act outside the scope
of their lawful authority and individuals are affected by these acts, then the
principles of administrative law provide individuals with the ability to seek
judicial review of the administrative action and possible remedies for the
wrongful acts.
Nature and Scopes of Administrative Law
Administrative law determines the organization, powers and duties of
administrative authorities. The emphasis of Administrative Law is on
procedures for formal judgment based on the principles of Natural Justice and
for rule making. Administrative law also determines the nature and scope of the
powers deliberated to the government official by the specific legislation.
Through legislation, the Parliament delegate specific powers as well as duties to
government officials to enable them to act on behalf of the government.

The concept of Administrative Law is founded on the following principles:

a) Power is conferred on the administration by law
b) No power is absolute or uncontrolled howsoever broad the nature of the same
might be.
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c) There should be reasonable restrictions on exercise of such powers depending

on the situation.
The Administrative law deals with the structure, functions and powers of the
Administrative structures. 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 freedoms are damaged by their operations.
Administrative law specifies the rights and liabilities of private individuals in
their dealings with public officials and also specifies the procedures by which
those rights and liabilities can be enforced by those private individuals. It
provides accountability and responsibility in the administrative functioning.
Also there are specified laws and rules and regulations that guide and direct the
internal administration relations like hierarchy, division of labor etc.
General Principles of Administrative Law
In the administrative law context, the first step is to determine the legal validity
or authority of the action by the government official. This involves looking at
the basis of the legal authority to act, that is, the specific law that gives that
administrator the lawful authority to act. Constitutional law essentially deals
with who has the ability to make laws. Administrative law deals with the
government officials who have been empowered by these laws to act.
Therefore, there is a close relationship between constitutional and
administrative law. Specifically, if the law that empowered the government
official to act was itself found to be unconstitutional, and therefore invalid, then
any actions by the government official under that law will also be invalid.
Consequently, this may result in a legal remedy for an individual adversely
affected by this action.
IV.CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW
The relationship between constitutional and administrative law is complex. In
general, written constitutions tend to say relatively little about the
administrative state. General due process type considerations may apply
particularly to administrative agencies. More directly, of course, constitutions
control the administrative state through founding the structures of government,
providing chains of accountability and democratic legitimacy for the decisions
of administrative.
Though in essence constitutional law does not differ from administrative law
inasmuch as both are concerned with functions of the government and both are
a part of public law in the modern State and the sources of both are the same
and they are thus inter-related and complementary to each other belonging to
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one and the same family. Strict differentiation, therefore, is not possible, yet
there is a distinction between the two. According to Maitland, while
constitutional law deals with structure and the broader rules which regulate the
functions, the details of the functions are left to administrative law.
The orthodox understanding is that the fields of constitutional and
administrative law share similar purposes of protection of rights, control of
agency costs, and limitation of government. The primary difference, in this
view, concerns their place in the hierarchy of public law: constitutional law
regulates the highest norms of the state, while administrative law rules sub
legislative action, somewhat lower in the hierarchy of sources.
According to Hood Phillips, “Constitutional law is concerned with the
organization and functions of Government at rest whilst administrative law is
concerned with that organization and those functions in motion.” But the
opinion of English and American authors is that the distinction between
constitutional law and administrative law is one of degree, convenience and
custom rather than that of logic and principle. It is not essential and fundamental
in character. Keith Rightly remarks: “It is logically impossible to distinguish
administrative law from constitutional law and all attempts to do so are
artificial.”
According to Maitland, while constitutional law deals with structure and the
broader rules which regulate the functions, the details of the functions are left to
the administrative law. So, constitutional law deals with the general principles
relating to the organization and power of the legislature, executive and judiciary
and their functions inter se and towards the citizen, administrative law is that
part of constitutional law which deals in detail with the powers and functions of
the administrative authorities, including civil services, public departments, local
authorities and other statutory bodies. At the end, constitutional law is
concerned with constitutional status of ministers and civil servants;
administrative law is concerned with the organization of the service and the
proper working of various departments of the government.
V.DIFFERENCE BETWEEN ADMINISTRATIVE LAW AND
CONSTITUTIONAL LAW

Constitutional Law
1. Constitutional law is its own kind.
2. Constitutional law deals with various departments of the state.
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3. It deals with the structure of the state.

4. It is the highest law.
5. It gives the guidelines with regard to the general principles relating to
organization and powers of organs of the state, and their relations between
citizens and towards the state. It touches almost all branches of laws in the
country.
6. It also gives the guidelines about the international relations.
Administrative Law
1. Administrative law is a species of constitutional law.
2. It deals with those organs as in motion.
3. It deals with the functions of the state.
4. It is subordinate to constitutional law.
5. It deals in details with the powers and functions of administrative authorities.
6. It does not deal with international law. It deals exclusively the powers and
functions of administrative authorities.
Scope, Aims & Functions of Criminal Law
•That branch of public law instituted as a mechanism to protect society and the
individual against injuries that humans are capable of, and have shown
themselves to be capable of, inflicting on other humans and institutions.
•Proprietary Articles Trade Association v. Attorney General for Canada [1931]
A.C310at 324: “Criminal law connotes only the quality of such acts or
omissions as are prohibited under the appropriate penal provisions by the
authority of the state.”
• “a body of rules, that defines conduct prohibited by the government [State]
because it threatens or harms public safety and welfare, and that establishes
punishment to be imposed for the commission of such acts”. (West’s
Encyclopaedia of American Law)
•Criminal law is therefore concerned with acts or omissions that have been
prohibited by the state. It is the basis for violating a person’s liberty. i.e.,
justifies arrest.
•Defines prosecution, conviction and punishment of the accused.
Function of the Criminal Law
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Lord Wolfenden – 1957, Report of the Departmental Committee on

Homosexual Offences and Prostitution preserve public order and decency.
Protect the citizen from what is offensive or injurious. Provide sufficient
safeguards against exploitation and corruption of the vulnerable, young and
weak. Punish and penalise offenders.
ACCOUNTABILITY AND TRANSPERENCY
In a democracy, the principle of accountability holds that government officials
— whether elected or appointed by those who have been elected — are
responsible to the citizenry for their decisions and actions. In order that officials
may be held accountable, the principle of transparency requires that the
decisions and actions of those in government are open to public scrutiny and the
public has a right to access government information. Both concepts are central
to the very idea of democratic governance. Without accountability and
transparency, democracy is impossible. In their absence, voters are necessarily
ignorant in their electoral choices; elections and the notion of the will of the
people lose their meaning and government has the potential to become arbitrary
and self-serving.
What is Transparency?

Transparency is clarity and openness in actions. Especially when it comes to

various organizational bodies in the society, transparency is viewed as one of the
core values based on which customer credibility rises. If the policy frameworks
of an organization are not open, and if the organization fails to provide the
necessary information to various parties, such an organization is not trusted by
the customers.

Along with the advancement of technology and the widespread of the internet,
transparency among the public has heightened greatly. Critics, however, believe
that too much of transparency can also create problems in the society.

A good government has transparency

What is Accountability?

Unlike transparency which focuses on openness, accountability can be viewed

as a form of acknowledgment. This can simply be defined as being obliged to
explain actions or decisions. It is taking responsibility for one’s actions.
Accountability operates on a number of levels in the society starting from the
individual level and extends till the institutional level. Within organizations,
accountability is usually considered as one of the ethics of employees.
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For example, a group leader should take responsibility for the performance of the
group as well as the decisions that he takes on behalf of the groups. In the same
way, group member should also be accountable for their individual contribution
towards the task performance as well as the collective effort.

When speaking of accountability in relation to fields such as politics and even

media, the responsibility that falls on individuals is much greater. Let us take
politics for further elaboration. Politicians are accountable to the general public
in the implementation and framing of policies and governance.

Every group member should be accountable for their individual

contribution
What is the difference between Transparency and Accountability?

• Definitions:

• Transparency refers to conducting activities or performing actions in an open

and clear manner.

• Accountability refers to being responsible for one’s actions and having the
ability to provide sound reasoning for actions.

• Focus:

• Transparency focuses on openness and clarity.

• Accountability focuses on acknowledgement and being responsible for one’s

actions.

• Connection between Transparency and Accountability:

• Usually, transparency is considered as a pre-requisite of accountability as well.

This is because for an action to be evaluated properly there should be access to
all necessary information. If the access is denied, then accountability cannot be
proven.

Both transparency and accountability are viewed as necessary conditions for

good management. This applies in a large variety of settings starting from the
individual to organizations.
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Two of the most essential principles of democracy are accountability and

transparency, without which democracy would be impossible. Accountability
ensures that government officials are held accountable to the citizenry;
transparency gives the public the right to access government information and
requires that decisions and actions made by the government are open to public
scrutiny.
What happens when transparency and accountability are absent? When the
public is made ignorant of government information and decisions, it cannot hold
meaningful elections or make informed electoral choices. This leaves the
government free to become self-serving, corrupt, and arbitrary.
In democracy, elected officials are held accountable because it is the citizenry
that elects them to begin with, and re-election theoretically heavily depends on
how well those elected officials have served the interests of the people. An
elected official who behaves in a way that is not consistent with the will and
values of the citizenry—such as participating in illegal activities, succumbing to
corruption, or failing to execute their duties competently—is subject to the
people’s scrutiny.
Accountability and transparency are treated as major building pillars for
governing democratic nations in recent years. Before discussing about how they
benefit, its needs, and its importance we shall see what exactly accountability and
transparency is.
Accountability signifies the concern and duty of government institutional workers
to perform their activities in the best interests of the public and that institutional
officials should take responsibility for their activities performed. The
mechanisms by which government officials can be held responsible for activities
against formed principles and rules is called legal accountability. For
understanding it well we shall have an example here, Government has
accountability for laws and decisions affecting public; a citizen has accountability
for his behaviour and actions.
Transparency is a situation in which government institutional activities and other
supporting organizational activities are performed in open way without any
secrets held behind, so that the public can believe and trust that these
organizations are honest and fair. In other words, it’s a concept of eradicating all
barriers and enabling information access to public and facilitate procedures, rules
and regulations that protects those citizens, and this reflects on the development
of the nation.
 19

Democracy needs accountability and transparency as ingredients, with parliament

executing a major role as regulator. Sometimes it will be assumed that parliament
and its supporting organizations are the appropriate zones to eliminate political
allegations, corruption activities and maladministration made. But it has often
happened that various attempts to institutionalize a culture of transparency and
accountability have been avoided.
Developing nations with democratic system have always challenged the
symptoms of economic corruption. Although these symptoms are unfortunate, the
continued push for more accountable institutions remains worthwhile. For
example, Demonetization, GST etc. The structure of free markets and democratic
government can deliver the maximum value across the country and institutions
form the base network among markets, democracy and accountability. In
democratic countries like India, public should step out and create a pressure on
government organizations and other institutions to be transparent and
accountable.
Democratic organizations and financial institutions must try to move away from
the business of politics and concentrate more on moving towards accountability
and transparency. This will help in building trust in the society. In social,
industrial and government sectors its known that Indian democratic organizations
are working, but to be better they should start building a good relationship with
the public. Citizens who are paying their taxes would like to know exactly where
their money is spent and all the developments that has happened in the country.
“All government institutions and financial institutions should be re-positioned
and redefined to focus on accountability and transparency, if you are a member
of government or want to become a member of government, to be prepared to
live in a glass house”. Higher the transparency and accountability better the
stability of the country’s economy.
Need of Accountability and Transparency:

• Building of trust and impact of schemes can be enhanced with

participative governance.
• Major changes can take place in work culture by adopting
transparency and accountability in governance which leads to
greater concern towards society.
 20

• By adopting Accountability and transparency, it brings out a new

way of providing real-time information in online dashboard. This
not only solves the people’s problems but also service quality
can be improved.
• The relationship between government and people can be
enhanced and make citizens feel more connected.
• A two-way information channel will be created which helps to
understand exactly what people want. By the concepts of “listen,
ask, act, interact and inform”.
Some important steps to achieve transparency and accountability:

• Job functions and responsibilities shouldn’t be kept secret with

people.
• Government, schemes and institutional outcomes should be
shared with people, even if the results are not satisfactory.
• Transparency is about making sure everyone has the right to
information to do their jobs effectively.
• People with appropriate principles and vision towards their
organization must be hired or selected to maintain the culture of
accountability and transparency in government and other
institutions.
• Sharing of information, announcements and messages with
people should be made easier with the help of open system of
communication.

UNIT 2- FORMS OF GOVERNMENT

Parliamentary form of Government

• The democratic system of administration where the administration is

conducted by the council of ministers and, the council of ministers remain.
responsible for their activities to the legislature is called the cabinet form
of government or parliamentary form of government.
• In this administrative system the real administrators are the Cabinet
Ministers.
 21

• The head of the council of ministers is the Prime Minister. The cabinet
form of government is there in Great Britain, India and Canada. The Prime
Minister and the other ministers are the members of the parliament.
• The ministers are collectively responsible to the legislature for their
policies and activities.
• The council of ministers will remain in power till the Legislature support
them. If the majority of the members of the Legislature brings the vote of
no confidence against the ministers they resign.
Features of parliamentary form of government
Nominal and Real Executives: The President is the nominal executive (de jure
executive or titular executive) while the Prime Minister is the real executive (de
facto executive). Thus, the President is head of the State, while the Prime Minister
is head of the government.
Majority Party Rule: The political party which secures majority seats in the Lok
Sabha forms the government. The leader of that party is appointed as the Prime
Minister by the President; other ministers are appointed by the President on the
advice of the prime minister. However, when no single party gets the majority, a
coalition of parties may be invited by the President to form the government.
Collective Responsibility: This is the bedrock principle of parliamentary
government. The ministers are collectively responsible to the Parliament.
Double Membership: The ministers are members of both the legislature and the
executive.
Leadership of the Prime Minister: The Prime Minister plays the leadership role
in this system of government. He is the leader of council of ministers, leader of
the Parliament and leader of the party in power. In these capacities, he plays a
significant and highly crucial role in the functioning of the government.

Merits of Parliamentary form of Government

• The main virtue of this government is responsibility. As the members of
the majority party in the Legislature form the ministry, there is little chance
of conflict between the legislature and the administrative department.
• As the administration is conducted by the elected representatives of the
people, the best law and improved type of administration are possible. In
this system the cabinet is responsible to the legislature.
• So, the ministers cannot be arbitrary in their policies and activities. If they
are arbitrary the ministers are compelled to resign by the vote of no
confidence.
• This administrative system is easily changeable. The legislature can
remove the cabinet ministers from power if they are considered unfit.
Again, if the Legislature is against the public opinion, the Head of the state
 22

on the advice of the cabinet ministry can dissolve the parliament. By this
system such as balance can be maintained.

Demerits of Parliamentary form of Government

• In this system of administration, there may be arbitrariness of the party. At
any time, the government or the cabinet ministry may fall. So, its stability
is less. For this reason, the administrative policy and the continuity of long-
term works cannot be maintained.
• At times of emergency quick decisions cannot be taken through unanimity.

Presidential form of government

• Presidential form of government is that form of government in. which the
administration is not accountable to the Legislature. President is the real
Executive.
• The president is elected by the direct or indirect votes of the people. In the
United States of America, presidential form of government is prevalent. In
this system all the powers are vested in the hands of the. president.
• The president is not a member of the Legislature. He is elected by the
people for a fixed term. The Legislature cannot pass a vote of no-
confidence against him.
• He can only be removed by impeachment. The president appoints the
ministers and they are responsible to him. He can dismiss any minister at
any time.
•
Merits of the Presidential form of government
In this system the government is comparatively stable. The president cannot be
removed except through impeachment. As a result, long term development plans
can be taken and it is possible to execute them. At times of emergency this system
is helpful as the president can take a quick decision. He does not have to take
advice from anybody. In this system there is complete separation of power. So,
the Executive, Legislative and Judiciary departments are independent of each
other and can work freely.
Demerits of the Presidential form of government
The Head of the state is the real Executive. As the president and the ministers are
not responsible to the legislature, they many turn to be autocratic and
irresponsible. Sometimes conflict between the Executive and the Legislature
arises. As the Legislature is not under the control of the president, he cannot pass
law at the time of necessity and it hampers his administration
 23

COMPARISON

Features or characteristics of Presidential type of government and its

distinction from the parliamentary government:

(1) There is a separation of powers in the Presidential government. In this system

the executive and legislature are separate from each other and they have equal
status. But in a Parliamentary Government, there is no separation of powers. In
this system the executive is under the legislature.

(2) In a Presidential government, the President is the Head of the State as well as
of the government while in a Parliamentary government, the Head of the State is
President, King or Governor-General and the Prime Minister is the Head of the
government.

(3) In a Presidential government, the President enjoys real powers of the

administration and he exercises all those powers, which are given to him under
the constitution and the law. In a Presidential government there is no Prime
Minster.

4)The secretaries help the president in the administration and they are appointed
by him on the basis of ability. It depends upon the will of the president to accept
or reject their advice. In a parliamentary government, though constitutionally the
Head of the State (President, King or Governor-General) has many powers, yet
in practice these powers are enjoyed by his ministers. Thus, in practice the
President has only nominal powers and real powers lie with the Prime Minister
or his ministers.

(5) In a Presidential government the President and his secretaries are not
responsible to the legislature. The legislature cannot remove them through a vote
of no-confidence. Moreover, an adjournment motion or a censure motion cannot
be brought against them. The President and his secretaries are not the members
of legislature and they do not attend its sessions. Thus, they cannot be asked
questions and supplementary questions. In a Parliamentary government the Prime
Minister and other ministers are the members of either House of the Parliament
and any-one who is not the member of the Parliament, he or she has to seek the
membership within a specified period of time.
 24

They attend the sessions of the Parliament and answer the questions and
supplementary questions. They place bills before the parliament and make
statements relating to policies. A vote of no confidence, adjournment motion and
censure motion can be brought against them.In a Parliamentary government only
the President, King, or Governor-General make a speech at the time of the
inauguration of the Parliament. They are neither members of the House nor do
they take part in its deliberation. The Head of the State is not responsible to the
Parliament.

(6) In a Presidential government, the President is elected for a fixed tenure and
except impeachment for the violation of the constitution; he cannot be removed
from his office before the expiry of his term. In a parliamentary government,
though similar is the position of the President, yet the Prime Minister can be
removed only through a vote of no-confidence by the Parliament?

At present Presidential government is seen in the United States of America, Brazil

and in some other countries of South America.

COMPARISON BETWEEN PRESIDENTIAL AND PARLIAMENTARY

FORMS

BASIS FOR PARLIAMENTARY FORM PRESIDENTIAL FORM

COMPARISON OF GOVERNMENT OF GORVERNMENT

Meaning In Parliamentary system the In Presidential system, the

legislative and executive body of legislative, executive and
government are closely related, judiciary body of the
while the judiciary is independent government are
of the other two bodies of independent of each other.
government.

Executive Dual executive Single executive

 25

Accountability The executive is accountable to The executive is not

the legislature. accountable to the
legislature.

Powers Concentrated Divided

Ministers Only the members of Parliament Persons outside the

can be appointed as minster. legislature are appointed as
ministers.

Dissolution of Prime Minister can dissolve the President cannot dissolve

lower house lower house before the expiry of lower house.
its term.

Tenure of Not fixed Fixed

Executive

PARLIAMENTARY SYSTEMS IN UK AND INDIA

The parliamentary system of government in India though largely based on the

British parliamentary system has following differences -

1. India has a republican system in place of British monarchical system.

2. The Head of the State in India (that is, President) is elected, while the Head of the
State in Britain (that is, King or Queen) enjoys a hereditary position.

3. The British system is based on the doctrine of the sovereignty of Parliament. The
Parliament is not supreme in India and enjoys limited and restricted powers due to a
written Constitution, federal system, judicial review and fundamental rights.

4. In Britain, the prime minister should be a member of the Lower House (House of
Commons) of the Parliament. In India, the prime minister may be a member of any
of the two Houses of Parliament

6. Usually, the members of Parliament alone are appointed as ministers in Britain. In

India, a person who is not a member of Parliament can also be appointed as minister,
but for a maximum period of 6 months.

7. Britain has the system of legal responsibility of the minister. India has no such
system.
 26

8. Unlike in Britain, the ministers in India are not required to countersign the official
acts of the Head of the State.

9. ‘Shadow cabinet’ is a unique institution of the British cabinet system. It is formed

by the opposition party to balance the ruling cabinet and to prepare its members for
future ministerial office. India doesn’t have such institution.

PRESIDENTIAL SYSTEM

There has been an increased consideration over the system of government in India.
Many recent uproars like scams, corruption and mere perverted politics among the
parties in India has made people moan and groan over the existing system. As
discussed earlier, the discussion over this issue started way in the 1970s era of Mrs.
Indira Gandhi’s Prime ministerial regime which continues till date.

Taking over the arguments advanced by both pro and anti-Parliamentary system of
democracy in India under the following heads:

Anti-Parliamentary System Arguments

• No Development– The Parliamentary government produces drift in
policy and incoherence. A Presidential government would help to
restore order to our politically troubled country, dilute the corruption
of the political system and accelerate the pace of development through
quick decision making and implementation. It also provides stable
governance in the country, unlike the changes of government through
political realignments and mid-term elections. Such changes in
government brings about disruption in the formulation and
implementation of various developmental and welfare policies,
schemes and decisions.
• Criminalization of Politics– It is argued that the politicians today are
mostly incompetent, dishonest and have criminal background. Thus,
the criminalization of Indian politics has made it a “dirty game”. They
hardly think about the progress of our nation and its people. They take
their parliamentary tenure as a period to gain as much as they want.
They work as per their whims. Unlike this
a Presidential system would allow the President to appoint men of
talent as the ministers.
• Debilitated Capacity of Cabinet- The cabinet is said to be not able
to respond to the urgent demands and because there is lack of
consensus among the ministers regarding a course of action. It is
burdened with varying interests and contrary decisions which makes
it incapable of proper administration. The Presidential system is free
 27

of such burden and hence, it can pursue the actions of national interest,
since the executive power rests with the President himself.
• Mere Politics- The anti-parliamentary group also argues that the bane
of Indian politics is the existence of multiple parties which call for
coalitions. This way there is no sense of belongingness among the
members and there is only politics and trading of “support” among the
parties. There is no consideration of development and welfare.
The Presidential system, on the other hand overcomes this problem
owing to its feature of “fixed tenure of the President” in normal
circumstances.
• Less Democratic- It is claimed that the Parliamentary system is less
democratic since the Real head of the State i.e. the Prime Minister is
not chosen by the people directly as in case of India. There is a lot of
politics involved in the name of the Prime Ministerial candidate. There
is a rule of party in power as the President is a mere titular head having
no actual powers. But the Presidential system allows the people to
directly choose their Head which is the President. Hence, he
enjoys popular authority and therefore acts in their best interest.

Parliamentary Form of Government in India

United Kingdom has a parliamentary form of government. In fact, the Constitution

makers of India adopted the British model, as the system of government that
operated in India before 1947 was to a great extent quite similar to the British
parliamentary government. In India, there is parliamentary form of government both
at the central and state level.
Rationale Behind Adopting Parliamentary Form Of
Government In India:
India adopted the Parliamentary form of democracy in the year 1947 since India has
been familiar with its working during the times of British Rule. The type of
government that functioned in India before independence in 1947 was very much
similar to the British model of parliamentary. The framers of the constitution
were greatly influenced by the English system. Therefore, the members of the
Constituent Assembly decided to adopt this form of government for the independent
India. India is a nation deeply divided into several groups with conflicting interests.
All these varied groups are ensured representation in the Parliament through this
form of government.

The Indian system reflects all the main features of a parliamentary government:

1. Close relationship between the legislature and the executive

2. Responsibility of the executive to the legislature
 28

3. The executive having a Head of the State as the nominal executive, and a
Council of Ministers headed by the Prime Minister as the real executive

1. Close Relationship between Legislature and Executive

In India, there is a close relationship between the executive, i.e. the Council of
Ministers with the Prime Minister at the head and the legislature, i.e. the Parliament.
Only the leader of the majority party or coalition of parties can be appointed as
the Prime Minister. All the members of the Council of Ministers must be the
Members of Parliament.

It is only on the advice of the Council of Ministers that the President can summon and
prorogue the sessions of both Houses of Parliament and even dissolve the Lok Sabha.
All the elected Members of the Parliament participate in the election of the President
and he or she can be removed from office only when an impeachment motion against
him/her is passed by both the Houses of Parliament.

2. Responsibility of Executive to Legislature

The Council of Ministers is collectively responsible to Lok Sabha. It means that the
responsibility of every Minister is the responsibility of the entire Council of Ministers.
It is responsible to Rajya Sabha also. In fact, both the Houses have powers to control
the Council of Ministers. They do it by asking questions and supplementary questions
on the policies, programmes and functioning of the government.

They debate on the proposals of the government and also subject its functioning to
intensive criticism. They can move adjournment motion and calling attention notices.
No bill tabled by the Council of Ministers can become law unless it is approved by
the Parliament. The annual budget also is to be passed by the Parliament.

In real terms, the tenure of the Council of Ministers depends on the Lok Sabha.
The Council of Ministers has to resign if it looses the confidence of Lok Sabha,
which means the support of the majority in that House. The Council of Ministers
can also be removed from office by the Lok Sabha through a vote of no-confidence.

3. Nominal and Real Executive

There are two parts of the executive in India, nominal executive and real executive.
The President who is the Head of the State is the nominal and formal executive.
Theoretically, all the executive powers are vested by the Constitution in the President
of India. But, in practice these are not exercised by him or her. These are actually used
by the Prime Minister and the Council of Ministers.
 29

The Council of Ministers with the Prime Minister at the head is the real executive. The
President can not act without the advice of the Council of Ministers.

4. Prime Minister as Real Executive

It is the Prime Minister who is the pivot of the parliamentary executive. All the
members of the Council of Ministers are appointed by the President on the
recommendations of the Prime Minister. The allocation of portfolios among the
Ministers is the prerogative of the Prime Minister. He or She presides over the
meetings of the Cabinet and is the only link between the Council of Ministers and the
President. Any Minister can be removed from office if the Prime Minister decides.
When the Prime Minister resigns, the entire Council of Ministers has to go.

The parliamentary system in India has been functioning quite satisfactorily.

The parliamentary governments in States also are structured on the pattern of the
Central government. The executive consists of the Governor and the Council of
Ministers with Chief Minister at the head. Whereas, the Governor functions as the
Head of the State, the Chief Minister and the Council of Ministers act as the real
executive.

State legislatures are bicameral (State Assembly and Legislative Council) in only a few
States; in most of the States these are unicameral (Legislative Assembly).

US FORM OF GOVERNMENT

The US is a constitutional republic and representative democracy. Our

Government is regulated by a system of checks and balances defined by the US
Constitution, which serves as the country’s supreme legal document. In the US,
citizens are usually subject to three levels of government: federal, state, and
local. The original text of the Constitution establishes the structure and
responsibilities of the federal government and its relationship with the individual
states. The Constitution has been amended 27 times, including the first 10
amendments, the Bill of Rights, which forms the central basis of Americans’
individual rights.

Federal government structure

The Constitution divides the federal government into three branches to ensure a
central government in which no individual or group gains too much control:

• Legislative – Makes laws (Congress)

• Executive – Carries out laws (President, Vice President, Cabinet)
• Judicial – Evaluates laws (Supreme Court and other courts)
 30

Each branch of government can change acts of the other branches as follows:

• The president can veto legislative bills passed by Congress before they
become law (subject to Congressional override).
• Congress confirms or rejects the president’s appointments and can remove
the president from office in exceptional circumstances.
• The justices of the Supreme Court, who can overturn unconstitutional
laws, are appointed by the president and confirmed by the Senate.

Legislative
The legislative branch enacts legislation, confirms or rejects presidential
appointments, and has the authority to declare war. This branch comprises
Congress (the Senate and House of Representatives) and several agencies that
provide support services to Congress.

Executive
The executive branch carries out and enforces laws. It includes the president,
vice president, the Cabinet, 15 executive departments, independent agencies, and
other boards, commissions, and committees.

Judicial
The judicial branch interprets the meaning of laws, applies laws to individual
cases, and decides if laws violate the Constitution. The judicial branch comprises
the Supreme Court and other federal courts.

PRESIDENTIAL FORM OF USA

There were two factors which influenced the framers of the American
Constitution against the Cabinet form of government. In the first place,
Montesquieu’s theory of the Separation of Powers had a great appeal for the
Americans.
• The theory of limited government, which is the natural corollary of the
doctrine of popular sovereignty, had convinced the framers of the
Constitution of the necessity of separating the three branches of government
as it prevented tyranny and absolutism.
• If liberty had to last, the political direction of authority should not concentrate
in any one of the branches of government. Secondly, Cabinet government
could function only when the life of the nation was divided into distinct
political parties, each with its separate programme and platform.
 31

• Political parties, the framers of the Constitution believed weakened national

solidarity by creating sharp cleavages whereas the need of the time then was
unity out of diversity of the new nation.
• They, accordingly, created an executive department independent of and
coordinate with the legislative department; an “energetic yet dignified”
executive capable of enforcing national laws firmly and one which should
lend a note of stability to the new government.
• The Presidency of the United States is one of the greatest political offices in
the world. Its occupant has become with the exception of the Central
European dictators the most powerful head of a government known to our
day. He is absolutely free with respect to the exercise of his powers and tenure
of office, except that all appointments made and treaties concluded by him
are ratified by the Senate.
• As his term of office goes by calendar, his responsibility to the electorate is
unenforceable. He can only be impeached by the Senate. His conviction by
the Senate cannot carry a greater penalty than removal from office and
disqualification to hold and enjoy any office of honour, trust, or profit in the
United States.
• In the exercise of his executive duties, the President is assisted by his
Secretaries who are heads of different departments and are now ten in
number. The Secretaries of the President are merely his personal assistants.
• They are appointed by him and are responsible to him. None of them is a
member of Congress nor is he responsible to it. Though popular usage
collectively gives to these departmental heads the name of ‘Cabinet’, yet it is
a misnomer to designate, them as such.
• The President cannot shift his responsibility to this body or any officer of it.
He cannot make them individually or collectively accountable to the
legislature or the country for the policies and actions of the federal
government over which he presides.
• Their responsibility is to the President alone. ‘Cabinet’ in the United States
is a mere creation of the President’s will. It is an extra-statutory and extra-
constitutional body.
• It exists only by custom and if the President desires to dispense with it, he
can do so. The procedure, as it stands today, is that the ‘cabinet’ meets
ordinarily once a week and the President places before it questions upon
which he thinks he needs their advice, and the members bring to the cabinet
such matters in their respective departments as they deem appropriate for
‘cabinet’ conference and general discussion.
 32

• Votes are seldom taken as they are of no importance beyond securing a mere
expression of opinion. And even if ever they are taken, they have no value.
‘Cabinet’ members have no corporate rights as in Britain.
• The executive in the United States has no initiative in legislation, except that
the President may send messages from time to time to Congress,
recommending the enactment of particular laws.
• It is true that Presidential messages are favourably received by Congress and
greatly influence the course of legislation, yet the executive in America lacks
all initiative and guidance which is so important rather basic, feature of the
Parliamentary government.
• Nor has the President the right to summon (except for extraordinary session)
congress and the dissolve it. Congress meets automatically on dates specified
in the Constitution and its duration is fixed. No doubt, the President can veto
laws passed by Congress, but it is only a suspense veto.
• If the Bill vetoed by the President is again passed by both the Houses of
congress, with a two-third majority in each House, it becomes law without
the signatures of the President and is forthwith promulgated.
According to Herman Finer the American Presidency has six outstanding
characteristics.
• “It is a ‘made’ executive but it has grown;
• “It is a ‘solitary’ not a ‘collective’ executive;
• “It is popularly elected, in practice directly;
• “It is more than an executive;
• “It is separated from Congress;
• “It may be tinkered with, but cannot be reformed.”
Quasi-federalism means an intermediate form of state between a unitary state
and a federation. It combines the features of a federal government and the
features of a unitary government. India is regarded as a semi-federal state or
a quasi-federal state as described by Prof. K.C. Wheare. The Supreme Court
of India also describes it as a federal structure with a strong bias towards the
Centre.

Unitary government
• A unitary government is a government in which all the powers of the state
are concentrated in the hands of the Central Government sanctioned by the
constitution. The Local Governments derive their powers from the Central
Government.
 33

• In this system, the constitution does make arrangements for the distribution
of power between the local and the central governments. In Bangladesh
there is unitary government.
• For the convenience of administration of unitary government the state is
divided into some parts. In these parts local governments are formed. To
squeeze or expand the power of the government depends on the will of the
central government.
Merits of the unitary government
In the system of Unitary form of government, the same law, policies and the same
administration prevail in the country under one government. Under this system
the administration becomes strong and the national unity is integrated. As all the
powers are in the hands of one government, greater skill and efficiency is
reflected both in the domestic and International affairs.
Demerits of the unitary government
In the unitary system of government, the local governments have no power. They
carry on administration depending on the will of the central government. Very
often the central government does not know the local problems and grievances.
So, the laws passed by the central government may not be useful according to the
needs and demands of the local government.

Federal government
• In the system of administration where the constitution distributes the
powers between the Central Government and the Provincial Government,
it is called the Federal Government.
• This system is there in India I and in the United States of America. In the
system there are two types of [government: the Central government, and
the state government.
• The constitution distributes power between the Central and the State
Government. The subjects concerning the total interest of the states remain
under the [Central Government and the subjects concerning the local
interest remain in the State or Provincial Government.
• In the matters of regional administration, the State Government enjoys self-
government. In this system of administration, the constitution is written
and it is rigid.
Merits of the Federal government
In a Federal system the unit or Provincial Governments maintain national unity
keeping their separate entity. The federal system of administration is a political
contrivance. Powers are distributed between the central and the Provincial
Government by the constitution so; the burden of works of the central government
is lessened. As a result, the skill of both the governments increases. Besides, as
 34

there is the distribution of specific powers, the central government does not
interfere with the administration of the provincial government to become
autocratic.
Demerits of the Federal government
In this system of administration, the state governments create laws for their own
necessity and convenience; so, there is no similarity in law and administration in
different state governments. In the different parts of the same state different types
of laws are promulgated. In both the governments conflict regarding right corps
up. As the powers are divided between the two governments the central
government becomes weak in many respects.

Quasi federal nature of Indian Constitution:

Article 1 of the Constitution of India states that ‘India that is Bharat shall be a
union of states’. Indian model of federalism is called the quasi-federal system as
it contains major features of both a federation and union.

• Thus, on a careful analysis of the federal and unitary features of the

constitution, it is evident that with every federal feature, there is an ultimate
centralising force which is existing. Therefore, it would not be wrong to
conclude that the Constitution of India is federal in structure and unitary in
spirit i.e. it is quasi- federal in nature.

The Indian Federalism is unique in nature and is tailored according to the specific
needs of the country. Federalism is a basic feature of the Constitution of India in
which the Union of India is permanent and indestructible.

According to KC Where, in practice, the Constitution of India is quasi-federal in

nature and not strictly federal. In words of D.D. Basu, the Constitution of India is
neither purely federal nor unitary, but it is a combination of both. Throughout the
Constitution, emphasis is laid on the fact that India is a single united nation. India
is described as a Union of States constituted into sovereign, secular, socialist and
democratic republic. In State of West Bengal v Union of India, the apex court
held that decentralization of authority in India was primarily to facilitate smooth
governance of a large nation and therefore, it contains many centralizing features
also. Indian Constitution is not a ‘traditional federal constitution.’ In S.R.
Bommai v Union of India, Justice Ahmadi opined that the essence of federation
is the existence of distribution of power between the Union and the States.
However, the absence of the terms ‘federal’ or ‘federation’ and the presence of
 35

unitary features such as residuary powers, single citizenship, integrated judiciary,

etc can help us conclude that the Constitution of India is more ‘quasi federal’ than
‘federal’ or ‘unitary’. Similar was held in the case of Sat Pal v State of Punjab.

The Chairman of Drafting Committee, Dr. Ambedkar had thus rightly said that,
“Our Constitution would be both unitary as well as federal according to the
requirements of time and circumstances”. The Drafting Committee wanted to
clarify that though India was a federation, it was not the result of any voluntary
agreement between the States. Though the country is divided into many States, it
is basically for administrative purposes which do not in any way affect its
functioning as an integrated unit.

Finally, on a careful analysis of the federal and unitary features of the

constitution, this aspect is not hard to miss that in every federal feature, there was
an ultimate centralizing force which is existing. Therefore, it would not be wrong
to conclude that the Constitution of India is federal in structure and unitary in
spirit i.e. it is quasi- federal in nature.
Federal Features of the Indian Constitution 36 Unitary Features of the Indian Constitution

1. Single Constitution: In India, there is only one

1. Supremacy of the Constitution: Constitution
Constitution. It is applicable to both the Union as a
is the supreme law of land in India. A federal state
whole and the Stares. In a true federation, there are
derives its existence from the Constitution.
separate constitutions for the union and the States.

2. Rajya Sabha does not represent the States

2. Bicameral Legislature: The main feature of equality: In a true federation, the upper house of
federalism is a bicameral legislature. The the legislature has equal representation from the
Constitution of India also provides for a bicameral constituting units or the States. But in Rajya Sabha,
legislature i.e. Parliament with two houses of the the States do not have equal representation. The
Lok Sabha and the Rajya Sabha. populous States have more representatives in the
Rajya Sabha than the less populous States.

3. Dual Government Polity: The Constitution of

India has divided powers between the Central
3. Division of power is not equal: In a federation,
government and the state governments through the
power is divided equally between the two
7th schedule. It contains three legislative lists
governments. But in India, the Central government
which enumerate subjects of administration, viz.
has been given more powers and made stronger
Union, State and Concurrent Legislative Lists.
than the State governments.
Both the governments have their separate powers
and responsibilities.

4. Written Constitution: The Indian Constitution

4. Existence of States depends on the Centre: In
is a written document containing 395 Articles and
India, the existence of a State or a federal unit
12 schedules, and therefore, fulfils this basic
depends upon the authority of the Centre. The
requirement of a federal government. The Indian
boundary of a State can be changed by created out
Constitution is the most elaborate Constitution of
of the existing States.
the world.

5. Rigid Constitution: The Indian Constitution is 5. Constitution is not strictly rigid: The
largely a rigid Constitution. All the provisions of Constitution of India can be amended by the Indian
the Constitution concerning Union-State relations Parliament easily. On many subjects, the
can be amended only by the joint actions of the Parliament does not need the approval of the State
State Legislatures and the Union Parliament. legislatures to amend the Constitution. In a true
federation, both the Union and the State
 37

legislatures take part in the amendment of the

Constitution with respect to all matters.

6. Independent Judiciary: In India, the

6. Unified judiciary: India has a unified or
Constitution has provided for a Supreme Court.
integrated judicial system. The High Courts which
The Supreme Court of India can declare a law as
work in the States are under the Supreme Court of
unconstitutional, if it contravenes any provisions
India.
of the Constitution.

7. Proclamation of emergency: The Constitution

7. Revenue Sharing: In the case of a federal
of India has given emergency powers to the
country there is a system of revenue sharing
President. When an emergency is declared, the
between the Center and the State. In India, there is
Union or Central governments become all
the principle of dual GST system adopted by the
powerful and the State governments come under
legislation for the constitutional requirement of
the total control of it. The State governments lose
fiscal federalism.
their autonomy.

COMPARE FEDERAL AND UNITARY SYSTEMS – U.S.A., INDIA AND

SWITZERLAND (FEDERAL SYSTEMS) – U.K., FRANCE AND CHINA
(UNITARY SYSTEMS)
INTRODUCTION:
• Federalism constitutes a complex governmental mechanism for the
governance of a country. Federalism is the existence of dual government.
It seeks to draw a balance between the power in the Centre and those of
number of units.
• A federal Constitution envisages a demarcation of governmental functions
and powers between the Centre and the regions by the sanction of the
Constitution, which is a written document.
• Federalism in some form or other has its roots in the remote past, for it
was not unknown among some of the city-states of Ancient Greece.
• in the middle Ages among some of the cities of Italy, and indeed, since the
thirteenth century its history has been continuous in the development of the
Swiss Confederation, which was born when the three Forest Cantons
banded themselves together for protection in 1291.
 38

• The federal type of constitution is adopted by a number of newly emergent

nations in Africa, Asia and Latin America as a response to their often
widely diversified cultural, territorial, and political traditions. Federalism
varies in from place to place and from time to time. In its loosest from it is
a congeries of states which in fact do not make a state at all. A federal state
requires two conditions for its formation.
• The first condition is a sense of nationality among the units federating. The
second condition is that the federating units, though desiring union, do not
desire unity.
• The federal constitution attempts to reconcile the apparently irreconcilable
claims of national sovereignty and state sovereignty. The division of
power, however, it may in the various federations of the modern world be
carried out in detail is the essential characteristic of the federal state.
• Basically three ways in which federal states may vary from one another,
first as to the manner in which the powers are distributed between the
federal and state authorities, secondly as to the nature of the authority for
preserving the supremacy of the constitution over the federal and state
authorities if they should come into conflicts with one another, and thirdly
as to the means of changing the constitution if such change should be
desired.
• The powers may be distributed in one of two ways, either the constitution
states what powers the federal authority shall have and leaves the
remainder to the federating units, or it states what powers the federating
units shall posses and leaves the reminder to the federal authority. This
remainder is generally called the ‘reserve of powers’.
• The object of stating the powers is to define and hence to limit them. When
federal constitution defines the powers of the federating units the aim is to
strengthen the federal authority at the expense of the separate members of
the federation.
• Such sates are less federal in nature. Where constitution defines powers of
the federal authority, as in the case of US, the object is to check the power
of the federal authority as against the federating units.
• They want a federal state with a real power, through which they can express
their common nationality, but they want at the same time to maintain their
individual character as states as far as possible.
• The division of powers implies that both the legislature of the federation
and that of the federating units are limited in their scope and that neither of
them is supreme.
 39

• There is something above them, the constitution. In truly federal state the
power to maintain equilibrium between centre and states is granted to a
supreme court of judges whom should ensure the protection of
constitutional provisions.
• The word Federalism derived from the Latin word ‘foedus’ which means
treaty or agreement. The term is usually used to mean an association of
states.
• The term "federalism" is used to describe a system of government in which
sovereignty is constitutionally divided between a central governing
authority and constituent political units such as states or provinces.
• Federalism is a system based upon democratic rules and institutions in
which the power to govern is shared between national and provincial/state
governments, creating what is often called a federation.
• A federal state is a system of two sets of governments within a single state.
It represents a compromise between large state and small states.
Federal system: Meaning and Dynamic Implications Political system of the world
are either federal or unitary or a mixture of both. While countries like USA,
Switzerland, Canada and India should be placed in the category of federal states,
others like Britain, France, Sri Lanka and China are examples of unitary states.
Different from both, some countries having a system based on the principles of
the division of powers along with very high level of concentration of powers in
the hands of central government are treated as quasi-federal. According to Finer
a federal state is one in which part of authority and power is vested in the local
areas while another part is vested in the central institution deliberately constituted
by an association of the local areas. According to Daniel J. Elazara, “Federalism
provides a mechanism which units separate polities within an over-arching
political system so as to allow each to maintain its fundamental political
integrity.” Dicey defines federation as “political contrivance, intended to
reconcile national unity and power with the maintenance of state rights”. In the
words of Hamilton, a federal state is an association of states that forms a new one.
According to Garner “federal government is a system in which the totality of
government power is divided and distributed by national constitution as the
organic act parliament creating it, between a central government and the
governments of the individual states or other territorial subdivisions of which the
federation is composed.
FEATURE OF A FEDERATION
• Division of Powers: The division of powers between the federal
government and units is an essential feature of a federation, which is
 40

specified in the constitution itself. Since the federation consist of two levels
of governments, there is an imperative need for division of power
demarcating the sphere of authority. Normally matters of national
importance are given to the federal government and matters of local
importance to the units. Each government has completed in its own sphere.
• Supremacy of the Constitution: Both the levels of the governments derive
their powers from the constitution. The provisions of the constitution
control every governmental authority. The constitutions mention the
powers of the centre and units, thereby prohibiting the encroachments of
powers.
• Written Constitution: The constitution should be a written one in a
federation, because the division of governmental powers can be properly
specified in a written constitution.
• Rigid Constitution: The constitution should also be a rigid one, which
cannot be easily altered. The amendment procedure of the federal
constitution is invariably more difficult than the enactment of ordinary
laws. Any amendment process must require the explicit participation of the
federal units.
• Dual Polity: In a federation two sets of government are constitutionally knit
together. a) The federal or national or union government b) Regional
governments may called states (as in USA and India) or cantons as in
Switzerland. The national government governs the entire territory
consisting of all units. The regional governments have this jurisdiction
limited only to their respective territory. Each government act within its
own sphere.
• Presence of an Independent Supreme Court: It is very essential to settle
disputes which are likely to arise between two sets of governments. The
judiciary should interpret the constitution and acts as the guardian of the
constitution. Its main functions are to see that no government encroaches
in the sphere of others. In all matters affecting the constitution the Supreme
Court is the final arbitrator.
• Bicameral Legislature: In a federation a citizen enjoys dual citizenship.
First, he has a citizen of the federating units in which he resides and
secondly the federal state.
Features and Characteristics of Unitary Government
• A single central, all-powerful governments
• There is a single common source of authority located at one common
centre.
• No constitutional division of power
 41

• The local governments are mere parts and agents of the central
government and derive power delegated by the central legislature, not
from the constitution.
Single citizenship
Local government are the creation of the central government. Unitary system
does not envisages two levels of government. Hence there is single citizenship
and no question of dual citizenship.
Powers of local units are not original
In a unitary government local authorities are mere parts or agents of central
government and are created for the purpose of administrative convenience.
Supremacy of the central legislature
In a unitary system, there are no constitutionally autonomous local units.
There is no need for a second legislative chamber.
A written or unwritten constitution or a rigid or flexible constitution
In a unitary government a written constitution is not necessarily required as
is the case in federal government. Since all the powers are vested with the
centre and there is no division of powers, it is not essential to have a written
and rigid constitution. But in a federation a written or rigid constitution is
necessary as there is division of powers between the central and local
governments which needs to be specifically written down.
Distinction between Unitary and Federal Government
Every modern state is either unitary or federal. The two forms are quite different
from are quite different from each other. Unitarianism is the exercise of supreme
legislative authority by central power. Federation is an association of states. It is
political contrivance intended to reconcile national unity and power with the
maintenance of state rights. Governmental set-up
In a unitary state all the powers of the government whereas in federation there are
two sets of government, one national and other provincial government. Each of
them is independent in its sphere, demarcated by written and supreme
constitution.
Division of powers
A federal government is characterised by decentralisation and distribution of
powers. The powers are distributed between the central government and the
component units by constitution itself. But in a unitary state there is no
 42

constitutional division of powers, but concentration of powers in the central

government.
Organisation of legislature
The legislature is an essential characteristic of a federation. The country as a
whole is represented by one house of the legislature and the component units are
represented by the other house. But in a unitary system, is there are no
constitutionally autonomous local units. There is no need for a second legislative
chamber.
THE FEDERAL FEATURES OF INDIAN CONSTITUTION
The Indian Federalism is the result of historical evolution. It springs from the
necessity for the union of a number of independent states which are not strong
enough individually to protect themselves from outside danger, and whose union
is requisite for their safety and for the promotion of their economic interests, but
which are not prepared to surrender their independence completely. The impulses
which lead to the formation of a federation are usually the idea of national unity,
the desire to promote common economic interests, the amicable resolution of
common problems and consideration of defence and international prestige. Some
scholars of government describe India as a quasi- federal state, and some even
regard as a more unitary as federal.
The Indian federalism has many characteristics, which are essential for a federal
polity. The main federal features of the Indian Constitution are as follows:
• Written Constitution: For a federation it is essential that its constitution
should be a written one so that both the units as well as the centre can refer
to that as and when need be. Accordingly, Indian constitution is a written
document containing 395 articles and 12 schedules and therefore fulfils this
basic requirement of a federal government.
• Supremacy of the constitution: India’s constitution is supreme and not the
hand-maid of either centre or of the states. If or any reason any organ of
the state dares to violate any provision of the constitution, the courts of law
are there to ensure that dignity of the constitution is upheld at all costs.
• Rigid constitution: Another essential characteristic of a federation is that
the constitution should be rigid. The Indian constitution is largely a rigid
constitution. All the provisions of the constitution concerning Union –
State relations can be amended only by the joint actions of the State
legislature and Union parliament. Such provisions can be amended only if
the amendment is passed by two- thirds majority of the members present
and voting in the parliament (which must also constitute the absolute
 43

majority of the total membership) and ratified by at least one- half of the
States.
• Division of powers :In a federation there should be clear division of powers
so that the units and the centre are required to enact and legislate within
their sphere of activity and none violates its limits and tries to encroach
upon the functions of others. The seventh Schedule of Indian constitution
contains three legislative lists which enumerate subjects of administration,
viz., Union, State and Concurrent legislative list. The union list consisted
of 97 subjects, the more important of which are defence, foreign affairs,
railway, p& t, currency etc. The state list consisted of 66 subjects, including
public order, police, public health etc. The concurrent list embraced 47
subjects including criminal law, marriage, divorce, electricity, economic
and social planning etc. The union government enjoys exclusive power to
legislate on the subjects mentioned in the union list. The state governments
have full authority to legislate on the state list under normal circumstances.
And both centre and the state can legislate on the subjects mentioned in the
concurrent list. The residuary powers have been vested in the central
government
• Independent Judiciary: For a federation it is also essential that the judiciary
should be supreme and independent. It should be a custodian of the
constitution. In India, the constitution provides a supreme court and every
effort has been made to see that the judiciary in India is independent and
supreme. The supreme court of India can declare a law as unconstitutional
or ultra vires, if it contravenes any provisions of the constitution. In order
to ensure impartiality of the judiciary, our judges are not removable by the
Executive and their salaries cannot be curtailed by parliament.
• Bicameral Legislature: The constitution of India provides for a bicameral
legislature at the centre consisting of Lok- Sabha and Rajya Sabha. While
Lok Sabha consists of the elected representatives of people, the Rajya
Sabha mainly consists of representatives elected by the state legislative
assembles. However, all the states have not been given equal representation
in the Rajya Sabha.

Unitary features of the Constitution of India

As opposed to this is the opinion of some scholars who regard the Indian
Constitution to be unitary in nature. It has been argued that the Indian
Constitution does not satisfy certain essential tests of federalism, namely - the
right of the units to make their own Constitution and provision of double
citizenship. Further, in the three-fold distribution of powers, the most important
 44

subjects have been included in the Union list, which is the longest of the three
lists containing 99 items. Even regarding the Concurrent list, Parliament enjoys
an overriding authority over the State Legislatures.
Article 253 empowers the Union Parliament to make laws implementing any
treaty, agreement or convention with another country or any decision made at any
international conference, association, or other body.
Some of the other Constitutional provisions, which are often quoted in favor of
the Unitary status of the Indian Constitution are
- emergency powers of the president to declare national emergency or declaring
emergency in a state in the event of failure of Constitutional machinery, the
appointment of governors, unification of judiciary and the dependence of the
States on the Centre for finance. The power of the Union to alter the names and
territory of the states, to carry out Constitutional amendments and to affect co-
ordination among the States and settle their mutual disputes is also regarded as
an indicator of the unitary character of the Indian Constitution.

American Federalism:
The modern idea of federalism starts with the formation of the American
federation. It has all the conditions necessary for the success of a federation. The
features of American federation are the following.
• Written and Rigid Constitution: All federal constitution must be a written
one. The American constitution fulfils this condition as it is a written
document consists of 7 Articles and less than 70 amendments. The
constitution is supreme in the sense that all the governmental organs
legislature, executive and judiciary are the creation of the constitution and
these organ can exercise only such powers as are delegated by the
constitution. No governmental organ can exercise those powers which are
not confined to them by the constitution. The American constitution is a
written one and it is the supreme law of the land. It is also a rigid
constitution. The American constitution can be amended only by both the
governments federal and federating units. No alteration in the boundaries
of the existing states can be made without the consent of the legislature
concerned.
• Division of Powers: In the US federation the powers of the central
government was enumerated. There exist a list, known as Federal List
which contains only nineteen items of national importance and is delegated
 45

to the central government. The major federal powers enumerated as powers

granted to the Congress, the President and the Supreme Court. These
powers include foreign relations and treaties, declaration of war, borrowing
the nation’s credit, armed forces, postal services etc. However, powers of
the central government have developed considerably since the farming of
the constitution. A large number of such powers have been acquired by the
federal government as a result of the “implied powers” interpreted by the
Supreme Court, and the residuary powers that is the powers not mentioned
in the federal list vested with the state.
• The Supreme Court: In a federation it is necessary to have a Federal Court
with an autonomy to interpret the constitution. The Federal Judiciary the
Supreme Court performs two important functions. Firstly, it decides
disputes of jurisdiction arising between the central government and
regional governments or between regional governments. Secondly, it keeps
different governments within their limits so that no one may encroach upon
the sphere of jurisdiction of the other. As Prof. Munro says, “federation by
its very nature implies a division of authority between the nation and states
with the certainty that disputes concerning the range of their respective
power will arise”. A strong independent judiciary is particularly necessary
in a federal state to settle such controversies fairly, promptly and
decisively.
• Equality of representation of the State in the Second Chamber of the
Congress: A second chamber is indispensable for a state having federal
form of government. The lower chamber represented the people of the
nation as a whole and the federating units represent the second chamber.
The second chamber of the American Congress, the senate, is composed of
representatives of the American States. In the senate all the federating units
are representing equally irrespective of their size or population. This
system was accepted as one of the compromises of the constitution with a
view to protecting the smaller states against the domination of a larger one.
While in the Indian federation the second chamber, the Rajya Sabha is
represented by the states on the basis of their population.
• Dual Citizenship: In American federal system the citizen enjoys two types
of citizenship- one of the Union and other of the States. They are identified
as citizen of a particular state and at the same time they are also recognised
as American citizens. This is due to the fact that the American always stood
for regional autonomy and for national unity simultaneously.
Federal State Relations in America
 46

The American is a model federation and its first among the federal system in the
modern era. In the American federation the central government can exercise only
such power as enumerated in the constitution. That means the national
government has only a limited power. So in theory the national government of
America is a week central government. But the modern trend in the U.S.A. reveals
that the central government became more and more powerful due to some
provisions of the constitution and judicial interpretation.
Swiss Federation: In the Swiss Confederation, we have the oldest of existing
federal states. In spite of its name, it’s now a true federation and not a
confederation. When Europe was plagued by revolutionary uprisings, the Swiss
drew up a constitution which provided for a federal layout, much of it inspired by
the American example. This constitution provided for a central authority while
leaving the cantons the right to self-government on local issues. Giving credit to
those who favored the power of the cantons the national assembly was divided
between an upper house (the Swiss Council of States, 2 representatives per
canton) and a lower house (the National Council of Switzerland, representatives
elected from across the country). Referendum is made mandatory for any
amendment of this constitution.
In some respects the Swiss confederation afford an even more striking example
than the United States of how conflicting state interests can be overcome, without
annihilating state identity, by the political device called federalism. Even the
language difference is officially recognized in the federal legislature where a
member may speak in German, French or Italian.
The Swiss confederation for example speaks of the Swiss ‘nation’, a word
unknown to the American Constitution, but at the same time, it divides the powers
in such a way as to leave the ‘reserve’ with the cantons. Yet, it shows at some
points both an incomplete nationalization and an incomplete federation. In the
election to the upper house, the constitution leaves every detail to the cantons,
whereas in US the constitution lays down a uniform method. As to the judiciary,
the two houses of the legislature sitting together as one tribunal elect members of
the Supreme Court of judges for six years. However, they may be, and often are
reflected.
This Supreme Court, however, has no powers of interpreting the constitution
comparable to those of the Supreme Court in the US, for the Swiss court cannot
declare any federal law invalid as infringing some provision of the federal
constitution.
 47

That power is expressly left to the legislature, which passes the law. However,
the Supreme Court does decide in cases of conflict between cantons and it is the
court of final appeal in all cases.
To summarize, we may say that, in the Swiss confederation, the powers are
divided so that ‘reserve of powers’ is left with cantons; the constitution is
supreme, but it is left open at every point to an absolute democratic check by the
instruments of the referendum and the popular initiative; and finally the federal
judiciary has no power of interpreting the constitution.

British Unitary System

• The United Kingdom is an example of a unitary state. Scotland, Wales, and
Northern Ireland which, along with England are the four constituent
countries of the United Kingdom, have a degree of autonomous devolved
power – the Scottish Government and Scottish Parliament in Scotland, the
Welsh Government and National Assembly for Wales in Wales, and the
Northern Ireland Executive and Northern Ireland Assembly in Northern
Ireland. But such devolved power is only delegated by Britain's central
government, more specifically by which is supreme under the doctrine of
parliamentary supremacy.
• Further, the devolved governments cannot challenge the constitutionality
of acts of Parliament, and the powers of the devolved governments can be
revoked or reduced by the central government. For example, the Northern
Ireland Assembly has been suspended four times, with its powers reverting
to the central government's Northern Ireland Office.
• The UK government remains responsible for national policy on all matters
that have not been devolved, including foreign affairs, defence, social
security, macro-economic management and trade. It is also responsible for
government policy in England on all the matters that have been devolved
to Scotland, Wales, or Northern Ireland.
• The UK Parliament is still able to pass legislation for any part of the UK,
though in practice it only deals with devolved matters with the agreement
of the devolved governments. In Scotland, Wales, and Northern Ireland,
some government policies and public services are different from those in
England.
• The UK central government has given certain powers to devolved
governments, so that they can make decisions for their own areas.
Following referendums in Scotland and Wales in 1997, and in both parts
of Ireland in 1998, the UK Parliament transferred a range of powers to
national parliaments or assemblies. The Scottish Parliament, the National
 48

Assembly for Wales and the Northern Ireland Assembly were established,
and took control in 1999.
• The arrangements are different in the three parts of the country, reflecting
their history and administrative structures. Within the UK government, the
Secretaries of State for Scotland, Wales and Northern Ireland are
responsible for the Scotland Office, the Wales Office and the Northern
Ireland Office. They ensure that devolution works smoothly, and help to
resolve any disputes.
• They represent their parts of the country in UK government, and represent
the UK government in those parts of the country. Most contact between the
UK government and the devolved administrations takes place between the
individual government departments that deal with particular matters.
Finally the UK system seems to be unitary. Sovereignty is retained in
Parliament.
• The UK Parliament retains the ability to amend the terms of reference of
the Scottish Parliament, and can extend or reduce the areas in which it can
make laws. For the purposes of parliamentary sovereignty, the Parliament
of the United Kingdom, at Westminster continues to constitute the supreme
legislature of Scotland.
• Devolution differs from federalism in that the powers devolved may be
temporary and ultimately reside in central government, thus the state
remains, de-jure, unitary
• FORM OF GOVERNMENT IN FRANCE
• The Government of the French Republic is composed of the Prime Minister
who is the head of the government and the ministers. A semi-presidential
system of government characterizes the Republic of France, where both a
president and prime minister shares executive powers. The framework for
the current government of France was laid out in the 1958 constitution of
the Fifth Republic. The constitution was largely founded on the principles
of General de Gaulle. The government of France is a semi-presidential
system determined by the French Constitution of the French
fifth Republic. The nation declares itself to be "an
indivisible, secular, democratic, and social Republic" in it. The
constitution provides for a separation of powers. It proclaims France's
"attachment to the Rights of Man and the principles of national
sovereignty defined by the Declaration of 1789." France has 3 branches of
government.
• President Of France
• The President of the Republic of France is elected through universal
suffrage for five years, limited to two terms. The French President is the
supreme commander of the military, and he/she determines the broad
 49

guidelines for defense. The President’s chief role is to determine

government policy with the help of his Council of Ministers. The President
appoints the Prime Minister and approves the appointment of the Ministers.
The current president is Francois Hollande who was elected in May 2012.
• Prime Minister Of France
• The President appoints the Prime Minister of France, and his/her position
can be revoked through a censure motion by the National Assembly. The
Prime Minister, after appointment, forms the government by appointing
ministers. The proposed ministers have to be approved by the President.
The Prime Minister is mandated to direct the actions of the government
and to coordinate ministerial and governmental actions. The prime minister
ensures that the ministers do not undertake contradictory measures and
he/she arbitrates in the case of conflicts. The Prime Minister oversees the
implementation of laws and national defense. The current prime minister
is Manuel Valls who took office on April 1, 2014.
• Council of Ministers
• The members of the cabinet are appointed by the President after they are
proposed by the Prime Minister. The Ministers are entrusted to oversee
their individual ministries and to implement government policy. The
Council holds weekly meetings which are presided over by the President.
The cabinet also proposes legislation to parliament through bills and
supervises public legal entities operating under their ministries’.
• Parliament Of France
• France has a bicameral parliamentary system made up of the National
Assembly (lower house) and the Senate. A total of 577 Deputies are elected
to the National Assembly every five years by individual districts. Members
of the Senate are elected by an electoral college, comprised of district
council members, deputies, and municipal council members. The 348
Senators are elected for a six-year term. Members of Parliament are elected
for two rounds during the election. An aspiring candidate is elected on the
first round when he/she accumulates an absolute majority of total votes.
The second round is mostly a runoff between two candidates.'
• Judiciary Of France
• France has a strong independent judiciary which oversees the judicial
system’s operations. Judges of the Court of Cassation are appointed by the
President after nominations are put forward by the high Council of the
Judiciary. There is a nine-member constitutional council which ensures the
constitutionality of proposed legislation or decrees.
• Administration Of France
• France is divided into 22 administrative regions, each governed by an
elected regional council. The council is mandated to stimulate social and
economic activities. The 22 regions are further broken down into 96
 50

departments, the governance of which is mandated to the elected general

council. The departments are further divided into districts and communes.
The communes are governed by the mayor and undertake municipal
responsibilities.
• Are there hybrid forms of government, like a semi- presidential
SLIDE VIII Are there hybrid forms of government, like a semi
presidential form?
• France the semi-presidential form is a government in which a president and
a prime minister are both active participants in the day-to-day
administration of the state. It differs from a parliamentary republic in that
it has a popularly elected head of state who is more than a purely
ceremonial figurehead, and from the presidential form in that the cabinet,
although named by the president, is responsible to the legislature, which
may force the cabinet to resign to a motion of no confidence. The term was
first coined in a 1978 work by political scientist Maurice Duverger to
describe the French Fifth Republic, which he dubbed a régime semi-
présidentiel.
French Unitary System
• France is a unitary semi-presidential republic with both a President and a
Prime Minister who share power.
• The French parliament is a bicameral legislature comprising a National
Assembly and a Senate.
• The National Assembly deputies represent local constituencies and are
directly elected for 5-year term.
• The Assembly has the power to dismiss the cabinet, and thus the majority
in the Assembly determines the choice of government.
• An electoral college chooses senators for 6-year terms (originally 9-year
terms), and one half of the seats are submitted to election every 3 years
starting in September 2008.
• The Senate's legislative powers are limited; in the event of disagreement
between the two chambers, the National Assembly has the final say, except
for constitutional laws and lois organiques (laws that are directly provided
for by the constitution) in some cases.
• The government has a strong influence in shaping the agenda of
Parliament . France is a republic. The type of government it has is called a
parliamentary democracy.
• France has a unitary semi-presidential republic. They have a President and
Prime Minister.
 51

• A unitary state is a state whose three organs of state are governed

constitutionally as one single unit, with one constitutionally created
legislature.
• The semi- presidential system is a system of government in which a Prime
Minister and a President are both active participants in the day-to-day
administration of the state. The government of the French Republic is a
semi-presidential system determined by the French Constitution of the fifth
Republic.
• The nation declares itself to be an "indivisible, secular, democratic, and
social Republic".
• The constitution provides for a separation of powers and proclaims
France's "attachment to the Rights of Man and the principles of national
sovereignty as defined by the Declaration of 1789."
• The national government of France is divided into an executive, a
legislative and a judicial branch.
• The President shares executive power with his or her appointee, the Prime
Minister. The cabinet globally, including the Prime Minister, can be
revoked by the National Assembly, the lower house of Parliament, through
a "censure motion";
• This ensures that the Prime Minister is always supported by a majority of
the lower house.
• It passes statutes and votes on the budget; it controls the action of the
executive through formal questioning on the floor of the houses of
Parliament and by establishing commissions of enquiry.
• The Constitutional Council checks the constitutionality of the statutes;
members of which are appointed by the President of the Republic, the
President of the National Assembly, and the President of the Senate.
Former Presidents of the Republic also are members of the Council. The
independent judiciary is based on a civil law system, which evolved from
the Napoleonic codes. It is divided into the judicial branch (deali
• ng with civil law and criminal law) and the administrative branch (dealing
with appeals against executive decisions), each with their own independent
supreme court of appeal: the Court of Cassation for the judicial courts and
the Conseil d'Etat for the administrative courts.
• The French government includes various bodies that check abuses of
power and independent agencies. France is a unitary state.
• However, the administrative subdivisions—the regions, departments, and
communes—have various legal functions, and the national government is
prohibited from intruding into their normal operations.
 52

• Since the Revolution of 1789, France has had an uniform and centralized
administration, although constitutional changes in 2003 now permit greater
autonomy to the nation's regions and departments.
• The country is governed under the 1958 constitution (as amended), which
established the Fifth French Republic and reflected the views of Charles de
Gaulle.
• It provides for a strong president, directly elected for a five-year term; an
individual is limited to two terms as president. A premier and cabinet,
appointed by the president, are responsible to the National Assembly, but
they are subordinate to the president.
• The bicameral legislature consists of the National Assembly and the
Senate. Deputies to the 577-seat National Assembly are elected for five-
year terms from single-member districts.
• The 348 senators are elected for six-year terms from each department by
an electoral college composed of the deputies, district council members,
and municipal council members from the department, with one half of the
Senate elected every 3 years.
• France's 22 administrative regions have a directly elected regional council,
primarily responsible for stimulating economic and social activity.
• The regions are further divided into 96 departments (not including the four
overseas departments), which are governed by a locally elected general
council, with one councilor per canton. Further subdivisions are districts,
cantons, and communes.
• The districts and cantons have little power. The communes, however, are
more powerful because they are responsible for municipal services and are
represented in the national government by the mayor.
• France's political institutions have undergone several changes since the
1789 revolution.
• The present constitution, adopted in 1958 and revised in 1962, established
the Fifth Republic and provided for a powerful president, originally
Charles DE GAULLE, and a bicameral legislature with less power than it
had in the past. The National Assembly is elected every five years. The
minimum voting age is 18 years.

FEATURES OF THE CONSTITUTION OF GREAT BRITAIN

• The official designation of GREAT BRITAIN is “United Kingdom of
Great Britain and Northern Ireland.”
 53

• The British constitution is the product of evolution. It has constantly in

the process of development.
• It is derived from different sources: conventions, charters, statutes,
judicial decisions and eminent works done by scholars on the subject.
• Some important features of the British constitution are:
1) Evolved constitution: - British constitution is the result of evolution of political
institutions over centuries. It is based on conventions which are modified by
judicial decisions and laws of parliament. It is not one document but a number of
historical documents. According to Prof. Munro, “the English constitution is not
a completed thing but a process of growth. It is the child of wisdom and chance,
whose course has sometimes been guided by accident and sometimes by high
designs.”
2) Partially written and Partially Unwritten:-Another important feature of it is its
unwritten character. The rules and principles controlling the distribution and
regulation of governmental powers have never been written anywhere else. Most
of the constitutional principles have grown by experiences. It is not the handiwork
of any constitution making body or Assembly. The unwritten nature of the British
constitution does not mean that none of the principles are written. There are
several written parts, like Magna Carta, Bill of rights, Reforms Acts, and
Parliamentary Acts of 1911 and 1949. The unwritten part is much heavier than
the written part.
3) Evolutionary: - British constitution is the child of wisdom and chance. It has
evolved itself. It is the oldest among existing constitutions. Its general frame work
has undergone no revolutionary change for the past three centuries.
4) Flexible character:-In Britain there is no difference between ordinary law and
constitutional law .The British parliament is supreme. The power to make and
amend the constitution is vested with it. By the simple process of law making
anything can be added and deleted from it. Since the method of amendment is
simple; British constitution is flexible in nature.
5) Difference between theory and practice:-There exist a great gap between the
constitutional theory and governmental practice in Britain. Theoretically the
government of Britain is vested with the Crown. All of the government are the
servants of the Crown. They are summoned and dismissed at the royal discretion.
No law is effective without the Crown’s consent. The King is the commander in
chief of all armed forces.
The King alone can declare war and peace treatises .Theoretically the King is the
source of all governmental powers But all this is in theory. In practice the King
 54

has become merely a figurehead. He reigns, but does not rule. The government
of Britain is in ultimate theory and absolute monarchy; but in actual practice – a
democratic constitutional limited monarchy. All the governmental powers are
now shifted from the King to the people’s representatives in parliament. Hence
the practice has quite overturned the theory. Truly speaking the King has now
powers only through ministers.
6) Parliamentary sovereignty: -In Britain the parliament is sovereign to make or
unmake any law. No institution in England is competent to challenge the Acts of
parliament. There is no judicial review. Whatever the parliament does is legal and
constitutional.
7) Unitary constitution: -British political system is unitary and not federal in form.
In Britain all functions of the government are exercised by one single Central
government. There is no division of powers between central and provincial
governments. Provincial governments have no original powers. They are created
by the central government for the administrative convenience. They can be
altered or abolished by the central government at any time.
8) Parliamentary form of government: - England is the mother of parliamentary
form of government. The Executive (Cabinet) is always responsible to the
parliament. Theoretically all powers are concentrated in the hands of the King but
in practice he is only a nominal executive. All his powers are exercised by the
Cabinet headed by the Prime Minister. The cabinet (council of ministers)
constitute the real executive and they are selected from the parliament. The
cabinet is always collectively and individually responsible to the parliament.
9) Rule of law:- Another unique feature of the British constitution is the system
of rule of law, which is evolved in Britain. It means that the government acts
according to the system of laws. It has never been enacted as a statute but implicit
in the various acts of the parliament; judicial decisions and in the common law.
It actually implies the supremacy of law in England. There is no act which lays
down the fundamental rights of the people. The fundamental rights of the citizens
are protected by the principle of rule of law. Prof A.V. Dicey has given three
interpretations to the principle of rule of law.
10) Independence of judiciary: - Independence of judiciary has been assured in
British constitution. Appointed judges, rather than elected judges, enjoying
security of tenure and emoluments, have been accepted, as factors responsible for
the maintenance of judicial independence. In Britain the crown and Lord
Chancellor appoint the judges, and are removable only by the sovereign on an
address from both houses of parliament. Judges are chosen from distinguish
 55

lawyers who are very popular in their profession. Judges are well paid and their
salaries are secured by charging them on the consolidated fund.
11) Checks and balances: - British constitution is based on the principle of checks
and balances. The parliament can pass a law but no law can be implemented
unless and until the Queen signs it. Likewise no order of the queen is valid unless
and until it is countersigned by some minister. The cabinet is always responsible
to the parliament and the parliament can vacate the cabinet by passing a no-
confidence motion. The parliament can also vacate the parliament by asking the
Queen to dissolve the parliament. The convention is that whenever the Prime
Minister asked for the dissolution, the queen must do so.
12) Absence of the doctrine of separation of powers: - The doctrine of the
separation of powers does not apply completely in Britain. The Queen is the head
of the executive and judiciary and is also an integral part of the legislature. The
Lord Chancellor is a member of the cabinet; president of the House of Lords and
the head of the judiciary. The cabinet is the chief executive and the cabinet
ministers head all the departments of the government. At the same time, the
ministers are the members of the parliament. Hence under the British constitution
the cabinet, the legislature and judiciary are closely and continuously associated.
Their relation is not in the nature of separation.
13) British constitution is the blend of Monarchy, Aristocracy and democracy: -
British constitution has harmoniously blended within itself the three different
features of Monarchy, Aristocracy and Democracy. The King represents the
Monarchy, which rests on the hereditary principle. The House of Lords is
Aristocratic representing the lords and nobles of the land. The House of
Commons, the lower house of the parliament is democratic, representing the
people of the country.
14) Cabinet system: - The cabinet is the real executive in Britain. The cabinet is
exercising the vast and growing powers of the Crown. The cabinet has become
the supreme directing authority and the pivot of the whole political machinery.
To quote Bagehot “the cabinet is a hyphen that joins, the buckle that binds the
executive and legislative departments together” Today, it is the centre of British
administration.

FEATURES OF THE CONSTITUTION OF U.S.A

The present constitution of United States of America was adopted at the famous
Philadelphia convention held in 1787. It came into force in 1789.It is the oldest
written constitution of the world. Its nature, size, system of government,
 56

legislature, executive, judiciary, and even the system of distribution of powers

are specific and unique. Following are some of the specific features of the
Constitution of USA.
1) Written character: - Like all other federal constitutions in the world, the
American constitution is written in form. It was the product of the Philadelphia
convention. Delegates from 12 states attended the convention and later the
representative of Rhode Island agreed with the original draft. It established a
federal government allowing maximum liberty to the states. At the time of
adoption of the constitution, 13 states joined the federation and later the number
has arisen from 13 to 50.
2) Rigid character:-The constitution of USA is the most rigid constitution of the
world. A lengthy and complicated process can amend it. The procedure for
amendment as prescribed in the constitution is distinct from the procedure
adopted in making an ordinary law. The amendment necessitates the participation
of both the sets of government. The rigidity of the constitution is obvious from
the fact that, only 26 amendments have been made, so far.
3) Federal character: - The American constitution is federal in character.
Originally it was a federation of 13 states but due to admission of new states, it is
now a federation of 50 states. A constitutional division of powers has been made
between the centre and the federating units. The constitution enumerates the
powers of the federal government and leaves the residuary powers to be exercised
by the federal states. The constitution thus creates a weak centre. However, the
federal centre has become very powerful due to the application of ‘ implied
powers’ as propounded by the Supreme Court of America.
4) Supremacy of the Constitution: - The constitution is the supreme law of the
land. Neither the Centre nor the states can override the constitution. The Supreme
Court of America can declare a law or an executive order repugnant to the
constitution unconstitutional and invalid.
5) Separation of Powers: - This is also a feature of the American constitution. It
is based on the doctrine of the ‘separation of powers’ as expounded by
Montesquieu in his ‘Spirit of Laws’. Accepting this theory, the three branches of
government: legislature, executive and judiciary are separated, as much as,
possible. The Congress, the executive process by the President and the judicial
process by the Supreme Court operates the legislative process.
6) Checks and balances: - The application of the theory of the separation of the
powers in its application in the absolute sense would make government itself in
difficulty. The framers of the constitution, therefore, introduced a new doctrine,
 57

to avoid the difficulty, called ‘checks and balances’. The powers of one organ
were so devised as to exercise a check upon the powers of others. The three organs
of government have been interlocked and inter checked. The President through
his veto power checks the Congress but the Congress can override his veto by a
two-thirds vote. The President has also another power known as ‘pocket veto’.
By using this power he can kill a bill presented to him. The Congress, in turn,
checks the President through its power to appropriate money and to impeach the
President. The Senate’s confirmation is required for all important appointments
and treaties made by the President. The Supreme Court depends upon the
Congress in several respects.
7) Bill of rights: - The Constitution guarantees fundamental rights of person,
property and liberty. These rights were not enumerated in the original constitution
but incorporated in it by a number of amendments. The rights of citizens are
enforceable by recourse to the judiciary. These rights cannot be suspended except
by a constitutional amendment.
8) Judicial review:-The SC and the lower federal courts possess the power of
judicial review. It can declare any legislation or executive order null and void if
the same is found to be inconsistent with the constitution.
9) Republican: - Unlike Great Britain, the USA is a republic with the President
as its elected head. The Constitution derives it authority from the people.
Moreover, every federal state of USA has a republican form of government.
10) Presidential form of government: - The constitution provides for a
presidential form of government in USA. All executive powers are vested with
the president. Constitutionally his election is indirect but in practise it has become
direct. He is not responsible to the Congress, the legislature of the country. He
does not attend the sessions, nor initiate legislation directly nor answer questions.
The Congress can not remove him from office during the term of his office
(4years).The president can not dissolve the Congress. The members of his cabinet
are neither the members of Congress nor answerable to it.
11) Dual citizenship: - The US constitution provides for dual citizenship for the
people of USA. An American is the citizen of the USA and also of the state where
he is domiciled.
12) Popular Sovereignty: - The American constitution is based on popular
sovereignty. The ultimate sovereignty in USA is attributed to the people.
13) Bicameral Legislature: - Like Britain, USA has a bicameral legislature: House
of Representatives (lower house) and Senate (Upper house). Unlike other upper
houses in the world, the upper house of USA, senate, is more powerful than the
 58

lower. It is equipped with legislative, executive and judicial powers. It is

described as the most powerful upper chamber in the world. It is a compact house
consisting of 100 members. Its tenure is six years. The lower house consists of
435 members and they are elected for only two years.
14) Spoils system: - Another ingredient of USA is its spoil system. According to
this system a government office was considered as a spoil for the services
rendered to the prospective president at the time of presidential election. Hence,
so long as a particular president was in power, he had his supporters in all offices.
If their party was ousted in the next election, they had to tender their resignation
and the new president had to keep their substitutes in those key posts. It led to
inefficiency and corruption.

CONSTITUTION OF FRANCE
France has been described as a laboratory of political experiments. In the field
of constitution making the French hold a world record. Prior to the great
revolution- The French Revolution of 1789- France had an autocratic government
(absolute monarchy), which ignored the interests of the people. The principles of
liberty, equality and fraternity were uplifted in the Revolution and adopted the
declaration of the rights of man and citizen. France inaugurated the representative
democracy. Prior to the revolution there was no written constitution and the king
ruled by ‘divine right’. There was a sort of parliament called, ‘Estates General’.
The features of the constitution are the following:-
1) Preamble: - The constitution contains a preamble which affirms the
Declaration of human rights of 1789.The Declaration was based on the doctrine
of ‘natural law and ‘general will’ and was guaranteed by the right of free speech,
press, assembly, and religion. It also guaranteed the principle of government
through representation, protection against arbitrary arrest, and the right of the
accused to be presumed innocent until proved guilty. But the Preamble is only a
statement of principles without any legal basis. These principles cannot be
enforced by any judicial action.
2) Written Constitution: - The constitution of Vth Republic is a written
document, enacted by a constitutional committee under the leader of Gen De
Gaulle. It consists of 92 articles grouped into XV titles. It is a brief document like
the American Constitution. The constitution incorporates five principles: -
universal suffrage, responsibility of the government to the parliament, separation
of the legislature and the executive, independence of judiciary, and the provision
of organising the relationship between the Republic and the associated people.
 59

3) Rigid Constitution: - Like the 1946 constitution this constitution also includes
a special procedure for amendment. -Article 89.According to this Article, a
proposal for revision must, to be effective, to be voted first in identical terms by
both the houses of parliament and then ratified by a referendum or, if the president
decides otherwise, by a three- fifth (3/5) majority of both houses meeting in joint
session. The republican form of government is not subject to revision. No
amending procedure may be commenced or continued if it is prejudicial to the
integrity of the nation and territory. The above-mentioned provisions for the
amendment of the constitution, it is clear that the constitution is a rigid document
and cannot be amended through the ordinary law-making procedure like that of
British constitution.
4) A mixture of parliamentary and Presidential forms: - The constitution of the
fifth republic seeks to combine two different principles – the principle of
parliamentary democracy and the principles of presidential democracy. The text
of the constitution is incomplete of the system of government, so it is difficult to
label the constitution as parliamentary or presidential. But it provides for a
parliamentary system of government. The head of the state and the head of the
government are different. The Prime Minister and his colleagues are responsible
to the parliament. Prime Minister selects and on the recommendation of the Prime
Minister, the President dismisses the ministers. He presides over the cabinet
meetings. The two houses of parliament are democratically elected. The judiciary
is independent. The citizens enjoy fundamental liberties, and are possessed of the
right of equality before law, without distinction as to origin, race or religion. The
government of Vth Republic is actually more a quasi- presidential than a quasi-
parliamentary. The authority of the President is more than the prime minister. The
President is real executive like the president of America. He appoints his prime
minister and other ministers on the advice of the prime minister. He administers
the oath of office and secrecy and accepts their resignation. The decisions of the
government are taken in accordance with his wishes. It shows the traits of
presidential government.
5) Popular sovereignty: - Article 2 of the constitution declares France as an
indivisible, secular, democratic, and social republic. The motto of the republic is
‘liberty, equality, and fraternity’ and its principle, is the government of the
people, by the people and for the people. National sovereignty belongs to the
people, (Article 3) who shall exercise their sovereignty through their
representatives and by means of referendum. Neither section of the people, nor
any individual can attribute to itself the exercise of sovereignty. Suffrage may be
direct or indirect under the conditions provided by the constitution. It is always
universal, equal. and secret. All men and women, who have reached their maturity
 60

and who possess their civil and political rights have the franchise under the
conditions determined by law.
7) Republican form of government: - France is indivisible, secular and democratic
republic. It assumes equality before law of all citizens without distinction of race,
origin and religion. It respects all beliefs. The head of the state-the President - is
elected directly by the people.
8) Separation of legislative and executive powers: -Another important feature of
the 1958 constitution is the separation of legislative and executive powers.
Executive power is not derived from the parliament. The ministers may not
depend upon the shifting support of political parties. The government is in charge
of legislation and even effective criticism is difficult. The president may refer a
bill for referendum or he may postpone a referendum even after a bill is passed
by the parliament Under the 1958 constitution the premier of France is nominated
by the president. The premier selects his team of ministers who are appointed by
the president.
9) Constitutional council: - The constitutional council is a unique institution of
France under Vth republic. It has given the function of deciding the
constitutionality of governmental or parliamentary acts. The council consists of
9 members, whose term of office is 9 years and is not renewable. One third of its
members will be renewed in every three years. Three members are nominated by
the president of the republic, three by the president of National Assembly and
another three by the president of the senate. All former presidents are the ex-
officio member of the council. The constitutional council supervises the election
of the president of the Republic. It examines electoral petitions. It decides the
regularity of the election of deputies and senators. It supervises the procedure of
a referendum and announces its result. All ordinary laws may be submitted to the
council before its promulgation to examine its constitutional validity.
10) Recognition of political parties: - The 1958 constitution recognises the
existence of political parties. Act 4 of the constitution says that political parties
and groups may compete for the expression of the suffrage. They may freely form
themselves and exercise their activities. They must respect the principles of
national sovereignty and of democracy.
11) Advisory and judicial organs:- One of the advisory organs set up by the 1958
constitution is Economic and Social Council. It gives opinion on the government
bills, ordinances and orders and private member’s bills submitted to it by the
government. It may be consulted on any problem of an economic or social nature
concerning the republic. Another advisory body is the High Council of Judges
 61

and Public Prosecutors. Its function is to advice the government on appointments

to a limited number of higher judicial posts. It also gives its opinion on the
proposals of the minister of justice relative to appointments of other judges.
12) Untidy, vague and Ambiguous: - The 1958 constitution of France has been
called as an untidy constitution which is in some places vague, and in others
ambiguous. It does not completely describe the system of government and has
omitted provisions for a number of extremely important institutions.
Executive, Legislature And Judiciary Of UK
The British Monarch
In the administrative system of Britain, the King or the Queen is the head of the
executive, and all administrative functions are performed in his/ her name. In
principle, the Crown makes all the laws. It is he/ she who implements or enforce
all the laws and makes arrangements for the punishment of those who violates the
laws. But the actual position is quite different. Although all the functions are
performed in the name of crown, yet she does not have power to perform even a
single function. All the functions are performed by the council of ministers or the
cabinet headed by the Prime Minister. The monarchy is the oldest political
institution of Britain. The Prime Minister and other ministers in the cabinet now
exercise the real executive power; they govern with the support of the majority
of the members of the House of Commons (lower house) and are collectively
responsible to it.
POWERS AND POSITION OF THE KING
Executive powers :The king is the head of the state. All administrative powers
are vested in him. He appoints the Prime minister, ministers and all the civil and
military officers and they remain in office as long as it pleases His Majesty. He
is the supreme commander of the armed forces, sends and receives ambassadors
and other diplomatic agents.
Legislative Powers: The legislative powers of the king are extensive. He
summons, prorogues and dissolves parliament. When a new session of parliament
commences, he reads to the members of both the chambers the speech from the
throne. He assents to bill passed by parliament. He can refuse assent to any bill.
The king creates the peers.
Judicial powers: The king is the foundation of justice. He has the prerogative of
granting pardon to criminals or reducing or postponing their sentence. The king
appoints judges and all criminal proceedings are started in the name of king.
Fountainhead of honour The king is the fountainhead of honour. It means that all
 62

honours, titles etc. flow from the king. He bestows decorations and titles such as,
peerage and knighthood, upon those who have done meritorious service to the
nation.
Power to dissolve the parliament :Another important power of the crown is
dissolution of the parliament. This is the part of the royal prerogative but the
house is dissolved only on the advice of the prime minister who advises the Queen
only after consultation with the cabinet.
Head of the church The king is called ‘defender of the faith’. He is head of the
established churches of England and Scotland. In that capacity he appoints
archbishops and bishops.
Actual Position of the king: In theory the king exercises all the above powers, but
in reality they are exercised by various other agencies. The king must act on the
advice of the ministers. Minister, who is responsible to the House of Commons,
countersigns all his acts. The king has no power. He reigns but does not govern.
When he has no real power, he cannot be held responsible for acts that are
performed in his name. Therefore he can do no wrong. If any act done in his name
be wrong, the minister concerned would be held wrong. But the above description
does not mean that the king is nonentity. There are certain functions which the
king actually performs. He has a right to advise his cabinet and this right he does
exercise.
The Privy Council: The Privy Council is an important institution in the
governmental system of England. There was a time when it was the chief source
of executive power in the state. As the cabinet system developed, the Privy
Council gradually lost its importance. Many of its powers were transferred to the
cabinet and much of its work was handed over to newly created government
departments, some of which were originally the committees of the Privy Council.
CABINET
The cabinet is the most powerful institution in the political system of England.
The fact that the British system of government is known as Cabinet system
indicates the key position the cabinet occupies in the governmental machinery of
the country. According to Prof. Bagehot, Cabinet, is a hyphen which joins, a
buckle which fastens, the legislative part of government to the executive part of
government. Lowell calls it ‘the key stone of political arch’ Ramsay Muir
describes it as ‘the steering wheel of the ship of the state’ The cabinet system of
Britain functions on the basis of certain principles which may be termed its salient
features. Composition of the Cabinet When a new government is to be formed,
the first step is the appointments of a prime minister by the monarch. Now it is a
 63

well-established convention that the Prime Minister must be a member of the

House of Commons. The monarch has to summon the leader of the majority party
in the House of Commons to form the government. As soon as the prime minister
has been designated, he proceeds to draw up a list of other ministers. All ministers
must have seats in one or another of the two chambers of parliament. But it is not
essential that a minister should be a member of parliament at the time of
appointment. He may be first appointed, and then he may qualify himself with a
seat either by election to the House of Commons or being created a peer. The
Prime Minister also assigns to each minister his individual portfolio in
consultation with other party leaders.. When the list is finally completed, the
Prime Minister submits it to the king by whom the formal appointments are made.
FUNCTIONS OF THE CABINET
Executive Functions The cabinet is the principal custodian of executive power
and coordinator of administrative action. But legally, the cabinet is not the
executive. In legal the executive is the king. It is the ministers who carryout the
day-today business of the government. So in the ultimate analysis the exercise of
executive power is directed and controlled by the cabinet. To formulate policy As
the ultimate custodian of executive power, the most important functions of the
cabinet is to formulate a clear policy. It is deliberative and policy formulating
body. It discusses and decides upon all sorts of problems, national and
international. Inside the cabinet, ministers can express their opinions freely and
frankly, but when decisions have been taken, all of them, must oblige to it .Failure
to do so would have disciplinary consequences, perhaps a removal from the
cabinet. Coordination The day –today ministers in charge of various departments
carry out business of government, but administrative functions cannot be rigidly
divided between them and the activities of one department may affect other
departments. It is, therefore, the essential functions of the cabinet, to coordinate
the activities of various departments, iron out their differences and impart
coherence and unity to the administration as a whole. Orders in council It may
remember that legally speaking, the cabinet has no authority ‘to direct anybody
or order anything’. The cabinet surmounts this difficulty by resorting to the device
of orders in council. Legislation In England there is no separation of powers; the
executive and legislature are not independent to each other. All ministers are
members of the parliament and responsible to House of Commons. Therefore, the
cabinet has very important role to play in legislation. Though legally all
legislative powers are vested in parliament, nowadays it is the cabinet that
legislates, with the advice and consent of parliament. All bills introduced by the
cabinet are invariably passed due to the assured support of the majority party.
Controlling the budget The cabinet controls the national finance. It is responsible
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for the whole expenditure of the state and for necessary revenue to meet it. The
government prepares the estimates for expenditure and the treasury decides upon
proposals for taxation. The budget containing proposals of expenditure and
revenue is placed before the House of Commons by the cabinet.
THE PRIME MINISTER
The British Prime Minister stands out head and shoulders above his Cabinet
colleagues. But his office is not legally established. His powers and functions are
not formally defined. However, his position was legally recognised by the
Ministers of the Crown Act 1937. Selection of the Prime Minister In theory it is
the sovereign who chooses the Prime Minister. But in practice his choice is
determined by the electorate. After the election the sovereign summons the leader
of the majority party in the House of Commons to form government.
POWERS OF THE PRIME MINISTER
Powers over the Cabinet In the words of Morley the Prime Minister is the
keystone of the cabinet arch. Although in the cabinet all its members stand on an
equal footing, yet as its head, the Prime Minister is, first among equals. He also
presides over cabinet meetings. He exercises a general supervision over the
activities of other ministers. He settles disputes between departments, controls
the cabinet secretariat and is generally responsible for seeing that departments
faithfully implement cabinet decisions.
Powers in relations with the Monarch: The prime minister is the confidential
advisor of the Crown and the principal channel of communication between the
cabinet and the monarch. The Prime Minister alone has access to the Queen. It is
his duty to put government business before her in a systematic manner.
Powers in Parliament: The prime minister is also leader of the House of
Commons. In the house he represents the cabinet as a whole. No other minister
can play that role. His statements on the government’s policy are regarded as
authoritative. He answers questions on the general conduct of the government.
He spokes on most important bills. He can advice the monarch to dissolve the
house of commons.
Spokesman of the nation: The Prime Minister is the principal spokesman of the
nation on international problems. In international conferences it is he who speaks
for the nation. His position in foreign affairs is so important that he is always in
close contact with the foreign secretary. There may be occasions when an
immediate decision has to be taken by him on some urgent international question
when there is no time to hold a meeting of the cabinet.
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Powers of dissolution of the House of Commons: The Prime Minister can request
the sovereign to dissolve the House of Commons at any time. It means that the
members of the house hold their seats at his mercy. This terrifying power enables
him to maintain discipline in his party in parliament and to the commons. The
members of the House of Commons do not like to run the risk of a fresh election.
It is clear from the above that the Prime Minister occupies a unique position in
the governmental system of England.
Ministerial responsibility :The principle of ministerial responsibility is a very
important feature of British governmental system. Responsibility implies two
things: liability before the court of law and responsibility to the House of
Commons. The first form of responsibility is legal. If an act, which a minister has
countersigned, is illegal, then that minister can be held responsible for that Act in
a court of law. The second form of responsibility is based on conventions. This is
the essence of parliamentary system of government. The members of the
executive are individually and collectively responsible to the House of Commons
for every policy that adopt and for every action that they take. There are many
methods of enforcing ministerial responsibility. They are by the device question,
by vote of censure, by no confidence motion and by rejection of bill or adoption
in different form.
THE BRITISH PARLIAMENT
Parliament is the supreme legislative authority in the British political system. It
has been called the mother of parliaments. It consists of the Queen, the House of
Lords and the House of Commons. The consent of all the three parts of parliament
is necessary for a piece of legislation to become a legal enactment with binding
force. Moreover, parliament has unlimited power- it is sovereign and legally
omnipotent. No law passed by parliament can be challenged as unconstitutional
in a court of law, which is not the position in federal states like USA and India.
The House of Commons is the real centre of power of in British parliament.
THE HOUSE OF LORDS
The House of Lords is the upper house or the second chamber of the British
parliament. It has more than 1000 members, the number varying through deaths
and the creation of new peers. It consists of seven categories of members. The
House of Lords is made up of hereditary and life peers and peeresses, lord
spiritual and the law lords who perform the judicial functions of the house. The
presiding officer of the lords is the Lord Chancellor who occupies the woolsack.
FUNCTIONS OF THE HOUSE OF LORDS
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1. Executive powers The House of Lords enjoys a share in executive powers.

Some ministers are members of the House of Lords. The lords have the right to
ask questions, to seek information from the government on any aspect of
administration and debate its policies. But the ministers are not responsible to the
House of Lords.
2. Legislative powers and functions It examines and revises the legislative work
sent up by the House of Commons.
3. Financial powers On the matter of money bill the House of Lords has no power
at all.
4. Judicial powers The house of lords was the supreme court of appeal for cases
in the UK and Great Britain and Northern Ireland and a court of impeachment for
the trial of important officers of the Crown. As the highest court of appeal the
whole house never meets. It is only the Law Lords which performs the judicial
functions of the House. 1 October 2009 marks a defining moment in the
constitutional history of the United Kingdom: transferring judicial authority away
from the House of Lords, and creating a Supreme Court for the United Kingdom.
The house of lords has been criticised on the grounds of its composition, class
character and dominance by a single party and capitalist ideology.
5. The House of Commons The House of Commons is the oldest popular
legislative chamber in the world. There are 635 members in the House of
Commons. The normal tenure of the house is 5 years which may be extended in
emergencies like war or the house may be dissolved earlier by the Crown if the
Prime Minister wishes to have fresh mandate to gain solid majority. The most
important official of the house is Speaker who holds one of the ‘most honourable,
dignified offices in the world,. His duty is to maintain law and order in the house.
The members of parliament enjoy certain privileges. The first and foremost is the
freedom of speech which is ensured to all members by the bill of rights.
POWERS AND FUNCTIONS OF HOUSE OF COMMONS
Law making Its most important function is law making. Parliament is the supreme
law making body, with no legal restrictions on its powers. A bill is passed by the
Commons goes to the House of Lords, and if passed by that house, it is presented
to the King for his assent which is invariably given. However, the House of Lords
can delay the passage of a bill by one year. Financial functions The House of
Commons is supreme in financial matters. All money bills originate in the
Commons. The term ‘money bill’ is so defined as to include measures relating
not only to taxation but also appropriation and loans and audits. The power to
decide whether a bill is or is not a money bill is given to the speaker of the House
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of Commons, with no appeal from his decision Controlling the executive The
ministry emerges from the House of Commons. The Crown calls the majority
party in the house to form ministry. Most of the members of the cabinet belong
to the House of Commons. The ministers are collectively and individually
responsible to the House of Commons. They hold their office only so long as they
enjoy the confidence of House of Commons. The opposition can move a censure
motion or a vote of no-confidence in the House of Commons and thereby bring
out the fall of the ministry. As the Commons controls the purse, no ministry can
afford to ignore its wishes. Ventilation of grievances It is a function of the House
of Commons to call attention of the executive to administrative and other abuses
to demand the redress of public grievances. This is done through the practice of
asking question and through general debate. Selective functions The House of
Commons is a training ground for politicians. This gives encouragement to
ambitious member to work hard and ultimately able men and women manage to
reach the top rungs of the political larder.
COMPARISON OF BRITISH AND AMERICAN LEGISLATIVE
PROCESS
Although basically they seem to be similar, there are many differences between
two systems. In the USA there is no distinction between private bills and public
bills and between a government bill and private members bill. All bills are
introduced in the American Congress by private members. In USA, the chairman
of the committees plays an important role. In England, bills are referred to
committees after their fundamental principles have been approved by the House
of Commons or the House of Lords. In England there is a regular time for asking
questions and replaying to them. In the USA when a Congressman desires
information from any department, he telephones or writes for it. In England the
members of parliament deliver all speeches. However, in USA many undelivered
speeches are also printed. Judicial system in England It is desirable to refer to
some of the salient features of the judicial system in England. The first thing to
be noticed is that the courts in England have reputation for fairness, impartiality
and incorruptibility. Another feature of the English judicial system is the absence
of judicial review.
In the case of USA and India, the courts have the power to decide as to whether
a particular law is ultra virus or unconstitutional. There are no separate
administrative courts in England. In the case of France, there are two separate sets
of courts, viz. Ordinary and Administrative courtsAn important feature of the
British judicial system is the distinction between the civil and criminal courts
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applying the laws. There are two separate kinds of courts to hear civil and
criminal cases.
Rule of Law Rule of law is one of the unique characteristics of the English
constitution. The British judicial system is based on the doctrine of Rule of Law.
The ‘Rule of Law’ means that administration is carried on in accordance with the
law of the land. Law is supreme over all. None can claim exemption or immunity
from it. Organization of the Judiciary The present judicial system of England
based is on the Acts passed during the 1870s. There is no uniform judicial system
for the whole country. There is difference in the judicial systems for the different
parts of the country.
HOUSE OF LORDS
The House of Lords was the highest court in Britain till 2009.. It had original and
appellate jurisdiction. It was the highest court, both in civil and criminal matters.
Civil courts Country court is the smallest court of the country. There is one judge
in the court. The country courts hear cases controlling certain amount of money
or property worth that amount. The high court is a part of Supreme Court. It has
three divisions known as chancery division, king’s bench division, and probate,
divorce and admiralty division. Criminal Courts The lowest criminal court is
summary jurisdiction. It deals with petty offences. From these courts, appeal can
be taken to court of quarter session. These courts are also known as country
courts. Appeals can further be taken to the Assizes. Appeal can be further taken
o the court of criminal appeal. The House of Lords is the highest court of appeal
for Great Britain and Northern Ireland. A certificate of the Attorney – General is
essential in criminal cases. Supreme Court of UK The Supreme Court is a
relatively new Court being established in October 2009 following the
Constitutional Reform Act 2005. Formerly, the Highest Court of Appeal in the
United Kingdom was the House of Lords Appellate Committee made up of Lords
of Appeal in Ordinary, also known as Law Lords. This Law Lords with other
Lord Justices now form the Supreme Court. Such Law Lords were allowed to sit
in the House of Lords and were members for life. The judges of the Supreme
Court of the United Kingdom are known as Justices of the Supreme Court, and
they are also Privy Counsellors. Justices of the Supreme Court are granted the
courtesy title Lord or Lady for life. The Supreme Court is headed by the President
and Deputy President of the Supreme Court and is composed of a further ten
Justices of the Supreme Court. The Justices do not wear any gowns or wigs in
court, but on ceremonial occasions they wear black damask gowns with gold lace
without a wig.
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THE AMERICAN EXECUTIVE - THE PRESIDENT

• According to Article II section I of the American constitution, the
executive power shall be vested in a President of the USA, who shall hold
office during the term of four years.
• An electoral college elects the president of USA. Although
constitutionally the method of election is indirect, the growth of political
parties and political customs has converted it into a direct method.
• In the presidential system government, the executive is constitutionally
independent of the legislature in respect of duration of tenure, and is not
responsible to political policies.
• In such system, chief of the state is not merely the titular executive, but he
is the real executive, and actually exercises the powers which the
constitution and laws confer upon him.
• Qualification Any natural –born American citizen, at least thirty five years
of age and fourteen years of resident with in the US may stand for election.
Removal from office
• The President may be removed from office before his legal term is over
on impeachment for and conviction for treason, bribery, or high crimes of
misdemeanours.
• The House of Representatives adopts, by a majority vote of the members
present, articles of impeachment charging the person with certain high
crimes and enumerates his particular offences. The charges thus prepared
are submitted to the Senate.
• The Senate then fixes a date for hearing the charge and sits as a court. The
President is being tried by the Senate, which is being presided by the Chief
Justice of the Supreme Court. After the arguments of both sides have been
heard, the Senate may decide by 2/3 majority to impeach the president.
Powers and Functions
• The President of USA is the most powerful elected executive in any
democratic country in the world. His powers may be discussed under three
heads executive, legislative and judicial.
EXECUTIVE POWERS
The president’s executive powers are derived from the constitution, from statutes,
and from the implications of his office.
a) Head of Administration: He is the head of the administration. It is his duty to
see that constitution, laws and the treaties of the US and judicial decisions
rendered by the federal courts are duly enforced throughout the country. In the
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fulfilment of his duty, he may direct heads of departments and their subordinates
in the discharge of the functions vested in them by the Acts of congress.
b) Power of Appointments: As administrative head, the President appoints, with
the advice and consent of a simple majority of the senators present, ambassadors,
ministers, consults federal judges, and other officers of United States.
c) Senatorial Courtesy: There are a number of federal officers, especially those
of a local nature, who are subject to a rule known as senatorial courtesy. This rule
decrees that the senate will refuse to confirm the President’s nomination of an
appointee in a particular state if their senator from the state objects.
d) Power of Removal: The power to appointments, according to Supreme Court
interpretations, includes power to remove.
e) Power of Foreign Affairs: The conduct of foreign affairs is in the hands of the
President, but a treaty made by him requires ratification of two-third of the
Senate.
f) Power in War:The President is commander-in- chief of the armed forces and
thus the authority for ensuring national defence.
g) Control Over cabinet: Cabinet is made up of his personal choices and is
completely subordinates to him. He is not bound by its decisions. The President
can force any cabinet member to resign or to pursue particular policies within his
department.
LEGISLATIVE FUNCTIONS
American political system being non-parliamentary, the President is neither
chosen by the legislature, nor can be removed by it. He and his advisors do not
have the right to be present in Congress and take part in its deliberations. They
are, therefore, not in a position directly to provide initiative and guidance in law
making. Besides, the President does not have the right to dissolve any of the
Houses of Congress. It does not, however, mean that the President’s role in
legislation is insignificant. His legislative powers are follows:
a) Informative Powers :The constitution states that the President shall from time
to time give the Congress information of the state of the Union, and recommended
to their consideration such measures as he shall judge necessary and expedient.
b) Power to Summon Session: The President is authorised to summon
extraordinary session of one or both houses of Congress
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c) Budgetary Power: The Budget and Accounting Act of 1921 gives him power
over the preparation of national budget that he submits to Congress with annual
budget message.
e) Refusal of assent of Bill: He may refuse his assent to a bill passed by the
Congress. This is an effective power to prevent hasty and unwise legislation and
has been frequently used.
f) Power to Veto: In certain circumstances this limited or suspensive veto may
become an absolute veto.
JUDICIAL POWERS
The President has the power to grant reprieves and pardons for offences against
the state, except in case of impeachment. Power of Head of the State The
President of United States is not only the head of the executive branch of the
government, he is also the head of the state and performs, like the British Queen,
the ceremonial dignified functions. The functions of the head of the state and the
head of the government are combined in his person. This fact imparts special
dignity and prestige to his office.
AMERICAN PRESIDENT VS. BRITISH PRIME MINISTER
In the democracies of the world the office of the President of America and that
of Prime Minister of England are regarded as most powerful, prestigious and
dignified. The two offices represent two different systems of government, one
presidential and other parliamentary.
The following points are the main differences of the two executive systems.
Different methods of election
• An electoral college elects the US President indirectly, but in effect his
election is direct.
• The titular head of the state, i.e., the Queen, appoints the British prime
Minister, on other hand, though her choice is confined to the leader of the
majority party in the House of Commons.
• Duration of office US president is elected for fixed term of four years. He
cannot be removed from his office except by impeachment. The Prime
Minister, on other hand, remains in his office only as long as he and his
party command confidence of a majority in the House of Commons.
• Differences as Head The President of USA is the head of the state as well
as of the Government. The British Prime Minister on the contrary, is the
only the head of the government
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• Difference in Answerability: The executive and legislature spheres of the

government are clearly demarcated, and the authority of the President in
his sphere is supreme. He is not answerable to the Congress for his acts.
The position of the Prime Minister is totally different. He is responsible to
the parliament and answerable to it not only for his own acts but also for
those of his cabinet members.
• Difference in Power over Cabinet: The American President appoints the
members of his cabinet and can dismiss them at will. Though the Prime
Minister chooses his ministers and can dismiss them, they are not
completely subordinate to his wishes. In many respects they are his equals.
• Differences in Legislative Power: In the legislative sphere the position of
the American president is definitely weaker than that of the British prime
Minister. Cabinet The cabinet has been described as an extra statutory and
extra constitutional body. It is a mere creation of President’s will and made
up of his personal choice. It exists only by custom. The cabinet is a purely
consultative body. It has no rule of procedure; President discusses the
special affairs of each department with its heads separately.
THE AMERICAN LEGESLATURE (THE CONGRESS)
The legislature of USA is known as Congress. Congress is a bicameral
legislature, consisting of Senate and the House of Representatives. In accordance
with the dictates of the theory of separation of powers, the US constitution vests
the law-making powers of the federation in the Congress of the United States.
The Senate is the upper chamber. Unlike the British House of Lords, the
American upper house is elected.
There are many differences in the functioning of the legislatures of UK and
USA.
• The Senate: The Senate is the upper chamber of American Congress. The
American constitution is federal. So it needs a powerful upper chamber to
represents the states. In accordance with the federal principle, all states are
equally represented in the senate. Each state elects two senators. As there
are 50 states, there are 100 members in the senate. The senate members
are directly elected by the people on the basis of universal adult franchise.
Each member has a six-year term. One third of members of the senate
retire every two years. So the Senate enjoys a permanent tenure.
POWERS AND FUNCTIONS OF THE SENATE
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Legislative Powers
The Vice-president of America presides over the meetings of the Senate. In the
field of legislation, the senate possesses equal powers with the House of
Representatives, except money bill. But the senate has the right to amend any
money bill or budget. The Senate is the most powerful second chamber in the
world.
Executive Powers
The American President makes a number of appointments to federal offices.
These appointments are to be confirmed by the Senate. Judicial Powers The
Senate conducts the trial of impeachment of the President and the judges’ of the
Supreme Court. Apart from these, the Senate enjoys equal power with the House
of Representatives in amending the constitution.
The House of Representatives
The House Representatives is the lower house of the American Congress.
However, despite being a lower house, it enjoys less power than the upper house,
the senate. There are 435 members in this house. . The people on the basis of
universal adult franchise directly elect the members. The term of office of the
house is two years. The house elects a speaker to preside over the meetings.
Powers and functions The house of representatives enjoys powers in legislative,
financial, constituent, electoral and judicial spheres.
Ordinary Legislation
The constitution empowers the House of Representatives to enact laws on any
subject includes in the federal list. A legislative measure can be initiated in any
of the two chambers. The legislative powers of the two houses are absolutely
equal. Finance The money bill can be introduced only in this House. But the
American lower house cannot override the upper house like the British lower
house. Thus, the financial powers of the House of Representatives are, in effect,
not superior to those of senate. Constitutional Amendments In methods of
proposing amendments the House of Representatives have coequal powers with
the senate.
Admission of new States
The constitution empowers Congress to admit new states to the Union. The
House of Representatives shares with Senate equal powers to admit new states to
the Union. Impeachment The House of Representatives initiates impeachment
proceedings by framing charges against the officer concerned.
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Investigation
The House of Representatives, like the Senate, appoints investigation
committees to enquire into the working of the executive departments. In this way
it enforces accountability of the administrative departments.
The Speaker
The chairman and leader of the House of Representatives is its speaker, who is
elected by the members of the House from amongst themselves. Unlike England,
the election of the American speaker is not unanimous. The American speaker
does not resign from his party after his election. He presides over the sittings of
the House of Representatives and performs normal duties of a presiding officer.
He maintains order and decorum in the house. He recognizes members and allows
them to speak. This is a most important power. But he has no power to punish an
unruly member. That power belongs to the House itself.

THE AMERICAN JUDICIARY

The American constitution gives special significance to the judiciary. It has the
power of judicial review. The USA is a federation. So there are two sets of courts
known as Federal Courts and State Courts. Thus, there is a dual judicial system.
The courts in the state are not subordinate to the federal courts. The judiciary in
America is normally divided into constitutional courts and legislative courts. The
former are those courts which have been established under Article III of the
constitution and which deal with ‘cases’ and ‘controversies’. The latter courts are
created by the Congress.
SUPREME COURT
The Supreme Court stands apex of the federal court system, which includes 11
circuit courts or court of appeal. The Supreme Court is the highest federal court.
The President with the approval of the Senate appoints the judges of the Supreme
Court. The constitution does not say anything about the qualification of the
judges. The judges are appointed for life time. They can be removed only by
impeachment.
POWERS AND FUNCTIONS
It has original jurisdiction in all cases affecting ambassadors, other public
ministers and consul and cases in which a state is a party. It has appellate
jurisdiction. The Supreme Court acts as the guardian of the fundamental rights.
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The Supreme Court has advisory functions too. The President may seek its advice
on general matters. The Supreme Court interprets the constitution. Judicial review
is an important power of the Supreme Court. Federal courts In USA below the
federal courts, there are circuit courts of appeals. They here appeal from lower
courts. Below the circuit courts, there are district courts. These courts would hear
the cases related to federal laws. Apart from these, Congress may establish certain
special courts. Court of the State Each state in the USA has its own judicial
system. Each state has a supreme court. It is the highest court in a state. Below
the Supreme Court, there are intermediary courts of appeal. These courts hear
appeal against the decisions of the lower court. These courts hear both civil and
criminal cases. Below the intermediary courts, there are districts or county courts.
Besides this there are some small courts. These courts decide local problems and
disputes. The judges of this courts are elected. Judicial Review The ‘judicial
review’ is the power of the judiciary to examine the laws passed by the legislature
and orders issued by the executive. Through judicial review, the judges determine
whether such laws are in accordance with the provisions of the constitution or
not. If the judiciary feels that any law or executive order under dispute
contravenes any provision of the constitution, it can declare the same ultra virus
and unconstitutional. This power to declare a law null and void is called judicial
review. By judicial review the Supreme Court prevents the federal government
and state from going beyond their limits.

THE POLITICAL EXECUTIVE OF FRANCE

• The government of the French Republic is a semi-presidential system
determined by the French Constitution of the fifth Republic.
• The nation declares itself to be an "indivisible, secular, democratic, and
social Republic".
• The constitution provides for a separation of powers and proclaims
France's "attachment to the Rights of Man and the principles of national
sovereignty as defined by the Declaration of 1789." The national
government of France is divided into an executive, a legislative and a
judicial branch. The President shares executive power with his or her
appointee, the Prime Minister.
• Parliament comprises the National Assembly and the Senate. It passes
statutes and votes on the budget; it controls the action of the executive
through formal questioning on the floor of the houses of Parliament and
by establishing commissions of enquiry.
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• The constitutionality of the statutes is checked by the Constitutional

Council; members of which are appointed by the President of the
Republic, the President of the National Assembly, and the President of the
Senate. Former Presidents of the Republic also are members of the
Council.
• The independent judiciary is based on a civil law system which evolved
from the Napoleonic codes. It is divided into the judicial branch (dealing
with civil law and criminal law) and the administrative branch (dealing
with appeals against executive decisions), each with their own
independent supreme court of appeal: the Court of Cassation for the
judicial courts and the Conseil d'Etat for the administrative courts.
• Election of the President: The President of France is elected by direct
universal suffrage for a term of seven years. There is no bar to re election.
Article 7 provides that the President is to be elected by an absolute
majority of the vote casts. If this is not obtained in the first ballot, there is
a second ballot on the second Sunday following. Only the two candidates
who have received the greatest number of votes on the first ballot present
themselves, taking into account the possible withdrawal of more favoured
candidates.
POWERS AND FUNCTIONS OF THE PRESIDENT
• The French Fifth Republic is a semi-presidential system. Although it is the
Prime Minister of France and parliament that oversee much of the nation's
actual day-to-day affairs, the French President wields significant influence
and authority, especially in the fields of national security and foreign
policy.
• The president holds the nation's most senior office, and outranks all other
politicians. The president's greatest power is his/her ability to choose the
Prime Minister. However, since the French National Assembly has the
sole power to dismiss the Prime Minister's government, the President is
forced to name a Prime Minister who can command the support of a
majority in the assembly.
• When the majority of the Assembly has opposite political views to that of
the president, this leads to political cohabitation.
• In that case, the President's power is diminished, since much of the de facto
power relies on a supportive Prime Minister and National Assembly, and
is not directly attributed to the post of President. When the majority of the
Assembly sides with him, the President can take a more active role and
may, in effect, direct government policy.
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• The Prime Minister is then the personal choice of the President, and can
be easily replaced if the administration becomes unpopular. The president
promulgates laws. The President may also refer the law for review to the
Constitutional Council prior to promulgation.
• The President has a very limited form of suspensive veto: when presented
with a law, he or she can request another reading of it by Parliament, but
only once per law.
• The President may dissolve the French National Assembly. The President
may refer treaties or certain types of laws to popular referendum, within
certain conditions, among them the agreement of the Prime Minister or the
parliament.
• The President is the Commander-in-Chief of the French Armed Forces.
The President names the Prime Minister but he cannot dismiss him. He
names and dismisses the other ministers, with the agreement of the Prime
Minister.
• The President names certain members of the Constitutional Council. The
President may grant a pardon to convicted criminals; the President can also
lessen or suppress criminal sentences.
• This was of crucial importance when France still operated the death
penalty: criminals sentenced to death would generally request that the
president commute their sentence to life imprisonment.
• All decisions of the President must be countersigned by the Prime
Minister, except the dissolution of the French National Assembly.
• Discretionary Powers Besides the powers discussed before, the
constitution vests the President with discretionary powers, in the exercise
of which the countersignature of the premier is not required. The
constitution specially mentioned four such powers.
First, the President can declare the dissolution of National Assembly. The second
discretionary power of the President relates to submission of bills to a
referendum. Third power of the President is related to emergency. Finally, the
President must submit to the constitutional council organic laws before their
promulgation and regulation of parliamentary assemblies before they came into
application.
FRENCH PRESIDENT AND THE AMERICAN PRESIDENT
The President of France is elected by direct suffrage. The US President formally
elected by a electoral college, but in actual practice his election also becomes
direct. Both presidents have a fixed tenure. Both preside over the council of
ministers secretaries and issue orders. Both are commanders of the armed force
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of their country. Both have right to return bill to parliament for reconsideration.
But the President of France has some special powers, which US President does
not possess. The French President can dissolve the National Assembly. The
French President enjoys emergency powers.
The French President makes appointments to civil and military posts. Such
appointments are not subject to ratification by any of the chambers of the
legislature. The French President has the discretionary power to submit a bill to
referendum. In some respects American President enjoys more power than his
French counterpart. In US, the cabinet is responsible only to the President.
The American President is the sole executive authority. The French President
does not enjoy that position. There is council of ministers which determines and
directs the policy of the nation. The French Council of Ministers The French
council of ministers is composed of the Prime Minister and other ministers. In the
language of the constitution, this council is the Government of the Republic. The
President appoints the Prime Minister, and on the proposal of the Prime Minister
appoints other ministers.
The Prime Minister and other members of the government are not members of
parliament. The council of ministers is a collective body and its decisions are the
decisions of all of its members. The council of ministers are responsible to
parliament. The National Assembly can defeat the government either on its
programme or on a declaration of general policy.
In such a situation, the government as a whole resigns. The President presides
over the council of ministers. Functions The council of ministers determines and
directs the national policy. It has at disposal the administration and directs the
policy of the nation. Ministers direct operations of the government. He is
responsible for national defence.
He ensures the execution of the laws. The Prime Minister has the right to initiate
legislation. Government bills are first discussed in the council of ministers and
then filed with the secretariat of one of the two assemblies. The government may,
in order to carry out its programme, ask parliament to authorize it, for a limited
period, to take through ordinance measures that are normally within the domain
of law. The Prime Minister has the right to propose amendments to the
constitution through the President of the Republic.
The Cabinet plays a major role in determining the agenda of the parliament
houses. It can propose laws and amendments during parliamentary sessions. It
also has a number of procedures at its disposal to expedite parliamentary
deliberations. French legislature- Parliament The French Parliament is the
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bicameral legislature of the French Republic, consisting of the Senate and the
National Assembly Each assembly conducts legislative sessions at a separate
location in Paris: The Senate is elected indirectly for a term of nine years, one
third of its members retiring after every three years. It represents the territorial
units of the republic.
French citizens living outside France are also represented in it. The National
Assembly is a representative chamber elected for a term of five years. But it can
be dissolve earlier by the president. The President of the National Assembly is
elected for the duration of the legislature. The President of the senate is elected
after each partial re-election of the senate.
Parliament is empowered to convene two ordinary sessions in a year. It convenes
an extraordinary session at the request of the Prime Minister or of the majority of
the members comprising the national assembly, to consider a specific agenda.
The president has the right to send message to Parliament. Members of Parliament
enjoy parliamentary immunity.
POWERS AND FUNCTIONS -FRENCH PARLIAMENTINB
Legislative Functions Unlike the British Parliament, the French Parliament is not
a sovereign law- making body. Its powers are limited. The subjects on which
parliament can make laws have been enumerated in Article 34 of the constitution.
Apart from this rule making power of the executive, the government may also,
with the permission of the parliament, take over, for a limited period, the
responsibility for dealing with mattes that fall within the domain law. Financial
Powers In financial mattes also, the French parliament does not enjoy supreme
power. The government to parliament submits the finance bill. Bill and
amendments introduced by members of parliament cannot be considered when
their adoption has, as consequences, either a diminution of public financial
resources or the creation or increase of public expenditure. Article 47 prescribes
the procedure for enacting the finance bill.
If the National Assembly does not complete the first reading of the bill within a
time limit of 40 days, the government refers the bill to Senate, which must rule
within a time limit of 15 days. If the parliament fails to reach a decision within a
time limit of 70 days, the provisions of the bill may be enforced by ordinance.
Control of the Executive Although the members of the government are not the
members of the parliament, they are responsible to it.
• There are three methods of enforcing ministerial responsibility. First, the
Premier, after deliberation by the council of ministers, may pledge the
responsibility of the government to the National Assembly with regard to
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the programme of the government or with regard to a declaration of general

policy.
• Second, the National Assembly may question the responsibility of the
government by the vote of a motion of censure.
• Third, the Premier, after deliberations by the council of ministers, may
pledge the government’s responsibility to the National Assembly on the
vote of a text. Declaration of War and ratification of treaties In France,
parliament authorizes the declaration of war.
• Treaties are negotiated and ratified by the President. But peace treaties,
commercial treaties, treaties or agreement for the finance of the state, those
that modify provisions of legislative nature, those relating to the status of
persons, and those that call for cession, exchange or addition to territory,
may be ratified only by law.
• It is evident from the above that the constitution of the fifth republic has
considerably restricted the power of the parliament. The Judicial System
of France In France, judges are considered civil servants exercising one of
the sovereign powers of the state, and, accordingly, only French citizens
are eligible for judgeship.
• France's independent judiciary enjoys special statutory protection from the
executive branch. Procedures for the appointment, promotion, and removal
of judges vary depending on whether it is for the judicial, administrative,
or audit court stream. A special panel, the High Council of the Judiciary,
made up of other judges from receiving court, must approve judicial
appointments. Once appointed, judges serve for life and cannot be removed
without specific disciplinary proceedings conducted before the Council
conducted in due process.
• The Ministry of Justice handles the administration of courts and judiciary
including paying salaries or constructing new courthouses. The Ministry
also funds and administers the prison system. Lastly, it receives and
processes applications for presidential pardons and proposes legislation
dealing with matters of civil or criminal justice.
• The Minister of Justice is also the head of public prosecution, though this
is controversial since it is seen to represent a conflict of interest in cases
such as political corruption against politicians. At the basic level, the courts
can be seen as organized into: ordinary courts, which handle criminal and
civil litigation and administrative courts (ordre administratif), which
supervise the government and handle complaints The structure of the
French judiciary is divided into three tiers: Inferior courts of original and
general jurisdiction; Intermediate appellate courts which hear cases on
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appeal from lower courts; Courts of last resort, which hear appeals from,
lower appellate courts on the interpretation of law. Organization of the
Constitutional Council The constitution of Fifth Republic establishes three
principal judicial organs in addition to the regular courts. In the first place,
there is the constitutional council. It consists of nine members whose term
of office lasts nine years.
• One third of membership is renewed every three years. The President, three
by the president of National Assembly and three by the president of the
Senate appoints three of members. Former Presidents of France are ex-
officio members for life of the constitutional council.
• The President of France appoints the president of the constitutional
council. High Council of Judiciary Article 64 of the constitution provides
that the President of the Republic shall be guarantor of the independence
of the judicial authority. He is assisted by High Council of the judiciary.
He presides over the council. The high council presents nominations for
judges of the Supreme Court and first presidents of courts of appeal. It is
consulted on questions of pardon.
• The council is also acts as a disciplinary council for judges. The High
Court of Justice Article 67 of the constitution provides for a High court of
Justice. It is composed of members of parliament elected, in equal number,
by National Assembly and Senate, after general or partial election to these
assembles. The Ordinary Court System The lowest court in France is the
tribunal d’ instane (tribunal for instance). There are 454 such tribunals.
These tribunals consist of only one judge.
• He decides minor civil and criminal cases. Above these are 23 courts of
appeal. They hear appeals against the judgements of the lower courts. The
highest court in France is the Court of Cessation (supreme court of appeal).
The judges of this courts are appointed by the President on the
recommendation of the High Council of the Judiciary.
• It only hears appeal and has no original jurisdiction. Administrative Courts
A peculiar feature of the French judicial system is that there are separate,
administrative courts. These courts administer what is known as
administrative law. Dicey defines administrative law as that “body of rules
which regulate the relations of administration or administrative authority
towards private citizens”.
• Administrative law deals with the liability of the state and municipal bodies
for the wrong done to private individuals or property. There are separate
courts in France to decide suits brought by private individuals against
officials. There are 23 administrative tribunals. These are the courts of first
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instance for deciding cases involving administrative law. Each

administrative tribunals consist of a President and four members appointed
by the Minister of Interior.
• The Council of State is the highest administrative court. It is composed of
15 members who are appointed by the President of France. It is divided
into several sections. The judicial section is further divided into chambers
in which five councillors decide cases.
• They hear appeals from administrative tribunals. The council has also
original jurisdiction in certain matters. The council of state has got other
powers as well. government bills are discussed in the council of state. The
government enacts ordinances after consultation with the council of state.
Rule of Law and Administrative law
There are certain differences between the concepts of rule of law and
administrative law. Under rule of law there is a single system of courts. All
cases are tried in the same kind of courts. But under administrative law, there
are two sets of courts, known as ordinary courts and administrative courts. The
basic idea of rule of law is equality of all citizens in the eyes of law. But under
administrative law, the government officers are above ordinary citizens.

Fundamental Rights Origin

• The concept of human rights originated from natural law philosophers like
John Locke and Jean-Jacques Rousseau.
• They pondered over the idea of human rights and tried to preserve them by
postulating the Social Contract Theory.
• Locke propounded that man is born “with a title to perfect freedom and an
uncontrolled enjoyment of all the rights and privileges of the Law of
Nature.”
• He also theorized that he has power, by nature, “to preserve his property
that is, his life, liberty and estate against the injuries and attempts of other
men.”
• Way back in 1215, the English were successful in exacting a promise from
their monarch King John for the respect of the ancient liberties.
• Their success is evident in the form of the Magna Carta, the first written
document with reference to the fundamental rights of citizens.
• Again in 1689, the Bill of Rights was enacted consolidating basic civil
rights and liberties for the English. In 1789, the Declaration of the French
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Revolution stated that “the aim of all political association is the

conservation of the natural and inalienable rights of man.”

Fundamental Rights in India

• In India, the explicit inclusion of the fundamental rights in the Constitution

was inevitable because of a number of reasons. The chief reasons are
discussed below:
• The major political party, Indian National Congress, during the course of
its struggle for independence, had been demanding these rights from the
British.
• British rule saw large scale violations of human rights in the country. Many
of the Constitution-makers were themselves incarcerated by the British
during the freedom struggle, and therefore, they had a positive attitude
towards fundamental rights.
• Another important reason for the inclusion of these rights was the fact that
Indian society was fragmented into various religious, linguistic and cultural
groups, and fundamental rights were needed to give all citizens a sense of
security and confidence.
• In India, the fundamental rights are provided for in Part III of the
Constitution i.e., in Articles 12-35.
• These include rights that are universal in their nature and application like
the right of equality guaranteed under Article 14 and the right to life and
personal liberty provided for under Article 21.
• Moreover, there are also rights that are unique in application to India e.g.
Abolition of Untouchability under Article 17 and protection of the rights
of cultural and linguistic minorities under Articles 29 and 30.
• In addition, the right to enforce these fundamental rights is also a
fundamental right in India by virtue of Article 32 of the Constitution
whereby an individual can approach the Supreme Court if any of his
fundamental rights are violated.
The Supreme Court has, in addition to the rights that are explicitly provided under
Part III, added some rights which according to its interpretation are implicit in the
already provided rights. These rights include Freedom of Press which the
Supreme Court has stated is implicit in the Right to Freedom of speech and
expression provided under Article 19(1)(a). Similarly, the apex court while
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interpreting Article 21 has read into it rights like, right to human dignity, right to
shelter, right to a clean environment and many others.

Fundamental Rights in the United Kingdom

The history of human rights in the United Kingdom is one of the oldest. An
integral part of the UK Constitution, human rights derive from common law, from
statutes such as the Magna Carta, the Bill of Rights of 1689 and the Human Rights
Act 1998, from membership of the Council of Europe, and from international law.
Codification of human rights is recent, but the UK law had one of the world’s
longest human rights traditions. Today the main source of jurisprudence is the
Human Rights Act 1998, which incorporated the European Convention on
Human Rights into domestic litigation.
The Human Rights Act of 1998 sets out the human rights under different articles,
some of the more prominent rights set up in the Act are as follows:
Right to life – Article 2
Freedom from Slavery and Forced labour – Article 4
Right to a Fair Trial – Article 6
Freedom of Thought, Belief and Religion – Article 9
Freedom of Expression – Article 10
Right to Education – Protocol 1, Article 2
Abolition of Death Penalty – Protocol 13, Article 1
The Act incorporates the rights provided in the European Convention of Human
Rights which essentially means that the citizens can agitate the violation of their
rights in the British Courts instead of going to the European Court of Human
Rights. The Act requires all public bodies like Courts, Police and Hospitals to
respect and protect the human rights that are guaranteed to individuals under this
Act.
Conclusion
The concept of human rights developed in the UK long before they did in India
and as such the basic human rights or fundamental rights were available to the
British before they were to the Indians. However, the concrete codification of
these rights into domestic law took place in India half a century before the United
Kingdom. The fundamental rights provided in the Indian Constitution, while
retaining the rights that are universal in application, also provides for rights that
are unique to India because of its diversity. In conclusion, it must be said that
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while the development of human rights in the two countries is at different stages,
it is largely due to historical and cultural factors.

EARLIER RECOGNITION OF BASIC RIGHTS:

As early as in 1215, the English people exacted an assurance from King John for
respect of the then ancient liberties. The MAGNA CARTA is the evidence of
their success which is a written document. This is the first written document
relating to the fundamental rights of citizens. In 1689, the BILL OF RIGHTS was
written consolidating all important rights and liberties of the English people. The
DECLARATION OF THE FRENCH REVOLUTION, 1789 provided that, “the
aim of all political association is the conservation of the natural and inalienable
rights of man.”

CONSTITUTIONAL RECOGNITION: - THE PROCESS BY WHICH

BASIC RIGHTS BECAME FUNDAMENTAL RIGHTS: -

The underlying idea in entrenching certain basic rights is to take them out of the
reach of the transient political majorities. It has, therefore, come to be regarded
as essential that these rights be entrenched in such a way that they may not be
violated, tampered or interfered with by an oppressive government. With this end
in view, some written constitution’s guarantee a few rights to the people and
forbid governmental organs from interfering with the same. In that case, a
guaranteed right can be limited or taken away only by the elaborate and formal
process of the constitutional amendment rather than by ordinary legislation.
These rights are characterized as fundamental rights.

FUNDAMENTAL RIGHTS IN THE US CONSTITUTION: -

The modern trend of guaranteeing fundamental rights to the people may be traced
to the Constitution of the USA. The original constitution as drafted in the year
1787 did not contain any fundamental right. There was trenchant criticism of the
US Constitution on this point. Following the spirit of the MAGNA CARTA of
the British and the DECLARATION OF THE RIGHTS OF MAN AND THE
CITIZENS OF FRANCE, the Americans incorporated the BILL OF RIGHTS in
their constitution in the year 1791 in the form of TEN AMENDMENTS and thus
the Americans were the first to give Bill of Rights a constitutional status.
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PURPOSE:- In West Virginia State Board of Education v. Barnette,1 JUSTICE

JACKSON explaining the nature and purpose of Bill of Rights in the USA
observed:- “The very purpose of the Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place them beyond the
reach of majorities and officials, to establish them as legal principles to be applied
by the courts. One’s right to life, liberty and property, to free speech, a free press,
freedom of worship and assembly and other fundamental rights may not be
submitted to vote; they depend on the outcome of no elections.”

FUNDAMENTAL RIGHTS IN BRITAIN: - Initially, till the year 1998, there

was no formal declaration of people’s fundamental rights in Britain. The orthodox
doctrine of the sovereignty of Parliament was prevailing there which did not
envisage any legal check on the power of the Parliament. There was concept of
Rule of Law which represents, in short, the thesis that the executive is answerable
to courts for any action which is contrary to the law of the land. There was an
ever growing realization that guaranteed civil rights do serve a useful purpose and
that, Britain should also have a written Bill of Rights.
On July 7, 1975 a resolution was moved in the House of Commons demanding
that England should have a Bill of Rights…. Later on Britain had accepted the
European Charter on Human Rights. But this was not good enough because the
Charter did not bind the Parliament but could be used only to interpret the local
law. What was, therefore, necessary was a Bill of Rights which could curb
parliamentary legislative power. As SCARMAN observed: “Without a Bill of
Rights protected from repeal, amendment and suspension by the ordinary process
of a bare parliamentary majority controlled by the government of the day, human
rights will be at risk.”

ENACTMENT OF THE HUMAN RIGHTS ACT, 1998

- Ultimately, the British Parliament enacted the Human Rights Act, 1998. The
purpose of the Act is to give effect to the rights and freedoms guaranteed under
the European Convention on Human Rights. The Act incorporates the Convention
in Schedule I. These are the rights to which the Act gives effect. All legislation,
so far as possible, is to be read and given effect to in a way which is compatible
with Convention Rights [Section 3(1) (a)]. The Act is a significant constitutional
innovation.
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FUNDAMENTAL RIGHTS IN INDIA- Coming to India, a few good reasons

made the enunciation of the fundamental rights in the Constitution rather
inevitable. Firstly, the main political party, the Congress, had for long been
demanding these rights against the British rule. During the British rule in India,
human rights were violated by the rules on a very wide scale. Therefore, the
framers of the Constitution, many of whom had suffered incarceration during the
British regime, had a very positive attitude towards these rights. Secondly, the
Indian society is fragmented into many religions, cultural and linguistic groups
and it was necessary to declare fundamental rights to give to the people a sense
of security and confidence.

IMPACT OF THE US CONSTITUTION- The constitution of USA has been

the source of inspiration for the inclusion of fundamental rights in the
Constitution. The original US Constitution did not contain any provision relating
to fundamental rights, however, in the year 1791 the Bill of Rights was
incorporated in the US Constitution in the form of ten amendments, and thus, the
Americans became the first to give the Bill of Rights a constitutional status. When
the Indian constitution was being framed the background for the incorporation of
Bill of Rights was already present. The framers took inspiration from this and
incorporated a full Chapter in the Constitution dealing with fundamental rights.
But, the fundamental rights contained in Part III of the Constitution of India differ
from the US Bill of Rights.

DIFFERENCE BETWEEN PART III OF THE INDIAN CONSTITUTION

AND THE US BILL OF RIGHTS-

While the declarations in the American Bill of Rights are absolute and the power
of the state to impose restriction upon the fundamental rights of the individual in
the collective interests had to be evolved by the Judiciary. In India, this power of
imposing restrictions has been expressly conferred upon the legislature by the
Constitution itself, in the case of the major fundamental rights, of course, leaving
a power of judicial review in the hands of the judiciary to determine the
reasonableness of the restrictions imposed by the legislature.

NEED FOR FUNDAMENTAL RIGHTS-

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Fundamental rights were deemed essential to protect the rights and liberties of
the people against the encroachment of the power delegated by them to their
government. They are limitations upon all the powers of the government,
legislative as well as executive and they are essential for the preservation of
public and private rights. These rights are regarded as fundamental because they
are most essential for the attainment by the individual his full intellectual, moral
and spiritual status. The negation of these rights will keep the moral and spiritual
rights stunted and his potentialities underdeveloped. Part III of the Constitution
serves as remainder to the government in power that certain liberties assured to
the people by the Constitution are to be respected. The object behind the inclusion
of Part III in the Constitution is to establish a government of law and not of man.

NEED FOR FUNDAMENTAL RIGHTS AND OBSERVATION OF THE

SUPREME COURT-

In Daryao v. State of U.P., the SC observed that, “the fundamental rights are
intended not only to protect individual’s rights but they are based on high public
policy. Liberty of the individual and the protection of his fundamental rights are
the very essence of the democratic way of life adopted by the Constitution

In Golak Nath v. State of Punjab, 4 the SC held that, Part III of the Constitution
of India guarantees certain fundamental rights because they are considered
necessary for the development of human personality. These rights enable a man
to chalk out his own life in the manner he likes best.

In Maneka Gandhi v. Union of India, 5 SC observed that, fundamental rights are

calculated to protect the dignity of the individual and creates conditions in which
every human being can develop his personality to the fullest extent.

FUNDAMENTAL RIGHTS- TO WHOM AVAILABLE-

Part III of the Constitution of India deals with various fundamental rights in its
Articles 12-35. The fundamental rights in Articles 15, 16, 19, 29 and 30 are
available only to citizens, while the rights guaranteed by other Articles are
available to the citizens and non-citizens alike.
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FUNDAMENTAL RIGHTS- AGAINST WHOM AVAILABLE-

Most of the fundamental rights in Part III of the Constitution of India are available
against the State only but some of them are also available against the private
individuals. For example- the fundamental rights gu8aranteed in Articles 14,
15(1), 16, 18(1), 19, 20, 21, 22, 25, 26, 27, 28, 29 and 30 are available against the
State only. While the fundamental rights guaranteed in Articles 15(2), 17, 23(1)
and 24 are available against the State as well as against the private individuals.

CLASSIFICATION OR KINDS OF FUNDAMENTAL RIGHTS IN INDIA-

The fundamental rights guaranteed in Part III of the Constitution have been
classified in the following categories1. Right to Equality (Articles 14-18); 2.
Right to Freedom (Articles 19-22); 3. Rights against Exploitation (Articles 23-
24); 4. Right to Freedom of Religion (Articles 25-28); 5. Cultural and Educational
Rights (Articles 29-30); 6. Right to Constitutional Remedies (Articles 32-35). It
is to be noted here that, the Right to Property guaranteed by Article 31 has been
excluded from the list of fundamental rights by the Constitution (Forty fourth
Amendment) Act, 1978 with effect from 20-06-1979.

IS THE NEW EXTENDED FORM OF ARTICLE 31-C

CONSTITUIONALLY VALID?

In Minerva Mills Ltd. v. Union of India,8 the extended version of Article 31-C
was struck down by the Supreme Court. The SC ruled that, the extension of the
shield of Article 31-C to all the directive principles was beyond the amending
process of the Parliament under Article 368, because by giving primacy to all
directive principles over the fundamental rights in Articles 14 and 19, the basic
feature of the Constitution, viz, judicial review, has been destroyed.

In Waman Rao v. Union of India, 9 the SC observed that, Article 31-C, as it stood
prior to the forty second amendment made in 1976, was valid as its
constitutionality was upheld in Keshavanand Bharti case.

But, in Sanjeev Coke Mfg Co. v. Bharat Coking Coal Co. Ltd.,10 the SC opined
that, the question of constitutional validity of Article 31-C appears to us to be
concluded by the decision in Keshavanand Bharti’s case. But this observation
appears to be an obiter dictum and not conclusive on the question of validity of
Article 31-C because in Keshavanand, Article 31-C was partly held valid and
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partly invalid and then Article 31-C referred to only two clauses of Article 39 and
not whole to all directives.
What are the exceptions to Fundamental Rights?

Saving of Laws that provide for Acquisition of Estates

Under Article 31A of the Constitution of India, Five categories of laws have been
defined from being challenged on the grounds of violation of Fundamental rights
granted by Article 14 and 19 of the Constitution. These categories are related to

• Acquisition of estates and the rights related to it by the State.

• An amalgamation of various corporations.
• Modification of mining leases or even Extinguishment.
• Taking over the management of properties by the State.
• Modification of the rights of the directors of various corporations.

EMERGENCY POWERS

The term “emergency powers” usually refers to government powers to respond

rapidly to a public emergency by:

• making regulations without an act of parliament

• Taking actions without complying with statutory duties that it would

normally have to comply with

• Taking actions that it would not normally be allowed to take.

Those powers can be set out in primary legislation or, sometimes, in regulations
made by ministers.

Emergency powers allows the government to introduce measures that may

affect fundamental rights, such as the right to liberty. These measures can only
be introduced in exceptional circumstances and should be temporary in nature.

Emergency powers can also refer to powers brought in rapidly in a crisis but
which are expected to be temporary.
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INTRODUCTION

A state of emergency is declared from a governmental declaration made due to

an extraordinary situation posing a fundamental threat to the country. The
importance of declaration of state of emergency may arise from situations that
can be a natural disaster. an armed action against the state that too by an epidemic,
a natural disaster, an internal or external element, civil unrest, a financial crisis or
a general strike. Other emergency situations are considered as a state of
exception, state of alarm and state of siege.

The implementation of emergency law leads to restrictions on economic, civil or

political activity. And the rights in economic, civil or political in order to address
the extraordinary circumstances that have given rise to the emergency situation.
But there is a chance or a danger that the authority will take advantage of a state
of emergency. The law of the country that is constitution or legislation explains
the circumstances and the reason for declaration of emergency and also the
procedures that to be followed. That also provides the specifies limits on the
emergency powers that may be invoked or the rights that can be suspended. But
here, all the countries need to define its own practices, international norms that
have developed for providing useful guidance.

FRANCE-EMERGENCY POWERS

The State of Siege

The state of siege was originally based on two Acts of 1849 and 1878. It has been
introduced in the French Constitution in 1958, at Article 36:

“The state of siege is judged in the Council of Ministers. Its extension beyond
twelve days can only be authorized by Parliament.”
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The 1849 and 1878 Acts have been repealed and replaced by a 2004 Ordinance
(delegated legislation) which codified the state of siege in the Code of Defence.
The state of siege is an emergency regime of a military nature: as soon as the state
of siege is decreed, the powers with which the civilian authority is invested for
the maintenance of order and police are transferred to the military authority. It
has not been used in France since the second World War.

Article 16 of the French Constitution

As indicated by Article 16 of the French Constitution, where "the
establishments of the Republic, the autonomy of the Nation, the uprightness
of its region or the satisfaction of its worldwide duties are under genuine and
prompt danger, and where the best possible working of the protected public
specialists is interfered",
The President of the Republic "will take estimates needed by these
conditions", remembering measures for issues which are usually saved to the
Parliament. .
The State of Emergency

The State of Emergency Act has been established in the year 1955 and is adopted
by the French Parliament. It has been activated during Algerian war in 1955,
1958, 1961, then activated in New Caledonia (1984), riots in the suburbs of Paris
(2005) and, finally during the terrorist attacks in Paris 2015- 2017. The state of
emergency is declared by the Council of Ministers. This is done after getting
signature from the President of the Republic. Without the authorization of the
Parliament, it cannot be extended beyond 12days .

The Exceptional Circumstances Doctrine

The exceptional circumstances doctrine is a jurisprudential regime and is

appeared under the name of “war powers doctrine”. According to this doctrine,
some are stated as a exceptional circumstances and are for example war,
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insurrection or natural disaster etc. Also states here in these situations, if a

decision or action of the administration which would normally be considered
illegal can be considered legal. Administrative courts assess these conditions on
a case-by-case basis.

The Enactment of a New Emergency Regime: The State of Health

Emergency

The Covid-19 Epidemic Act has been adopted on March 2020. It contains various
measures designed to cope with the epidemic. The Articles 1 to 8 of the Act is
mainly speaking about the particular issues. These provisions create a new
emergency regime, called “state of health emergency.” This regime is codified in
the Public Health Code (CSP).

US-EMERGENCY POWERS

The National Emergencies Act (NEA) (Pub.L. 94–412, 90 Stat. 1255, enacted
September 14, 1976, codified at 50 U.S.C. § 1601–1651) is a United States
federal law passed to end all previous national emergencies and to formalize the
emergency powers of the President.

The Act empowers the President to activate special powers during a crisis but
imposes certain procedural formalities when invoking such powers. The
perceived need for the law arose from the scope and number of laws granting
special powers to the executive in times of national emergency. Congress can
terminate an emergency declaration with a joint resolution signed into
law.[1] Powers available under this Act are limited to the 136 emergency
powers Congress has defined by law.[2]
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The National Emergencies Act imposes procedural requirements on the

President’s exercise of emergency powers. It has governed the declaration of
multiple emergencies.

PUBLIC HEALTH SERVICE ACT (1944)

“"If the Secretary [of Health and Human Services] determines, after consultation
with such public health officials as may be necessary, that –

(1) A disease or disorder presents a public health emergency; or

(2) A public health emergency, including significant outbreaks of infectious

diseases or bioterrorist attacks, otherwise exists”

DISASTER RELIEF AND EMERGENCY ASSISTANCE ACT (1988; earlier

iterations, known as the "Disaster Relief Act,” were issued in 1950 and 1974)

A Governor can petition the President for a declaration of major disaster or

emergency under this chapter when she reaches "a finding that [a] disaster is of
such severity and magnitude that effective response is beyond the capabilities of
the State and affected local governments and that Federal assistance is
necessary” 42 U.S.C. § 5170

42 U.S.C. § 5122 defines an emergency under this chapter as "any occasion or

instance for which, in the determination of the President, Federal assistance is
needed to supplement State and local efforts and capabilities to save lives and to
protect property and public health and safety, or to lessen or avert the threat of a
catastrophe in any part of the United States.” The same section defines a major
disaster under this chapter as "any natural catastrophe (including any hurricane,
tornado, storm, high water, winddriven [sic] water, tidal wave, tsunami,
earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or,
 95

regardless of cause, any fire, flood, or explosion, in any part of the United States,
which in the determination of the President causes damage of sufficient severity
and magnitude to warrant major disaster assistance under this chapter to
supplement the efforts and available resources of States, local governments, and
disaster relief organizations in alleviating the damage, loss, hardship, or suffering
caused thereby”

INSURRECTION ACT OF 1807

The Insurrection Act of 1807 is a United States federal law[1] that empowers
the President of the United States to deploy U.S. military and
federalized National Guard troops within the United States in particular
circumstances, such as to suppress civil disorder, insurrection and rebellion.

The act provides a "statutory exception" to the Posse Comitatus Act of 1878,
which limits the use of military personnel under federal command for law
enforcement purposes within the United State

Before invoking the powers under the Act, 10 U.S.C. § 254 requires the
President to first publish a proclamation ordering the insurgents to disperse. As
part of the Posse Comitatus Act of 1878, these provisions are now codified as
amended.

The Act empowers the U.S. president to call into service the U.S. Armed
Forces and the National Guard:

• when requested by a state's legislature, or governor if the legislature cannot be

convened, to address an insurrection against that state (§ 251),
• to address an insurrection, in any state, which makes it impracticable to
enforce the law (§ 252), or
 96

• to address an insurrection, domestic violence, unlawful combination or

conspiracy, in any state, which results in the deprivation of Constitutionally-
secured rights, and where the state is unable, fails, or refuses to protect said
rights (§ 253).
An Act authorizing the employment of the land and naval forces of the United
States, in cases of insurrections Be it enacted by the Senate and House of
Representatives of the United States of America in Congress assembled, That in
all cases of insurrection, or obstruction to the laws, either of the United States, or
of any individual state or territory, where it is lawful for the President of the
United States to call forth the militia for the purpose of suppressing such
insurrection, or of causing the laws to be duly executed, it shall be lawful for him
to employ, for the same purposes, such part of the land or naval force of the
United States, as shall be judged necessary, having first observed all the pre-
requisites of the law in that respect.

INSURRECTION Act, 1807

• Original Insurrection Act of 1807 As amended by 2007 Défense

Appropriations Bill.
• Federal aid for State governments
• Whenever there is an insurrection in any State against its government, the
President may, upon the request of its legislature or of its governor if the
legislature cannot be convened, call into Federal service such of the militia
of the other States, in the number requested by that State, and use such of
the armed forces, as he considers necessary to suppress the insurrection.
• Use of militia and armed forces to enforce Federal authority
• Whenever the President considers that unlawful obstructions,
combinations, or assemblages, or rebellion against the authority of the
United States, make it impracticable to enforce the laws of the United
States in any State or Territory by the ordinary course of judicial
 97

proceedings, he may call into Federal service such of the militia of any
State, and use such of the armed forces, as he considers necessary to
enforce those laws or to suppress the rebellion.

Interference with State and Federal law

• The President, by using the militia or the armed forces, or both, or by any other
means, shall take such measures as he considers necessary to suppress, in a State,
any insurrection, domestic violence, unlawful combination, or conspiracy, if it

(1) so hinders the execution of the laws of that State, and of the United States
within the State, that any part or class of its people is deprived of a right,
privilege, immunity, or protection named in the Constitution and secured
by law, and the constituted authorities of that State are unable, fail, or
refuse to protect that right, privilege, or immunity, or to give that
protection; or (2) opposes or obstructs the execution of the laws of the
United States or impedes the course of justice under those laws.
• In any situation covered by clause (1), the State shall be considered to have
denied the equal protection of the laws secured by the Constitution.

• Major public emergencies; Interference with State and Federal law

• (a) USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.

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• (1) The President, by using the militia or may employ the armed forces, or both,
or by any other means shall take such measures as he co e considers necessary to
including the National Guard in Federal service, to • (A) restore public order and
enforce the laws of the United States when, as a result of a natural disaster,
epidemic, or other serious public health emergency, terrorist attack or accident,
or other condition in any State or possession of the United States, the President
determines

• (1) domestic violence has occurred to such an extent that the constituted
authorities of the State or possession are incapable of maintaining public order;
and

• (i) such violence results in a condition described in paragraph (2); or

• (8) suppress, in a State, any insurrection, domestic violence, unlawful

combination, or conspiracy if it-- such insurrection, violation, combination, or
conspiracy results in a condition described in paragraph (2).

NATIONAL EMERGENCIES ACT IN US 1976

The National Emergencies Act (NEA) (Pub.L. 94–412, 90 Stat. 1255, enacted
September 14, 1976, codified at 50 U.S.C. § 1601–1651) is a United States
federal law passed to end all previous national emergencies and to formalize the
emergency powers of the President.

The Act empowers the President to activate special powers during a crisis but
imposes certain procedural formalities when invoking such powers. The
perceived need for the law arose from the scope and number of laws granting
special powers to the executive in times of national emergency. Congress can
terminate an emergency declaration with a joint resolution signed into law.
 99

Powers available under this Act are limited to the 136 emergency
powers Congress has defined by law.

Provisions

Termination of presidential authority

A prior Senate investigation had found 470 provisions of federal law that a
President might invoke via a declaration of emergency. The Act repealed several
of these provisions and stated that prior emergency declarations would no longer
give force to those provisions that remained. Congress did not attempt to revoke
any outstanding emergency declarations per se, as these remained the President's
prerogative under Article Two of the United States Constitution.

Procedure for new emergencies and rescinding emergency declarations

The Act authorizes the President to activate emergency provisions of law via an
emergency declaration on the condition that the President specifies the provisions
so activated and notifies Congress. An activation would expire if the President
expressly terminated the emergency, or did not renew the emergency annually,
or if each house of Congress passed a resolution terminating the emergency. After
presidents objected to this "Congressional termination" provision on separation
of powers grounds, and the Supreme Court in INS v. Chadha (1983) held such
provisions to be an unconstitutional legislative veto, it was replaced in 1985 with
termination by an enacted joint resolution. A joint resolution passed by both
chambers requires presidential signature, giving the president veto power over
the termination (requiring a two-thirds majority in both houses in the case of a
contested termination). The Act also requires the President and executive
agencies to maintain records of all orders and regulations that proceed from use
of emergency authority, and to regularly report the cost incurred to Congress.

Exceptions
 100

Certain emergency authorities were exempted from the act at the time of its
passage:

• 10 USC 2304(a)(1) – allowing exemption of national defense contracts from

competitive bidding.
• 10 USC 3313, 6386(c) and 8313 – regulating the promotion, retirement and
separation of military officers.
• 12 USC 95(a) – regulating transactions in foreign gold and silver
• 40 USC 278(b) – regulating federal property purchases and contracts
• 41 USC 15 and 203 – limiting the assignment of claims against the federal
government.
• 50 USC 1431–1435 – enabling the President to make national defense
contracts outside of otherwise applicable rules

The list of exceptions has from time to time been revised. For example, Public
Law 95-223 (1977) repealed the emergency clause of 12 USC 95(a) and arranged
for its authority to expire according to the normal provisions of the NEA.

• The National Emergencies Act (Pub.L. 94-412, 90 Stat. 1255, enacted

September 14, 1976, codified at 50 U.S.C. 9 1601-1651) is a United States federal
law passed to stop open-ended states situations) of national emergency and
formalize the power of Congress to provide certain checks and balances on the
emergency powers of the President.

PROCEDURAL FORMALITIES IMPOSED

• The Act of Congress imposes certain procedural formalities on the President

when invoking such powers. The perceived need for the law arose from the scope
and number of laws granting special powers to the executive in times of national
emergency.
 101

• A 1973 Senate investigation found (in Senate Report 93-549) that four declared
emergencies remained in effect: the 1933 banking crisis with respect to the
hoarding of gold, a 1950 emergency with respect to the Korean War, a 1970
emergency regarding a postal workers strike, and a 1971 emergency in response
to inflation. • Many provisions of statutory law are contingent on a declaration of

national emergency, as many as 500 by one count. It was due in part of concern
that a declaration of "emergency" for one purpose should not invoke every
possible executive emergency power, that Congress in 1976 passed the National
Emergencies Act.

• A prior Senate investigation had found 470 provisions of federal law that a
President might invoke via a declaration of emergency.

• The Act repealed several of these provisions and stated that prior emergency
declarations would no longer give force to those provisions that remained.

• Congress did not attempt to revoke any outstanding emergency declarations per
se, as these remained the President's prerogative under Article Il of the
Constitution.

• The Act authorized the President to activate emergency provisions of law via an
emergency declaration on the conditions that the President specifies the
provisions so activated and notifies Congress.

• An activation would expire if the President expressly terminated the emergency,

or did not renew the emergency annually, or if each house of Congress passed a
resolution terminating the emergency.

• After presidents objected to this "Congressional termination" provision on

separation of powers grounds, it was replaced in 1985 with termination by an
enacted joint resolution.
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• The Act also requires the President and executive agencies to maintain records
of all orders and regulations that proceed from use of emergency authority, and
to regularly report the cost incurred to Congress.

EMERGENCY POWERS UK

The Emergency Powers Act 1920 (10 & 11 Geo. 5 c. 55) was an Act of
the Parliament of the United Kingdom that gave the Sovereign power, in certain
circumstances, to declare a state of emergency by proclamation. The Act also
authorised emergency regulations to be issued by Order in Council. Upon a
proclamation, Parliament must meet within five days and the Act gave His
Majesty in Council, by Order, to make regulations to secure the 'essentials of
life to the community' and gave the relevant Secretaries of State the power for
the 'preservation of the peace' and the 'essentials of life' as defined above. Such
regulations would be laid before Parliament as soon as they were pronounced
and would expire in seven days, unless Parliament decided otherwise, of being
laid before Parliament. A proclamation of this sort could be in force for no more
than one month. The Act forbade regulations which amounted to 'compulsory
military service or industrial conscription' and ruled out regulations which
would forbid 'any person or persons to take part in a strike, or peacefully to
persuade any other person or persons to take part in a strike'. Regulations could
not allow punishment by either fine or prison without trial.
• The Act was first put into use in 1921 when the Triple Alliance was
requested by the Miners' Federation of Great Britain to join a strike over a
wage dispute. The Lloyd George government declared a state of
emergency and sent troops to the striking miners' areas. On 15 April the
partners in the Triple Alliance declined to join the strike, which became
known as 'Black Friday'.
• The Labour Prime Minister Ramsay MacDonald was tempted[citation
needed] to use the Act in 1924 when the dockers and tramway men went
on strike.
• The Act was extensively used during the General Strike of 1926, after a
state of emergency was proclaimed on 30 April 1926 on account of the
"cessation of work in coal mines and emergency regulations were
promulgated therewith and continued in force long after the general strike
had ceased. The use of the Act has been described as instrumental in the
successful resolution of the strike in the government's favour.
• Also, during 1948 and 1949 there were lengthy unofficial strikes,
particularly in the docks, so the Labour Attlee Government implemented
this Act to proclaim a state of emergency and used soldiers as strike-
breakers by getting them to unload boats
 103

in London, Liverpool and Avonmouth. The Conservative government

used the Act during the 1955 rail strike and it was also used by Labour
under Harold Wilson during the seamen's strike of 1966.
• During the Conservative government of Edward Heath there were five
declarations of emergency under this Act, by far the most any
government. The first was in July 1970 over a dockers strike, the second
in December 1970 over an electrician’s strike, the third in February 1972
over a miner’s strike, the fourth in August 1972 over another dockers
strike and the fifth time in October 1973, which lasted for four months.
• In the total time it was on the statute book this Act was used twelve
times, the last time being in 1974 and mainly used in times of industrial
unrest (i.e. strikes).
• This Act was amended by the Emergency Powers Act 1964 and
superseded by the Civil Contingencies Act

THE EMERGENCY POWERS DEFENCE ACT, 1939

• The government was given power by order in council to "make such
Regulations as appear to it to be necessary or expedient for
securing the public safety, the defence of the realm, the maintenance of public
order and the
efficient prosecution of any war in which His Majesty may be engaged, and for
maintaining
supplies and services essential to the life of the community. These powers could
be delegated
to ministers, officials, and classes of officials down the administration.
• Without prejudice to the generality of the powers so granted, certain
enumerated powers were
specifically set out in the Act.
• These were either powers which the courts had previously held to be so
drastic as not to be
implied from any general Act of Parliament, or powers likely to be so treated by
the courts.
• Thus, the government was explicitly granted power to detain "persons
whose detention appears to the Secretary of State to be expedient in the
interests of the public safety or the defence of the realm..., to take
possession of any land, property or under taking, and to impose a charge in
connection with any scheme of control.
 104

• The Act provided a system of legislative checks on the exercise of the

powers granted. Any order in council containing defence regulations could
be annulled as to its prospective operation by either House of Parliament."
• The duration of the powers granted was one year, subject to continuance
in force for additional periods of one year each on a joint address of
Parliament.
• If prior to the expiration of a year the government by order in council
proclaimed the
emergency to have ended, the powers would expire at the close of the day on
which the order
came in to operation.
• The substantive powers granted to the government, both in the general
enabling clause and in the enumerative clauses, were effectively placed
beyond the reach of judicial grounds of vires.
• The government was given the power to amend or suspend any enactment
of Parliament and to apply any enactment of Parliament with or without
modification.
• A defence regulation and any rule or order made thereunder was to have
effect even if
inconsistent with an enactment other than the Emergency Powers (Defence) Act
itself.
Limitations –
• It expressly withheld from the government power to impose military or
naval conscription by defence regulation, or to provide for trial by courts-
martial of persons not subject to military law.
• While the Act might, by order in council, be extended to areas under
British jurisdiction, effort was to be made to avoid conflict with Dominion
defense legislation.

• The government was specifically authorized in the Emergency Powers

(Defence) Act, 1940: to
make such Defence Regulations making provision for requiring persons to place
themselves,
their services, and their property at the disposal of His Majesty, as appear to him
to be
necessary or expedient
• for securing the public safety, • the defence of the Realm,
 105

• the maintenance of public order,

• or the efficient prosecution of any war in which His Majesty may be engaged,
• or for maintaining supplies or services essential to the life of the community.

4) There was no power to authorise the imposition of any form of compulsory

naval, military or air force service
(5) There was no power to authorise the imposition of any form of industrial
conscription.
(6) There was no power to make provisions for the trial by courts martial of
persons not subject
to military law.
(7) There was no power to transfer or suspend the jurisdiction of the civil and
criminal courts or to authorise the punishment of offences against the Defence
Regulations otherwise than in the criminal courts.

The Act of 1940 also enabled the King in Council to require persons to place
themselves and their services at the disposal of His Majesty. But
compulsory military service, subject to limitations, had already been provided
under the National Service (Armed Forces) Act, 1939, and powers of control over
labour had been taken by the Control of Employment Act, 1939. It was perhaps
more important that the power to amend legislation conferred by the Act of 1939
was extended by the Act of 1940 so as to permit the amendment of the legislation
of 1939.

EMERGENCY POWERS IN INDIA

• Emergency Provisions are contained in Part Eighteen of the Constitution

of India. The President of India has the power to impose emergency rule in
any or all the Indian states if the security of part or all of India is threatened
by "war or external aggression or armed rebellion
• The President of India has the power to declare three types of emergency.
They are National Emergency, State Emergency and Financial
Emergency. Under the Government of India Act 1935, the Governor-
General had similar powers.
 106

• The emergency powers of the President are of far-reaching significance.

It is argued by some scholars that the President can become very
powerful, even a dictator, by using these powers. Let us first analyse
these powers and then we will find out if the President is a potential
dictator.
(a) National Emergency-
Article 352 (1) says, “If the President is satisfied that a grave emergency exists
whereby the security of India or of any part of territory thereof is threatened,
whether by war or external aggression or armed rebellion he may, by
proclamation, make declaration to that effect.”

If the President believes that there is a threat to the security of India or to the
security of a part of India, he has the power to declare National Emergency.
Such threat to India’s security or to the security of any part of its territory may
be caused when another country declares war against India or attacks it. It may
also be caused by armed rebellion.

• Because of fear that the President of India may misuse this power, it has
been provided in the 44th Amendment that the President cannot declare
National Emergency without the written advice of the Union Cabinet.
• In 1975, Mrs. Indira Gandhi, the then Prime Minister, had advised the
President to declare National Emergency without consulting her cabinet.
The National Emergency of 1975 was a constitutional abuse and political
malaise. The 44th Amendment is an antidote to such danger.
• The National Emergency can be declared for the whole country or for a
part of it. A National Emergency, originally declared for the whole
country, can be later limited to a particular part of the country in which
there is serious emergency situation.
 107

• A proclamation of National Emergency has to be passed in each house of

Parliament by more than half of the total members and at least by two-
third of the members present and voting. This proclamation will be
invalid if it is not passed by both houses within one month. It has to be
passed first by the Rajya Sabha if the Lok Sabha stands dissolved at the
time of proclamation of National Emergency.
It has to be passed within one month of Lok Sabha being reconstituted;
otherwise the proclamation will be invalid. The proclamation of National
Emergency will remain in force for six months after it is duly passed by both
houses of Parliament. Each time it can be extended for six months with the
approval of the Parliament. There is no limit on such extension.

The 44th Amendment Act, 1978 empowers the Lok Sabha to revoke National
Emergency by simple majority. A special session of the Lok Sabha has to be
convened for this. The Lok Sabha can have a special session if at least one-tenth
of its members give a 14-day notice to the speaker to convene a special session
of the Lok Sabha. The President of India has also the power to revoke the
National Emergency whenever necessary. Consequences of National
Emergency

1. The Parliament gets power to make laws in relation to the State List.

2. The Union government is empowered to give directions to the state in

executive matters.

3. The right to freedom under Art. 19 are automatically suspended.

4. The right of Citizen to seek constitutional remedy under Art. 32 are abridged;
it may be suspended.
 108

5. The Union Government may suspend all other fundamental rights except Art.
20 and Art. 21.

6. The division of sources of revenue between the centre and states may be
modified. Use of Emergency Powers.

• It may be remembered that the third National Emergency was imposed by

the Indira Gandhi government after Mrs. Gandhi’s election to the Lok
Sabha was declared null and void by the Allahabad High Court, The
government declared National Emergency on the ground of ‘internal
disturbance’ on 25 June 1975 which was revoked on 21 March 1977.
• All the three National Emergencies were declared under Article 352.
While the first two emergencies were imposed on the ground of ‘external
aggression’, the third was imposed on the ground of ‘internal
disturbance’. Both the second and third National Emergencies were lifted
on 21st March 1977.
There were no complaints against the promulgation of first two National
Emergencies. But the third National Emergency was widely criticized. It was
charged that the only motive of imposing this emergency was to defend the
political interests of Mrs. Indira Gandhi.

(b) Proclamation of Failure of Constitutional Machinery in a State-

Under Article 356 the President can promulgate the failure of constitutional
machinery in a state if he is satisfied either on the basis of a report from the
Governor of that State or otherwise that the government of that state cannot be
carried on in accordance with the provisions of the constitution. He can also
issue such a proclamation if a state has failed to carry out a direction of the
Union Government given by it in exercise of its executive power to the state.
 109

It is important to note that the President can declare ‘State Emergency’ or

President’s Rule either on the basis of a report of the Governor or otherwise that
the constitutional machinery of that state has failed. Thus, at times, the
President may declare State Emergency even when he has not received a report
from the state Governor saying that the constitutional machinery of that state
has failed.

Under the 42nd Amendment of 1976, the presidential promulgation of State

Emergency became immune from judicial review. In other words, it could not
be challenged in the court of law. But this was nullified by the 44th Amendment
of 1978. According to this amendment, the legality of the proclamation of
President’s Rule can be challenged.

• The State Emergency, once proclaimed, would stay for two months.
However, if before the proclamation of emergency the Lok Sabha had
been dissolved or if it is dissolved within 2 months of the proclamation,
the State Emergency would come to an end after 30 days of the meeting
of the Lok Sabha if in the mean time the proclamation of State
Emergency had not been approved by the Parliament.
• This two-month period of State Emergency can be extended by the
resolutions passed by both Lok Sabha and Rajya Sabha for a period of six
months at a time, subject to a maximum period of three years.
• Each time it will be extended for six months. The 42nd Amendment
provided for such extension for one year, though it did not make any
change in the limit of maximum period of the State Emergency for three
years. However, the 44th Amendment Act restored the status quo. In
other words, each extension of State Emergency will be for six months
and the maximum period of its duration is three years.
Consequences of the Proclamation of State Emergency
 110

1. During state Emergency, the President of India assumes all executive power
of the state to himself. The state administration is run directly by him or through
a person designated for the purpose by him. It is the Governor of state who runs
the state administration on behalf of the President.

2. During the President’s Rule, the state assembly is either dissolved or kept
under suspended suspension. The state assembly is kept under suspended
animation if there is hope that a new council of ministers can be formed within
a short time. During this period, the MLAs do not lose their membership of the
Assembly, nor is there election held to the assembly. Therefore some scholars
have described state Emergency as ‘Half Emergency.’

3. The Parliament makes laws an all items included in the state list. It also
passes the state budget. However, if the Lok Sabha is not in session, the
President may authorize any expenditure from the consolidated fund of India.

4. During the State Emergency, the High Court of the state, as before, functions
independently without any of its powers being curtailed.

5. The president has also power to proclaim ordinances in the state.

During State Emergency the Union Government assumes absolute control over
state administration except the judiciary. As the state administration is mostly
run in the name of the President, the State Emergency is known as ‘President’s
Rule’. However, to many it appears as the ‘Governor’s Rule’, as the Governor
runs the state administration as the agent of the President.

Dr. Ambedkar, the Father of Indian Constitution, observed, Art 356 is not an
ordinary law, and this cannot be enforced arbitrarily and whimsically. This may
be used as the last weapon, he said. But this has already been used more than
100 times.
 111

Critics say that this Article has often been used in a partisan manner and that its
enforcement has been highly politicised. In several cases, the Supreme Court of
India has declared the President’s Rule illegal. The use of article 356 has
embittered relations between the centre and states, and weakened India’s
federalism.

After the Lok Sabha elections held in March 1977 which brought Janata Party
to power at the centre, the President’s Rule was imposed on 30th April 1977 in
nine states which had Congress governments. Similarly, following the Seventh
Lok Sabha election held in 1980, the President’s Rule was imposed in nine
states which had non-Congress governments.

In December 1992, the President’s Rule was imposed by the Narasimha Rao
government in four states, namely, the U.P, Madhya Pradesh, Himachal Pradesh
and Rajastan, which had BJP governments. These BJP governments were
punished after the destruction of Babri Masjid at Ayodhya on 6th December
1992. While the Madhya Pradesh High Court, in its judgement, said that the
imposition of President’s Rule in Madhya Pradesh was illegal, this judgement
was reversed by the Supreme Court in April 1994 which upheld the legality of
the President’s Rule in four Indian states in December 1992.

Many times the provision of State Emergency has been misused by the party in
power at the centre and President’s Rule is often imposed to further the interests
of the political party or parties ruling at the centre.

(c) Financial Emergency-

Under Article 360, the President of India can proclaim Financial Emergency if
he is satisfied that the financial stability or the credit of India or of any part of
its territory is threatened. The effects of financial emergency are:
 112

1. The Union Executive will have authority to give directions to any state to
observe cannons of financial propriety.

2. The President may issue directions requiring reducing the salary and
allowance of all or any class of persons serving in the Union or State
Government including the Judges of the Supreme Court and High Courts.

3. The money bills, duly passed by state legislatures, may be reserved for the
consideration of the President.

4. The allocation of revenue between the centre and the state may be altered by
the President.

The proclamation of Financial Emergency shall ordinarily remain in force for a

period of two months. However, it can continue to stay beyond two months if
before the expiry of the two-month period, the proclamation has been approved
by the both Houses of Parliament.

If, at the time of proclamation of Financial Emergency, the Lok Sabha stands
dissolved, the proclamation needs to be approved by the Lok Sabha within 30
days of its meeting after its reconstitution, provided in the meantime the Rajya
Sabha has approved it. If the Lok Sabha fails to approve it within 30 days of its
assembly following its reconstitution, the proclamation of Financial Emergency
shall cease to operate.

The National Emergency and Financial Emergency have no time limit. They
can continue to be extended without any limit. But the State Emergency has a
time-limit. It cannot go beyond three years.
 113

PIL
Principles And Basis 0f Jurisdiction
The introduction of social action litigation popularly known as Public Interest
Litigation (or) PIL supreme court shows its Judicial Activism .The court has
entertained the complaints made through letters address to it by public spirited
citizens of the violation of the rights of disadvantages, dispossessed and
deprived persons (or) group of persons who because of their future (or) socially
(or) economically disadvantaged position unable to approach the court for itself
the trade rule of locus standi has been relaxed.

Public Interest In PIL, the strict rule of locus standi approved to private
litigation is relaxed and a broad rule is evolved which gives the right of locus
standi to any member of the public acting bonfire and having sufficient interest
in instituting an action for reducing of public wrong (or) public injury Nature of
PIL Jurisdiction
The PIL jurisdiction forged by supreme court is an extension of its jurisdiction
under Article 32 of the constitution. PIL is not in the nature of adversary
litigation, but it is a challenge and an opportunity to the government and its
officers to take basic human rights meaningful to the deprived and vulnerable
sections of the community and to assure them socio and economic Justice which
is the signature tune of our constitution.

Grievance And Relief

In PIL the court has power to take affirmative action by issuing specific
directions in cases of governmental inaction (or) lethargy to perform its
functions under law further, the court has power to award cost to the petitioner
who brought an important matter before the court for compensation to persons
who have suffered on and of the violation of their constitutional (or) legal
rights.

Relaxation of Locus Standi

The important innovation in the matter of PIL is relaxation regarding locus
standi. Though no hard and fast rules have been laid down in this regard, in
S.P.Gupta and others Vs U.O.I and others, popularly known as Judges transfer
case the supreme court elaborately stated the rule in this regard.

However, the court observed that it would have to be decided from case to case
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as to whether person approaching the court for relief has sufficient interest and
has not acted with malafide (or) political motion.

Protection of Weaker Sections of Society

Public (or) social interest litigations is innovative strategy which has been
evolved by the supreme court for the purpose of providing easy access to
justification to the weaker sections of Indian humanity and it is powerful tool in
the hands of public spirited individual and social action groups for combating
exploitation and injustice and securing for the under privileged segments of
society their social and economic entitlement.

In M.C. Mehtha Vs state of Tamil Nadu, the Supreme court issued directions for
the welfare and protection of children employed in match factories. In numerous
cases, the supreme court has passed orders and issued directions for the welfare
and protection of labor.

In people’s union for Democratic Rights Vs union of India (U.O.I). The

supreme court in this case passed an order for Payment for minimum wages to
the labor.

PUBLIC INTEREST LITIGATION

• Public interest Litigation means, litigation filed in a court of law, for the
protection of Public Interest, such as pollution, Terrorism, Road safety,
constructional hazards etc.
• ie. litigation for the protection of public interest. It is litigation introduced
in a court of law, not by the aggrieved party but by the court itself or by
any other private party.
• It is not necessary, for the exercise of the court's jurisdiction, that the
person who is the victim of the violation of his or her right should
personally approach the court.
• Public Interest Litigation is the power given to the public by courts
through judicial activism.
• Such cases may occur when the victim does not have the necessary
resources to commence litigation or his freedom to move court has been
suppressed or encroached upon.
• The court can itself take cognisance of the matter and proceed Suo motu
or cases can commence on the petition of any public-spirited individual.
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Public interest litigation is not defined in any statute or in any act. It has been
interpreted by judges to consider the intent of public at large. Although, the
main and only focus of such litigation is only Public Interest there are various
areas where a Public interest litigation can be filed. For e.g.,
- Violation of basic human rights of the poor
- Content or conduct of government policy
- Compel municipal authorities to perform a public duty.
- Violation of religious rights or other basic fundamental rights
According to Black's Law Dictionary- Public Interest Litigation means a legal
action initiated in a court of law for the enforcement of public interest or general
interest in which the public or class of the community have pecuniary interest or
some interest by which their legal rights or liabilities are affected.
• Public Interest Litigation popularly known as PIL can be broadly defined
as litigation in the interest of that nebulous entity: the public in general.
• Prior to 1980s, only the aggrieved party could personally knock the doors
of justice and seek remedy for his grievance and any other person who
was not personally affected could not knock the doors of justice as a
proxy for the victim or the aggrieved party.
• In other words, only the affected parties had the locus standi (standing
required in law) to file a case and continue the litigation and the non
affected persons had no locus standi to do so.
• And as a result, there was hardly any link between the rights guaranteed
by the Constitution of Indian Union and the laws made by the legislature
on the one hand and the vast majority of illiterate citizens on the other.
• The traditional view in regard to locus standi in Writ jurisdiction has been
that only such persons who: a) Has suffered a legal injury by reason of
violation of his legal right or legally protected interest; or b) Is likely to
suffer a legal injury by reason of violation of his legal right or legally
protected interest.
• Thus before a person acquired locus standi he had to have a personal or
individual right which was violated or threatened to be violated .
• He should have been a person aggrieved in the sense that he had suffered
or was likely to suffer from prejudice, pecuniary or otherwise.
• However, all these scenario gradually changed when the post emergency
Supreme Court tackled the problem of access to justice by people through
radical changes and alterations made in the requirements of locus standi
and of party aggrieved.
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• Justice V. R. Krishna Iyer and P. N. Bhagwati recognised the possibility

of providing access to justice to the poor and the 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 shows starke difference between
the traditional justice delivery system and the modern informal justice
system where the judiciary is performing administrative judicial role. PIL
is 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,
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.
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 .S. P. Gupta v. Union of India, 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
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determinate class of persons.

The rule of locus standi have been relaxed and a person acting Bonafede and
having sufficient interest in the proceeding of Public Interest Litigation will
alone have a locus standi and can approach the court to wipe out 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.

The Supreme Court in Indian Banks' Association, Bombay and ors v. M/s
Devkala Consultancy Service and Ors, held 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.

In Guruvayur Devaswom Managing Commit. And Anr. v. C.K. Rajan and

Ors, 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.

In the case of People's Union for Democratic Rights v. Union of India , it

was held that Public Interest Litigation which is a strategic arm of the legal aid
movement and which is intended to bring justice within the reach of the poor
masses, who constitute the low visibility area of humanity, 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 parties, one making
a claim or seeing relief against the other and that other opposing such claim or
relief. Public interest litigation is brought before the court not for the purpose of
enforcing the right of one individual against another as happens in the case of
ordinary litigation, but it is intended to promote and vindicate public interest
which demands that violations of constitutional or legal rights of large numbers
of people who are poor, ignorant or in a socially or economically disadvantaged
position should not go unnoticed and un-redressed.

That would be destructive of the Rule of Law which forms one of the essential
elements of public interest in any democratic form of government. The Rule of
Law does not mean that the protection of the law must be available only to a
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fortunate few or that the law should be allowed to be prostituted by the vested
interests for protecting and upholding the status quo under the guise of
enforcement of their civil and political rights. The poor too have civil and
political rights and the Rule of Law is meant for them also, though today it
exists only on paper and not in reality.

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 by pass 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.
Writ Jurisdiction under Articles 32 and 226 of the Constitution of India,
1950
The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of the
Constitution for the violation of fundamental rights guaranteed under Part - III
of the Constitution. Any provision in any Constitution for Fundamental Rights
is meaningless unless there are adequate safeguards to ensure enforcement of
such provisions. Since the reality of such rights is tested only through the
judiciary, the safeguards assume even more importance. In addition,
enforcement also depends upon the degree of independence of the Judiciary and
the availability of relevant instruments with the executive authority.
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Indian Constitution, like most of Western Constitutions, lays down certain

provisions to ensure the enforcement of Fundamental Rights.

These are as under:

(a) The Fundamental Rights provided in the Indian Constitution are guaranteed
against any executive and legislative actions. Any executive or legislative
action, which infringes upon the Fundamental Rights of any person or any
group of persons, can be declared as void by the Courts under Article 13 of the
Constitution.

(b) In addition, the Judiciary has the power to issue the prerogative writs. These
are the extra-ordinary remedies provided to the citizens to get their rights
enforced against any authority in the State. These writs are - Habeas corpus,
Mandamus, Prohibition, Certiorari and Quo-warranto. Both, High Courts as
well as the Supreme Court may issue the writs

(c) The Fundamental Rights provided to the citizens by the Constitution cannot
be suspended by the State, except during the period of emergency, as laid down
in Article 359 of the Constitution. A Fundamental Right may also be enforced
by way of normal legal procedures including a declaratory suit or by way of
defence to legal proceedings.

However, Article 32 is referred to as the Constitutional Remedy for

enforcement of Fundamental Rights. This provision itself has been included in
the Fundamental Rights and hence it cannot be denied to any person. Dr. B.R.
Ambedkar described Article 32 as the most important one, without which the
Constitution would be reduced to nullity. It is also referred to as the heart and
soul of the Constitution. By including Article 32 in the Fundamental Rights, the
Supreme Court has been made the protector and guarantor of these Rights. An
application made under Article 32 of the Constitution before the Supreme
Court, cannot be refused on technical grounds. In addition to the prescribed five
types of writs, the Supreme Court may pass any other appropriate order.
Moreover, only the questions pertaining to the Fundamental Rights can be
determined in proceedings against Article 32. Under Article 32, the Supreme
Court may issue a Writ against any person or government within the territory of
India. Where the infringement of a Fundamental Right has been established, the
Supreme Court cannot refuse relief on the ground that the aggrieved person may
have remedy before some other court or under the ordinary law.

The relief can also not be denied on the ground that the disputed facts have to be
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investigated or some evidence has to be collected. Even if an aggrieved person

has not asked for a particular Writ, the Supreme Court, after considering the
facts and circumstances, may grant the appropriate Writ and may even modify it
to suit the exigencies of the case. Normally, only the aggrieved person is
allowed to move the Court. But it has been held by the Supreme Court that in
social or public interest matters, any one may move the Court.
A Public Interest Litigation can be filed before the Supreme Court under
Article 32 of the Constitution or before the High Court of a State under Article
226 of the Constitution under their respective Writ Jurisdictions.
There are mainly five types of Writs - (i) Writ of Habeaus Corpus, (ii) Writ of
Mandamus, (iii) Writ of Quo-Warranto, (iv) Writ of Prohibition, and (v) Writ of
Certiorari.
(I) Writ of Habeas Corpus:
It is the most valuable writ for personal liberty. Habeas Corpus means, Let us
have the body. A person, when arrested, can move the Court for the issue of
Habeas Corpus. It is an order by a Court to the detaining authority to produce
the arrested person before it so that it may examine whether the person has been
detained lawfully or otherwise. If the Court is convinced that the person is
illegally detained, it can issue orders for his release.
(II) The Writ of Mandamus:
Mandamus is a Latin word, which means We Command. Mandamus is an order
from a superior court to a lower court or tribunal or public authority to perform
an act, which falls within its duty. It is issued to secure the performance of
public duties and to enforce private rights withheld by the public authorities.
Simply, it is a writ issued to a public official to do a thing which is a part of his
official duty, but, which, he has failed to do, so far. This writ cannot be claimed
as a matter of right. It is the discretionary power of a court to issue such writs.

(III) The Writ of Quo-Warranto:

The word Quo-Warranto literally means by what warrants? It is a writ issued
with a view to restraining a person from acting in a public office to which he is
not entitled. The Writ of quo-warranto is used to prevent illegal assumption of
any public office or usurpation of any public office by anybody. For example, a
person of 62 years has been appointed to fill a public office whereas the
retirement age is 60 years. Now, the appropriate High Court has a right to issue
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a Writ of quo-warranto against the person and declare the office vacant.

(IV) The Writ of Prohibition:

Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay
Order'. This Writ is issued when a lower court or a body tries to transgress the
limits or powers vested in it. It is a Writ issued by a superior court to lower
court or a tribunal forbidding it to perform an act outside its jurisdiction. After
the issue of this Writ proceedings in the lower court etc. come to a stop. The
Writ of prohibition is issued by any High Court or the Supreme Court to any
inferior court, prohibiting the latter to continue proceedings in a particular case,
where it has no legal jurisdiction of trial. While the Writ of mandamus
commands doing of particular thing, the Writ of prohibition is essentially
addressed to a subordinate court commanding inactivity. Writ of prohibition is,
thus, not available against a public officer not vested with judicial or quasi-
judicial powers. The Supreme Court can issue this Writ only where a
fundamental right is affected.
(V) The Writ of Certiorari:
Literally, Certiorari means to be certified. The Writ of Certiorari is issued by the
Supreme Court to some inferior court or tribunal to transfer the matter to it or to
some other superior authority for proper consideration. The Writ of Certiorari
can be issued by the Supreme Court or any High Court for quashing the order
already passed by an inferior court. In other words, while the prohibition is
available at the earlier stage, Certiorari is available on similar grounds at a later
stage. It can also be said that the Writ of prohibition is available during the
tendency of proceedings before a sub-ordinate court, Certiorari can be resorted
to only after the order or decision has been announced.

There are several conditions necessary for the issue of Writ of Certiorari,
which are as under:
(a) There should be court, tribunal or an officer having legal authority to
determine the question of deciding fundamental rights with a duty to act
judicially.
(b) Such a court, tribunal or officer must have passed an order acting without
jurisdiction or in excess of the judicial authority vested by law in such court,
tribunal or law. The order could also be against the principle of natural justice
or it could contain an error of judgment in appreciating the facts of the case.
Subjects of Public Interest Litigation.
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Public Interest Litigation is meant for enforcement of fundamental and other

legal rights of the people who are poor, weak, ignorant of legal redressal system
or otherwise in a disadvantageous position, due to their social or economic
background. Such litigation can be initiated only for redressal of a public injury,
enforcement of a public duty or vindicating interest of public nature. It is
necessary that the petition is not filed for personal gain or private motive or for
other extraneous consideration and is filed bona fide in public interest.
The following are the subjects which may be litigated under the head of Public
Interest Litigation:
(I) The matters of public interest: Generally they include
(i) bonded labour matters
(ii) matters of neglected children
(iii) exploitation of casual labourers and non-payment of wages to them (except
in individual cases)
(iv) matters of harassment or torture of persons belonging to Scheduled Castes,
Scheduled Tribes and Economically Backward Classes, either by co-villagers or
by police
(v) matters relating to environmental pollution, disturbance of ecological
balance, drugs, food adulteration, maintenance of heritage and culture, antiques,
forests and wild life,
(vi) petitions from riot victims and
(vii) other matters of public importance.
(II) The matters of private nature: They include:
i) threat to or harassment of the petitioner by private persons,
ii) seeking enquiry by an agency other than local police,
iii) seeking police protection,
iv) land lord tenant dispute
v) service matters,
vi) admission to medical or engineering colleges,
vii) early hearing of matters pending in High Court and subordinate courts and
are not considered matters of public interest.

But this traditional rule was considerably relaxed by the Supreme Court in its
recent rulings:
Peoples Union for Democratic Rights v. Union of India .
The court now permits Public Interest Litigation or Social Interest Litigation at
the instance of Public spirited citizens for the enforcement of constitutional &
legal rights of any person or group of persons who because of their socially or
economically disadvantaged position are unable to approach court for relief.
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Public interest litigation is a part of the process of participate justice and

standing in civil litigation of that pattern must have liberal reception at the
judicial door steps.

In the Judges Transfer Case - Court held Public Interest Litigation can be filed
by any member of public having sufficient interest for public injury arising from
violation of legal rights so as to get judicial redress. This is absolutely necessary
for maintaining Rule of law and accelerating the balance between law and
justice.

It is a settled law that when a person approaches the court of equity in exercise
of extraordinary jurisdiction, he should approach the court not only with clean
hands but with clean mind, heart and with clean objectives.

Shiram Food & Fertilizer case through Public Interest Litigation directed the
Co. Manufacturing hazardous & lethal chemical and gases posing danger to life
and health of workmen & to take all necessary safety measures before re-
opening the plant.

In the case of M.C Mehta v/s Union of India - In a Public Interest Litigation
brought against Ganga water pollution so as to prevent any further pollution of
Ganga water. Supreme court held that petitioner although not a riparian owner
is entitled to move the court for the enforcement of statutory provisions , as he
is the person interested in protecting the lives of the people who make use of
Ganga water.

Parmanand Katara v/s Union of India - Supreme Court held in the Public
Interest Litigation filed by a human right activist fighting for general public
interest that it is a paramount obligation of every member of medical profession
to give medical aid to every injured citizen as soon as possible without waiting
for any procedural formalities.

Council For Environment Legal Action v/s Union of India -: Public Interest
Litigation filed by registered voluntary organisation regarding economic
degradation in coastal area. Supreme Court issued appropriate orders and
directions for enforcing the laws to protect ecology.

State v/s Union of India -: Public Interest Litigation is a strategic arm of the
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legal aid movement which intended to bring justice. Rule of Law does not mean
that the Protection of the law must be available only to a fortunate few or that
the law should be allowed to be abused and misused by the vested interest.

During the last few years, Judicial Activism has opened up a new dimension for
the Judicial process and has given a new hope to the millions who starve for
their livelihood. There is no reason why the Court should not adopt activist
approach similar to Court in America , so as to provide remedial amplitude to
the citizens of India.

Supreme Court has now realised its proper role in welfare state and it is using
its new strategy for the development of a whole new corpus of law for effective
and purposeful implementation of Public Interest Litigation. One can simply
approach to the Court for the enforcement of fundamental rights by writing a
letter or post card to any Judge. That particular letters based on true facts and
concept will be converted to writ petition. When Court welcome Public Interest
Litigation, its attempt is to endure observance of social and economic
programmes frame for the benefits of have-nots and the handicapped. Public
Interest Litigation has proved a boon for the common men. Public Interest
Litigation has set right a number of wrongs committed by an individual or by
society. By relaxing the scope of Public Interest Litigation, Court has brought
legal aid at the doorsteps of the teeming millions of Indians; which the
executive has not been able to do despite a lot of money is being spent on new
legal aid schemes operating at the central and state level. Supreme Court's
pivotal role in expanding the scope of Public Interest Litigation as a counter
balance to the lethargy and inefficiency of the executive is commendable.

Procedure for Filing Public Interest Litigation

(a) Filing
Public Interest Litigation petition is filed in the same manner, as a writ petition
is filed. If a PIL is filed in a High Court, then two (2) copies of the petition have
to be filed (for Supreme Court, then (4)+(1)(i.e.5) sets) Also, an advance copy
of the petition has to be served on the each respondent, i.e. opposite party, and
this proof of service has to be affixed on the petition.

(b) The Procedure

A Court fee of Rs. 50 , per respondent (i.e. for each number of party, court fees
of Rs 50) have to be affixed on the petition. Proceedings, in the PIL commence
and carry on in the same manner, as other cases. However, in between the
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proceedings if the Judge feels that he may appoint the commissioner, to inspect
allegations like pollution being caused, trees being cut, sewer problems, etc.
After filing of replies, by opposite party, or rejoinder by the petitioner, final
hearing takes place, and the judge gives his final decision.

Against whom Public Interest Litigation can be filed

A Public Interest Litigation can be filed against a State/ Central Govt.,
Municipal Authorities, and not any private party. The definition of State is the
same as given under Article 12 of the Constitution and this includes the
Governmental and Parliament of India and the Government and the Legislature
of each of the States and all local or other authorities within the territory of
India or under the control of the Government of India. According to Art.12, the
term State includes the Government and Parliament of India and the
Government and the Legislatures of each of the States and all local or other
authorities within the territory of India or under the control of the Government
of India.

Thus the authorities and instrumentalities specified under Art.12 are -

# The Government and Parliament of India
# The Government and Legislature of each of the States
# All local authorities
# Other authorities within the territory of India or under the Government of
India.

In Electricity Board, Rajasthan v/s Mohan Lal, the Supreme Court held that
other authorities would include all authorities created by the Constitution of
India or Statute on whom powers are conferred by law.

However, Private party can be included in the PIL as Respondent, after making
concerned state authority, a party. For example- if there is a Private factory in
Delhi, which is causing pollution, then people living nearly, or any other person
can file a PIL against the Government of Delhi, Pollution Control Board, and
against the private factory. However, a PIL cannot be filed against the Private
party alone.

Aspects of Public Interest Litigation

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(a) Remedial in Nature: Remedial nature of PIL departs from traditional locus
standi rules. 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 had changeth the
procedural nature of the Indian law into dynamic welfare one. Bandhu Mukti
Morcha v/s Union of India, Unnikrishnan v/s State of A.P., etc were the obvious
examples of this change in nature of judiciary.

(b) 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. PIL is a modified form of class
action.

(c) 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.

(d) Non-adversarial Litigation: In the words of Supreme Court in People's

Union for Democratic Rights v. Union of India, 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:

1. Collaborative litigation:
In collaborative litigation the effort is from all the sides. The claimant, the court
and the Government or the public official, all are in collaboration here to see
that basic human rights become meaningful for the large masses of the people.
PIL helps executive to discharge its constitutional obligations. Court assumes
three different functions other than that from traditional determination and
issuance of a decree. (i). Ombudsman- The court receives citizen complaints
and brings the most important ones to the attention of responsible government
officials. (ii) Forum - The court provides a forum or place to discuss the public
issues at length and providing emergency relief through interim orders. (iii)
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Mediator - The court comes up with possible compromises.

2. Investigative Litigation:
It is investigative litigation because it works on the reports of the Registrar,
District Magistrate, comments of experts, newspapers etc.

(e) Crucial Aspects: The flexibility introduced in the adherence to procedural

laws. In Rural Litigation and Entitlement Kendra v. State of U.P., Supreme
Court rejected the defense of Res Judicta. Court refused to withdraw the PIL
and ordered compensation too. To curtail custodial violence, Supreme Court
in Sheela Barse v. State of Maharashtra, issued certain guidelines. Supreme
Court has broadened the meaning of Right to live with human dignity available
under the Article 21 of the Constitution of India to a greatest extent possible.

(f) Relaxation of strict rule of Locus Standi: The strict rule of locus standi has
been relaxed by way of (a) Representative standing, and (b) Citizen standing.
In D.C.Wadhwa v. State of Bihar, Supreme Court held that a petitioner, a
professor of political science who had done substantial research and deeply
interested in ensuring proper implementation of the constitutional provisions,
challenged the practice followed by the state of Bihar in repromulgating a
number of ordinances without getting the approval of the legislature. The court
held that the petitioner as a member of public has 'sufficient interest' to maintain
a petition under Article 32.

The rule of locus standi have been relaxed and a person acting bonafide and
having sufficient interest in the proceeding of Public Interest Litigation will
alone have a locus standi and can approach the court to wipe out 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…court has to strike balance between two conflicting interests:
(i) nobody should be allowed to indulge in wild and reckless allegations
besmirching the character of others; and
(ii) avoidance of public mischief and to avoid mischievous petitions seeking to
assail, for oblique motives, justifiable executive and the legislature. It is
depressing to note that on account of trumpery proceedings initiated before the
courts, innumerable days are wasted, which time otherwise could have been
spent for the disposal of cases of genuine litigants. Though the Supreme Court
spares no efforts in fostering and developing the laudable concept of PIL and
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extending its ling arm of sympathy to the poor, ignorant, the oppressed and the
needy whose fundamental rights are infringed and violated and whose
grievances go unnoticed, unrepresented and unheard.

(g) Epistolary Jurisdiction: The judicial activism gets its highest bonus when its
orders wipe some tears from some eyes. This jurisdiction is somehow different
from collective action. Number of PIL cells was open all over India for
providing the footing or at least platform to the needy class of the society.
Factors that have contributed to growth of PIL
Among, the numerous factors that have contributed to the growth of PIL in this
country, the following deserve special mention:
# The character of the Indian Constitution. Unlike Britain, India has a written
constitution which through Part III (Fundamental Rights) and Part IV (Directive
Principles of State Policy) provides a framework for regulating relations
between the state and its citizens and between citizens inter-se.
# India has some of the most progressive social legislation to be found
anywhere in the world whether it be relating to bonded labor, minimum wages,
land ceiling, environmental protection, etc. This has made it easier for the courts
to haul up the executive when it is not performing its duties in ensuring the
rights of the poor as per the law of the land.
# The liberal interpretation of locus standi where any person can apply to the
court on behalf of those who are economically or physically unable to come
before it has helped. Judges themselves have in some cases initiated suo moto
action based on newspaper articles or letters received.
# Although social and economic rights given in the Indian Constitution under
Part IV are not legally enforceable, courts have creatively read these into
fundamental rights thereby making them judicially enforceable. For instance the
right to life in Article 21 has been expanded to include right to free legal aid,
right to live with dignity, right to education, right to work, freedom from
torture, bar fetters and hand cuffing in prisons, etc.
# Sensitive judges have constantly innovated on the side of the poor. for
instance, in the Bandhua Mukti Morcha case in 1983, the Supreme Court put
the burden of proof on the respondent stating it would treat every case of forced
labor as a case of bonded labor unless proven otherwise by the employer.
Similarly in the Asiad Workers judgment case, Justice P.N. Bhagwati held that
anyone getting less than the minimum wage can approach the Supreme Court
directly without going through the labor commissioner and lower courts.
# In PIL cases where the petitioner is not in a position to provide all the
necessary evidence, either because it is voluminous or because the parties are
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weak socially or economically, courts have appointed commissions to collect

information on facts and present it before the bench.

Mechanism for protection of Human Rights through PIL

Features of PIL 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 re-conceptualised rights provide legal resources to
activate the courts for their enforcement through PIL.

2) By democratization of access to 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 relief's 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
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inquire into human rights violations. This may be called investigative litigation.

Conclusion
Public Interest Litigation is working as an important instrument of social
change. It is working for the welfare of every section of society. It's the sword
of every one used only for taking the justice. 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 Bandhua Mukti Morcha v. Union of India, Supreme Court ordered for the
release of bonded labourers. In Murli S. Dogra v. Union of India, the Supreme
Court banned smoking in public places. In a landmark judgment of Delhi
Domestic Working Women's Forum v. Union of India, 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

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 developed 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
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weaker elements in the community. We may end with the hope once expressed
by Justice Krishna Iyer, The judicial activism gets its highest bonus when its
orders wipe some tears from some eyes.
UNIT 5-JUDICIARY AND JUDICIAL PROCESS
The Judiciary is the third organ of the government. It has the responsibility to
apply the laws to specific cases and settle all disputes. The real ‘meaning of
law’ is what the judges decide during the course of giving their judgements in
various cases. From the citizen’s point of view, Judiciary is the most important
organ of the government because it acts as their protector against the possible
excesses of legislative and executive organs. Role of Judiciary as the guardian-
protector of the constitution and the fundamental rights of the people makes it
more respectable than other two organs.
JUDICIAL PROCESS

The judicial process is a set of interrelated procedures and roles for deciding
disputes by an authoritative person or persons whose decisions are regularly
obeyed. The disputes are to be decided according to a previously agreed upon
set of procedures and in conformity with prescribed rules. As an incident, or
consequence, of their dispute-deciding function, those who decide make
authoritative statements of how the rules are to be applied, and these statements
have a prospective generalized impact on the behavior of many besides the
immediate parties to the dispute. Hence the judicial process is both a means of
resolving disputes between identifiable and specified persons and a process for
making public policies.

DEFINING JUDICIAL PROCESS:

Judicial Means:
Relating to administration of justice or the function of a judge.”
Process Means
Series of actions directed to some end or continuous action or series of changes
and to handle according to a routine procedure.

JUDICIAL PROCESS MEANS:

Judicial And Process read together means everything done by judge in the process
of delivery of justice. It basically confines itself to the study of “is” to “ought” of
the law.
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Judicial process is basically “whole complex phenomenon of court working”

RELEVANT PROVISIONS RELATING TO JUDICIAL PROCESS IN

CONSTITUTION OF INDIA

Article 14 casts a duty on the state which also includes judiciary to provide justice
by giving equal protection of laws to all its citizens. But it has been seen that on
many occasions’ judiciary has failed to provide the justice according to the
provisions of constitution and statutes.

In the hierarchical system of the Courts in India our Constitution specifically lays
down the proposition of judicial process in Art. 141 which says that “the law
declared by the Supreme Court shall be binding on all Courts within the territory
of India.”

Article 225 gives jurisdiction to the existing High Courts and gives the power of
administration of justice in the Court, including any power to make rules of Court
and to regulate the sitting of the Court and of members thereof sitting alone or in
Division Courts.

Article 256 gives a supervisory power to the union over state for compliance of
laws, and

Article 356 read with Article 365 is the consequential result for noncompliance
of constitutional obligations by the state.

The Supreme Court acting within the 4 walls of the constitutional provisions
sometimes acted in its anxiety to protect human rights, at times undertaken the
roles of both organs of the government, the legislature and the executive. The
Constitution does not confer such omnipotent power on the Judiciary. Judiciary
has invented novel forms of action to provide relief to the poor, underprivileged,
downtrodden sections of the society. Era of epistolary jurisdiction is emerging.
Epistolary jurisdiction allows access to justice to the poor and the weaker section
of the society. The court entertains a letter as writ petition ignoring all procedural
norms and technicalities. The epistolary jurisdiction is a new strategy adopted by
the judiciary for protection of the human rights of the vulnerable sections of the
society.
Now we move on to discuss few Judgments which set high standards of Judicial
Process in India .
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CASE LAW:

1.Maneka Gandhi’s case

AIR 1978 SC 598

Supreme Court held that any state action affecting life and liberty of a person has
to be ‘right, just, fair and reasonable and not arbitrary fanciful and oppressive’.
Thereafter, there appeared era of progressive judicial activism for
protection of human rights. In the post–Maneka period court’s activism
blossomed and flourished. A new trend was set in Maneka Gandhi’s case.
2. In Olga Tellis v. Bombay Municipal Corporation
[1985] 2 Supp SCR 51
One Journalist of Bombay claimed relief against demolition of hutments of
pavement dwellers by the Municipal Corporation of Bombay. His letter to the
Supreme Court was treated as writ petition and the court granted interim relief to
pavement dwellers.

3. Bandhua Mukti Morcha v. Union of India

A.I.R. 1984 S.C. 802.
An organization dedicated to the cause of release of bonded labours informed the
Supreme Court through a letter that there 2 were a large number labours working
in the stone-quarries situated in Faridabad District under inhuman and intolerable
conditions and many of them were bonded labours. The court treated the letter as
a writ petition. The court after inquiry ordered release and rehabilitation of
bonded labours.

4.Rudal Shah v. State of Bihar

AIR 1983 SC 1086.
An instance of breakthrough in Human Rights Jurisprudence. The Court granted
monetary compensation of Rs.35,000 against the Bihar Government for keeping
a person in illegal detention for 14 years even after his acquittal. The Court
departed from the traditional approach, ignored the technicalities while granting
compensation.
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5. M.C.Mehta v. Union of India

AIR (1987) 4 SCC 463
The Supreme Court held that the power of the Court under Article 32(1) is not
only injunctive in nature, that is, preventing the infringement of a fundamental
right, but it is also remedial in scope. The power of the Court to grant such
remedial relief may include the power to award compensation in appropriate
cases. The ‘appropriate cases’ are those cases where the infringement of
fundamental right is gross and patent. It is considered unjust to ask the victim to
go to the civil court for claiming compensation as it may take many years for the
victim to get relief in a civil court.

6. Hussainara Khatoon v. State of Bihar

A.I.R. 1979 S.C. 1377.
Reiterates the right of every accused person who is unable to engage a lawyer
due to poverty, indigence or incommunicado situation, to have free legal services
provided to him by the State for obtaining bail as well as for defence at the time
of the trial. The court added a further protection to this right by holding that if
free legal services are not provided to such an accused, the trial itself may run the
risk of being vitiated as contravening Article 21.

7. Francis Coralie Mullin v. Administrator, Union Territory of Delhi

(1981) 1 SCC 608:
The Supreme Court, while elaborating the scope of the right guaranteed under
Article 21 observed in that right to life cannot be restricted to mere animal
existence. It means something more than just physical survival. Right to life
includes the right to live with human dignity and all that goes along with it,
namely, the bare necessities of life such as adequate nutrition, clothing and shelter
and facilities for reading, writing and expressing oneself in diverse forms, freely
moving about and mixing and co-mingling with fellow human beings
8. in D.K.Basu v. State of W.B.
AIR 1997 SC 610
The Apex Cour laid down 11 requirements to be followed in all cases of arrest or
detention till legal provisions are made in that behalf. The requirements wereheld
to be flowing from Articles 21 and 22(1) of the Constitution. In its anxiety to
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protect the interests of the arrested person, the court has exhibited an instance of
judicial hyper-activism rather judicial waywardness.
9.Vishaka v. State of Rajasthan.
AIR 1997 SC 3011
In this case, the Supreme Court has virtually enacted a piece of legislation on the
ground that there is a vacuum in the legislative field of sexual harassment of
working women. There is a paragraph similar to the statement of objects and
reasons. There is a definition clause and there are 12 points similar to 12 sections.
The Supreme Court laid down some guidelines and norms which are directed to
be treated as law. It is submitted that these guidelines cannot be treated as laying
down a precedent under 6 Article 141, but this should be treated as unauthorized
ad hoc legislation by the judiciary. Interpreting certain provisions of the existing
law and laying down certain principles in the form of the precedent is what is
envisaged under Article 141 and not ad hoc legislation by the judiciary when there
is vacuum in the field. Vishaka is an example of judicial trespass in legislative
domain.
10.Additional District Magistrate of Jabalpur v. Shiv Kant Shukla
AIR 1976 SC 1207
Popularly known as the Habeas Corpus case, a bench of five senior most judges
of Supreme court ruled in favour of state's right for unrestricted powers of
detention during emergency. Justices A.N. Ray, P. N. Bhagwati, Y. V.
Chandrachud, and M.H. Beg, stated in the majority decision:
(under the declaration of emergency) no person has any locus to move any
writ petition under Art. 226 before a High Court for habeas corpus or any
other writ or order or direction to challenge the legality of an order of
detention.

Recent important cases

Among the important pronouncements of the Supreme Court post 2000 are as
follows :
1. I.R. Coelho v. State of Tamil Nadu (Judgment of 11the January, 2007).
A unanimous Bench of 9 judges reaffirmed the basic structure doctrine. An
authority on the Indian Constitution, former Attorney-General Soli Sorabjee
commented on the judgment,
"The judgment in I.R. Coelho vigorously reaffirms the doctrine of basic
structure. Indeed it has gone further and held that a constitutional
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amendment which entails violation of any fundamental rights which the

Court regards as forming part of the basic structure of the Constitution then
the same can be struck down depending upon its impact and consequences.
The judgment clearly imposes further limitations on the constituent power
of Parliament with respect to the principles underlying certain fundamental
rights. The judgment in Coelho has in effect restored the decision in Golak
Nath regarding non-amenability of the Constitution on account of
infraction of fundamental rights, contrary to the judgment in Kesavananda
Bharati’s case.

2. M. Nagaraj and others Vs. Union of India.

2006-(008)-SCC-0212-SC

“…..30. To conclude, the theory of basic structure is based on the concept

of constitutional identity. The basic structure jurisprudence is a pre-
occupation with constitutional identity. In Kesavananda Bharati
Sripadagalvaru and others v. State of Kerala and another (1973) 4 SCC
225, it has been observed that 'one cannot legally use the constitution to
destroy itself'. It is further observed 'the personality of the constitution must
remain unchanged'. Therefore, this Court in Kesavananda Bharati (1973) 4
SCC 225, while propounding the theory of basic structue, has relied upon
the doctrine of constitutional identity. The word 'amendment' postulates
that the old constitution survives without loss of its identity despite the
change and it continues even though it has been subjected to alteration.
This is the constant theme of the opinions in the majority decision in
Kesavananda Bharati (1973) 4 SCC 225. To destroy its identity is to
abrogate the basic structure of the Constitution. This is the principle of
consttutional sovereignty. Secularism in India has acted as a balance
between socio-economic reforms which limits religious options and
communal developments. The main object behind the theory of the
constitutional identity is continuity and within that continuity of identity,
changes are admissible depending upon the situation and circumstances of
the day……”

CONCLUDING REMARKS

Judiciary as a state within the meaning of Article 12 is duty bound to do

complete and Restitutive justice under Article 14 read with Article 142, but on
several occasions it has acted as dispute settlement forum. It is also duty bound
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under section 57(1) of the Indian Evidence Act 1872 to take judicial notice of all
existing laws having force , whether it is mentioned in the plaint or not but
judges deliberately fails to take notice of this section which proves their
incapacity and misconduct to deal with the cases rendering them liable for
punishment under section 166 IPC and for removal from the post by parliament ,
but still the legislature has fails to set an example of punishment by virtue of
removal of any high/supreme court judge

Under constitutional power arrangement the work of judiciary is to say

authoritatively what the law i.e. policy is controlling. Provisions of Article 142
and 226 of constitution, Section 482 CrPC and 151 of CPC though gives inherent
power to the supreme court and high court to render complete justice, it means
only to fill the gap within the parameter of the constitution and statute and it does
not mean to supersede the constitution or statute as it did in Ramjawaya kapoor
and S.C Advocates on Records case.

It can be concluded that judicial process in India has moved in the right
direction. The move is progressive in nature and has benefited the masses
immensely and all credit goes to judiciary. Whether we take the environmental
jurisprudence or developing the concept of PIL to acting on the initiative of
NGO’s or taking suo moto notice of the problems faced by citizens in day to day
life.

Functions of Judiciary and Its Importance:

1. To Give Justice to the people:
The first and foremost function of the judiciary is to give justice to the people,
whenever they may approach it. It awards punishment to those who after trial
are found guilty of violating the laws of the state or the rights of the people.
The aggrieved citizens can go to the courts for seeking redress and
compensation. They can do so either when they fear any harm to their rights or
after they have suffered any loss. The judiciary fixes the quantity and quality of
punishment to be given to the criminals. It decides all cases involving grant of
compensations to the citizens.
2. Interpretation and Application of Laws:
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One of the major functions of the judiciary is to interpret and apply laws to
specific cases. In the course of deciding the disputes that come before it, the
judges interpret and apply laws. Every law needs a proper interpretation for
getting applied to every specific case. This function is performed by the judges.
The law means what the judges interpret it to mean.
3. Role in Law-making:
The judiciary also plays a role in law-making. The decisions given by the courts
really determine the meaning, nature and scope of the laws passed by the
legislature. The interpretation of laws by the judiciary amounts to law-making
as it is these interpretations which really define the laws.
Moreover, ‘the judgements delivered by the higher courts, which are the Courts
of Records, are binding upon lower courts. The latter can decide the cases
before them on the basis of the decisions made by the higher courts. Judicial
decisions constitute a source of law.
4. Equity Legislation:
Where a law is silent or ambiguous, or appears to be inconsistent with some
other law of the land, the judges depend upon their sense of justice, fairness,
impartiality, honesty and wisdom for deciding the cases. Such decisions always
involve law-making. It is usually termed as equity legislation.
5. Protection of Rights:
The judiciary has the supreme responsibility to safeguard the rights of the
people. A citizen has the right to seek the protection of the judiciary in case his
rights are violated or threatened to be violated by the government or by private
organisations or fellow citizens. In all such cases, it becomes the responsibility
of the judiciary to protect his rights of the people.
6. Guardian of the Constitution:
The judiciary acts as the guardian of the Constitution. The Constitution is the
supreme law of the land and it is the responsibility of the judiciary to interpret
and protect it. For this purpose the judiciary can conduct judicial review over
any law for determining as to whether or not it is in accordance with the letter
and spirit of the constitution. In case any law is found ultra vires
(unconstitutional), it is rejected by the judiciary and it becomes invalid for
future. This power of the court is called the power of judicial review.
7. Power to get its Decisions and Judgements enforced:
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The judiciary has the power not only to deliver judgements and decide disputes,
but also to get these enforced. It can direct the executive to carry out its
decisions. It can summon any person and directly know the truth from him.
In case any person is held:
(i) Guilty of not following any decision of the court, or
(ii) Of acting against the direction of the court, or
(iii) Misleading the court, or
(iv) Of not appearing before the court in a case being heard by it, the Court has
the power to punish the person for the contempt of court.
8. Special Role in a Federation:
In a federal system, the judiciary has to perform an additionally important role
as the guardian of the constitution and the arbiter of disputes between the centre
and states. It acts as an independent and impartial umpire between the central
government and state governments as well as among the states. All legal centre-
state disputes are settled by the judiciary.
9. Running of the Judicial Administration:
The judiciary is not a department of the government. It is independent of both
the legislature and the executive. It is a separate and independent organ with its
own organisation and officials. It has the power to decide the nature of judicial
organisation in the state. It frames and enforces its own rules.
These govern the recruitment and working of the magistrates and other persons
working in the courts. It makes and enforces rules for the orderly and efficient
conduct of judicial administration.
10. Advisory Functions:
Very often the courts are given the responsibility to give advisory opinions to
the rulers on any legal matter. For example, the President of India the power to
refer to the Supreme Court any question of law or fact which is of public
importance.
11. To Conduct Judicial Inquiries:
Judges are very often called upon to head Enquiry Commissions constituted to
enquire into some serious incidents resulting from the alleged errors or
omissions on the part of government or some public servants. Commissions of
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enquiry headed by a single judge are also sometimes constituted for

investigating important and complicated issues and problems.
12. Miscellaneous Functions:
Besides the above major functions, the judiciary also performs several other
functions. Some such functions are the appointment of certain local officials of
the court, choosing of clerical and other employees. Cases relating to grant of
licenses, patents, and copy rights, the appointment of guardians and trustees, the
admission of wills, to appoint trustees to look after the property of the minors,
to settle the issues of successions of property and rights, issue of administrating
the estates of deceased persons, the appointment of receivers, naturalization of
aliens, marriage and divorce cases, election petitions and the like.
Through all these functions, the Judiciary plays an important role in each state.
It also plays a role in the evolution of Constitution through the exercise of its
right to interpret and safeguard it against all legislative and executive excesses.
Importance of Independent Judiciary:
In the life of the citizens of a state, Judiciary is a source of confidence and
fearlessness. The common man depends upon judiciary for getting justice.
Without a security of rights and freedom guaranteed by the judiciary, they
cannot really hope to carry out their jobs and enjoy their living. They are more
dependent upon judiciary than the legislature and the executive. Without
judicial protection, their lives can become miserable. From citizens point of
view Judiciary is the most important organ of the government.
Garner highlights this view when he observes, “A society without legislature is
conceivable, and indeed, legislative organs did not make their appearance in the
state until modern times, but a civilised state without a judicial organ and
machinery is hardly conceivable.”
Judiciary enjoys a big importance in the eyes of the people because it acts
as:
(1) The dispenser of Justice.
(2) Protector of the rights of the people.
(3) Guardian protector of the Constitution of the State.
(4) Arbiter of center-state disputes.
(5) Safeguard against Legislative and executive excesses.
(6) Check against arbitrary exercise of powers by the power-holders.
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(7) Guardian of Rule of Law and Justice.

An independent judiciary is always considered to be the most essential part of
every democratic government worth its name. A government without judiciary
is almost inconceivable. A government without independent judiciary is always
held to be an authoritarian government.
Independence of Judiciary: An Essential Quality:
The chief quality which helps the judiciary to faithfully administer justice and to
perform its functions efficiently is judicial independence. It is only when the
judiciary works independently without any interference of the other two organs
of the government that it can carry out its high responsibilities.
“The independence of judiciary,” writes Dr. P. Sharan, “is a corner stone of
every democratic government and upon it is built the structure of civil liberty.”
Judiciary can perform its functions only when it is free to administer justice
according to law. Without being well-organised and independent it can never
serve its purpose. Therefore, Judiciary must be organised in such a way as can
enable the judges to give their judgements without any fear or favour.
Organisation of Judiciary must be based on the following features:
(1) Appointment of only highly qualified and experienced judges.
(2) The Judiciary must have prevented the executive and legislature from
committing excesses.
(3) The ability of the judiciary to maintain and independently run the judicial
administration.
(4) The Judiciary must be made the guardian protector of the Constitution,
(5) The Judiciary must ensure full, fair and less- expensive opportunities to the
people for defending their rights and getting justice.
(6) The method of appointment of judges must be fair, systematic, effective and
transparent.
(7) Method of removal of judges should be difficult and no single should have
the power to remove the judges.
(8) Judges must be paid high salaries, necessary allowances, good service
conditions, and appropriate retirement benefits.
By incorporating all these features in the judicial system, a well organised and
independent judiciary can be secured.
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Evolution Of Tribunal System In India

In India, managerial settling grows after freedom and different government
assistance laws was proclaimed, which vested the government of choosing
detached issues on the hands of the organization. The propelled Indian Republic
brought into the world with a government assistance state. Hence, the
administration weight to give a large group of government assistance
administration to the individuals was massive.

These quasi-judicial powers acquired by the government body led to various

enormous cases concerning their department. The court held that these bodies
should maintain procedure as prescribed by the law while arriving at their
decisions, and these bodies must stick to the principle of natural justice which
was justified the 14th law commission report. Some tribunals have been made
by the legislature to provide a speedy, modest and decentralised determination
of disputes coming out of different welfare legislature.

Soon after the independence, these tribunals were set up in India. The main
advantage of adjudicatory function is to carry out by the statutory tribunals
created by the governing body to decide upon the certain disputes arising from
admin decisions or to decide issues judicially.

• The period of emergency plays a vital role in the advancement of

tribunals in India. At that time, it was clear that the executive did not
want the legal executive to interfere with their formative plans and other
decisions. Such as removing of disputes related to the election from the
President office, Prime Minister and Lok Sabha Speaker beyond judicial
scrutiny.
• This issue was later on discussed in the year 1976 at the Chief Secretaries
Conference and from all these discussions and reports of the different
bodies stated above, the Parliament enacted the 42nd Constitution
Amendment Act 1976.
• The Parliament inserted Article 323A and 323B in the Constitution under
which various tribunals were formed, and they were given the power to
deal with the matters. Article 323A allows the Parliament allows the
administrative tribunals to decide the issues whereas Article 323B allow
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the appropriate legislature to create law for these tribunals to determine

the matter.

judicial Analysis of the Powers and Functions of the Administrative

Tribunals
The Administrative Tribunal Act 1985 allows a special leave to the Supreme
Court as per Article 136 of the Constitution. It is a special provision and
protects all the cases that do not fall under Article 132-134. The provision to
grant leave under Article 136 is on the discretion of the Supreme Court to allow
appeal before itself, from any judgment, determination, an order made by any
Tribunal or any court in any case or matter.

Therefore, as per Article 136, the laws of the courts and Tribunal can be
appealed before the Supreme Court. However, what is a tribunal is a matter of
Tribunal, and the Supreme Court of India interpreted this in its various
Judgements as in the case of Bharat Bank v. Employees of Bharat
Bank question was whether the Supreme Court can entertain the appeal filed
under Article 136 against an order of the Industrial Tribunal or not. Justice
Mukherjee believed that the Supreme Court could not grant the special leave as
the Tribunal functions were more similar to the administrative functions rather
than judicial function.

Therefore award by the Industrial Tribunal cannot be challenged before the

Supreme court, but this statement was contradicted by the majority of the judges
in this case. They believed that the Industrial Tribunal has all the necessary
functions similar to the other courts. They discharge no other duty other than
deciding the disputes and such Tribunals can be characterised as the quasi-
judicial body as it is outside the scope of the regular judicial hierarchy as the
functions of these Tribunals are judicial.

The same related question was arise in the case of J&K Iron and Steel Co.
Ltd. v. Iron and Steel Mazdoor Union, Kanpur that the jurisdiction and
authority of Industrial Tribunal are same as to the capability of the civil court.
The court said these tribunals are not similar to the courts as they perform quasi-
judicial functions and the Supreme court can over-ride the jurisdiction as per the
Article 136 of the Constitution.
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As per the Constitution of India, A hierarchy system is set under which higher
Courts have a definitive position, and every other court goes under it to control
all activity of subjective just as supreme forces. As for another case
of Harinagar Sugar Mills v. Shyam Sunder, the court held that the Tribunals
are the part of a court which was set up by a State according to the Constitution
to practice legal capacities. It must exercise the ability to pick due to the
endorsement of the law, not by voluntary submissions of the parties to its
jurisdiction like a court, must decide the case equitably and reasonably. The
ambit of the word 'court' is broader than council.

All the courts are Tribunal, yet all tribunals are not courts. The articulation
tribunal implies the seat of an appointed judge or an official courtroom of
justice. Therefore, it was finally concluded by the court that the word 'tribunal'
in Article 136, the expectation was to give comparative importance as 'court' as
in the case of Bharat Bank v. Representatives of Bharat Bank.

The court held in case of L. Chandra Kumar v union of India that according
to Article 226 high court has judicial power given to the court to review over
legislative activity and a similar power is given to the Supreme court according
to Article 32 of the Constitution. Further, it opined that the tribunals are capable
of hearing the issues where the vires of lawfully questioned.
Conclusion
The main reason behind the foundation of the administrative Tribunal is to
provide justice to the civil servants, which is somehow missing in the traditional
system. These Tribunals are much useful as it gives the decision faster than the
court and is more cost-effective for the parties.

The Supreme court has said that before taking up the appellant powers as per
Article 136, the individual must uphill the statutory remedies given to him.
Indeed, this is the self-imposed rule of the court to check the range of
proceeding before the court. The Supreme Court said this in the case of Chandi
Prasad Chokhani v. the State of Bihar. It would thus be able to see that the
Supreme Court cannot just be engaged in the cases from the regular court.
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Administrative tribunals have been established by statute, to resolve:

* disputes between a private citizen and a central government department,
such as claims to social security benefits;
* disputes which require the application of specialised knowledge or
expertise, such as the assessment of compensation following the compulsory
purchase of land; and
* other disputes which by their nature or quantity are considered unsuitable
for the ordinary courts, such as fixing a fair rent for premises or immigration
appeals.
The main reasons for the creation of administrative tribunals may be
identified as:
* the relief of congestion in the ordinary courts of law (the courts could
not cope with the case-load that is now borne by social security tribunals,
employment tribunals and the like);
* the provision of a speedier and cheaper procedure than that afforded by
the ordinary courts (tribunals avoid the formality of the ordinary courts); and
* the desire to have specific issues dealt with by persons with an intimate
knowledge and experience of the problems involved (which a court with a wide
general jurisdiction might not acquire).
Growth of Administrative Tribunals
The 42nd Amendment to the Constitution introduced Part XIV-A which
included Article 323A and 323B providing for constitution of tribunals dealing
with administrative matters and other issues. According to these provisions of
the Constitution, tribunals are to be organized and established in such a manner
that they do not violate the integrity of the judicial system given in the
Constitution which forms the basic structure of the Constitution.
The introduction of Article 323A and 323B was done with the primary objective
of excluding the jurisdiction of the High Courts under Article 226 and 227,
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except the jurisdiction of the Supreme Court under Article 136 and for
originating an efficacious alternative institutional mechanism or authority for
specific judicial cases.
The purpose of establishing tribunals to the exclusion of the jurisdiction of the
High Courts was done to reduce the pendency and lower the burden of cases.
Therefore, tribunals are organised as a part of civil and criminal court system
under the supremacy of the Supreme Court of India.
From a functional point of view, an administrative tribunal is neither an
exclusively judicial body nor an absolute administrative body but is somewhere
between the two. That is why an administrative tribunal is also called ‘quasi-
judicial’ body.
Characteristics of Administrative Tribunals
The following are the few attributes of the administrative tribunals which make
them quite disparate from the ordinary courts
• Administrative tribunals must have statutory origin i.e. they must be
created by any statute.
• They must have some features of the ordinary courts but not all.
• An administrative tribunal performs the quasi-judicial and judicial
functions and is bound to act judicially in every circumstance.
• They are not adhered by strict rules of evidence and procedure.
• Administrative tribunals are independent and not subject to any
administrative interference in the discharge of judicial or quasi-judicial
functions.
• In the procedural matters, an administrative tribunal possesses the powers
of a court to summon witnesses, to administer oaths and to compel the
production of documents, etc.
• These tribunals are bound to abide by the principle of natural justice.
• A fair, open and impartial act is the indispensable requisite of the
administrative tribunals.
• The prerogative writs of certiorari and prohibition are available against
the decisions of administrative tribunals.
Categories of Administrative Tribunals
Administrative Tribunals for service matter [Article 323A]
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Article 323A provides the establishment of administrative tribunals by law

made by Parliament for the adjudication of disputes and complaints related to
the recruitment and conditions of service of Government servants under the
Central Government and the State Government. It includes the employees of
any local or other authority within the territory of India or under the control of
the Government of India or of a corporation owned or controlled by the
Government.
The establishment of such tribunals must be at the centre and state level
separately for each state or for two or more states. The law must incorporate the
provisions for the jurisdiction, power and authority to be exercised by tribunals;
the procedure to be followed by tribunals; the exclusion of the jurisdiction of all
other courts except the Supreme Court of India.
Tribunals for other matters [Article 323B]
Article 323B empowers the Parliament and the State Legislature to establish
tribunals for the adjudication of any dispute or complaint with respect to the
matters specified under clause (2) of Article 323B. Some of the matters given
under clause (2) are a levy, assessment, collection and enforcement of any tax;
foreign exchange and export; industrial and labour disputes; production,
procurement, supply and distribution of foodstuffs; rent and it’s regulation and
control and tenancy issues etc. Such a law must define the jurisdiction, powers
of such tribunals and lays down the procedure to be followed.
Advantages of Administrative Tribunals
The concept of administrative tribunals was introduced because it has certain
advantages over ordinary courts. Few of them are mentioned below-
• Flexibility: The introduction of administrative tribunals engendered
flexibility and versatility in the judicial system of India. Unlike the
procedures of the ordinary court which are stringent and inflexible, the
administrative tribunals have a quite informal and easy-going procedure.
• Speedy Justice: The core objective of the administrative tribunal is to
deliver quick and quality justice. Since the procedure here is not so
complex, so, it is easy to decide the matters quickly and efficiently.
• Less Expensive: The Administrative Tribunals take less time to solve the
cases as compared to the ordinary courts. As a result, the expenses are
reduced. On the other hand, the ordinary courts have cumbrous and slow-
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going, thus, making the litigation costly. Therefore, the administrative

tribunals are cheaper than ordinary courts.
• Quality Justice: If we consider the present scenario, the administrative
tribunals are the best and the most effective method of providing
adequate and quality justice in less time.
• Relief to Courts: The system of administrative adjudication has lowered
down the burden of the cases on the ordinary courts.
Drawbacks of Administrative Tribunals
Although, administrative tribunals play a very crucial role in the welfare of
modern society, yet it has some defects in it. Some of the criticisms of the
administrative tribunal are discussed below-
• Against the Rule of Law: It can be observed that the establishment of the
administrative tribunals has repudiated the concept of rule of law. Rule of
law was propounded to promote equality before the law and supremacy
of ordinary law over the arbitrary functioning of the government. The
administrative tribunals somewhere restrict the ambit of the rule of law
by providing separate laws and procedures for certain matters.
• Lack of specified procedure: The administrative adjudicatory bodies do
not have any rigid set of rules and procedures. Thus, there is a chance of
violation of the principle of natural justice.
• No prediction of future decisions: Since the administrative tribunals do
not follow precedents, it is not possible to predict future decisions.
• Scope of Arbitrariness: The civil and criminal courts work on a uniform
code of procedure as prescribed under C.P.C and Cr.P.C respectively. But
the administrative tribunals have no such stringent procedure. They are
allowed to make their own procedure which may lead to arbitrariness in
the functioning of these tribunals.
• Absence of legal expertise: It is not necessary that the members of the
administrative tribunals must belong to a legal background. They may be
the experts of different fields but not essentially trained in judicial work.
Therefore, they may lack the required legal expertise which is an
indispensable part of resolving disputes.
JUDICIARY FEATURES IN FRANCE
Main Features
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The French legal and judicial system bears the imprint of Roman law and is
very much different from the British and American systems The main features
of the judicial system in France:

(1) Codified Law

The French codes are well balanced pieces of jurisprudential art, absolutely
systematic and easily accessible The first Penal Code and Criminal Procedure
Code were prepared before the eighteenth century ended whereas the Civil
Code and Civil Procedure Code were formulated during the reign of Napoleon
in the early nineteenth century Both kinds of Codes and Procedures are
reasonably complete and clear. A judge need not seek help from precedents He
free to give his judgement Precedent plays an insignificant part in the French
judicial system whereas it has great importance in England and USA. The three
important features of Roman judicial system -symmetry, unity and authority are
found in the whole edifice of French law and justice

(2) No elected judges

The judges in France are not popularly elected as they are in so many courts in
USA.

(3) Dual Hierarchy

Unlike England, there are two separate sets of courts in France There are
ordinary courts dealing with common law for the trial of civil and criminal
offences At the top of ordinary courts is the Court of Cassation But unlike the
Supreme Court of India or United States, it does not pronounce guilt or
innocence A reversal of a lower court decision, ie a successful appeal merely
means that the case is sent back for retral by another court of similar jurisdiction
Besides the ordinary courts there are administrative courts which are concerned
with the acts of the administrative authorities and the grievances that the
citizens may have aga these authorities. At the top of administrative con is the
Conseil d' Etat (the Council of State), which hears appeals from the regional
administrate tribunals.

4)Court of Conflict
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with two sets of courts, ordinary and administrative, becomes necessary to have
some agency for settling disputes arising out of the final jurisdiction of the
Court of Cassation and the Council of State For this purpose, a Court of
Conflicts was set up e 1872 This court is composed of the Minister of Justice as
ex-officio President, three judges of the Court of Cassation, three members of
the Council of State, and two other persons, selected by the foregoing seven
judicial luminaries. This institution, remarked, is unique to France only

(5) Absence of Judicial Review

Courts in France have no power to declare laws passed by the Parliament as

unconstitutional In France, courts derive their powers from the Parliament
whereas in USA they derive their powers from the Constitution itself The
French citizen has no rights to approach a court to declare a law as
unconstitutional However, the constitutionality of a law can be got determined,
before its promulgation, from the Constitutional Council by the President of the
Republic, the Prime Minister or the President of either Chamber of the
Parliament.

6)The Institution of Parquet

This on known by the name of Parquet is a unique feature of the French judicial
system Teach court there is attached a Parquet headed procureur or State
attorney and a number of to help him The Parquet does the same is done by
public prosecutors in India. It acts prosecutions According to Herman Embodies
the dual interest of securing a ction yet also ensuring justice or fair plan for h
criminal The members of the Parquet are all irremovable and they move
upwards in their cadre

Though their main function is on the criminal side. yet they also act in civil
cases which are of interest to the State, by submitting the point of view of the
State on the law, and of the public authorities and of people who are not capable
of prosecuting their own case. They also see that the judgments and decrees of
the courts are fully executed
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(7) Independence of Judiciary

The independence of judiciary is well recognised in France. The President has

been made the guarantor of the independence of judiciary. Judges may not be
removed from office The judges of the superior courts, te Court of Cassation
and the Courts of Appeals are appointed on the proposals made by the High
Council of Judges which consists of the President of the Republic, the Minister
of Justice and nine other members Thus, the appointment of the superior judges
is outside the purview of the executive. The judges at the lower level are
appointed through competitive examination These fresh appointees spend four
years in the National Centre of Judicial Studies to get further training in the
legal and judicial system, thereby ensuring a judiciary of competence and high
calibre. In France, the Bench is a career. The judges are free to deliver their
judgements uninfluenced by any kind of pressure. Though they are paid about
one-third as much as English judges, yet they are free from corruption Justice is
cheap in France

(8) Habeas Corpus

Under the Fourth Republic arbitrary arrest was possible in France. Warrants of
arrest could be issued by judges d'instruction and these warrants were
sometimes very vague. The judges could keep the person in preventive
detention until he had finished his interrogation and collected the evidence
There was no way to get the personer freed from the prison. Then many
officials including the mayors and prefects had the authority to affect arrests.
Under the Fifth Republic the Constitution declares that no one may be
arbitrarily arrested and that the judiciary acting as guardian of individual liberty
shall ensure that the individual's freedom is protected in accordance with law
This provision(Article 66) has been made for the first time and marks a unique
and important departure from the earlier Constitutions.

(9) Subservience of Judiciary

The French do not believe in theory of separation of powers. Under the

Constitution of the Fifth Republic Judiciary has been relegated to a subsidiary
position. The judges in the France work under the Minister of the Judicial
Department. The emergence of the Higher Council of Magistracy and a special
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law for the composition of judicial bodies has added to the strength and
independence of judiciary to some extent

(10) Adoption of Principle of collegiality

In every court several judges collectively hear the case and give judgement.
This is the principle of collegiality. The French feel that it checks the
corruptibility of the judges,

(11) No Separate Courts for Civil and Criminal cases

Unlike that of UK and India, in France any court can hear Civil or Criminal
case. Only the Cessation Court is an exception.

(12) Provision of Special Courts

There is a provision of Special Courts to resolve specific disputes through

compromises and agreements. Some of these Special Courts are Courts of
Justices of Peace, Industrial Disputes Tribunals, and Commercial Tribunals.
These Courts may be considered analogous to Arbitration Courts operating in
other democracies.

JUDICIAL PROCESS IN FRANCE

The courts in France are also divided into two parts - the judicial courts (those
dealing with criminal and civil laws), and the administrative courts. Public law
is applied in the administrative courts (tribunaux administratifs). The highest of
the judiciary courts is the Supreme Court of Appeals (Cour de cassation). There
are 36 courts of appeals, 161 tribunaux de grande instance , and 307tribunaux
d'instance (the lowest level). At the top of the administrative courts rests the
Council of State (Conseil d'Etat), with 8 courts of appeal (cours administratives
d'appel) and tribunaux administratifs.
There is a third unique aspect of the judiciary in France - the Constitutional
Council (Conseil constitutionnel). This branch oversees review of statutes
before they are enacted as well as overseeing national elections and answering
questions from citizens regarding the constitutionality of laws. The Conseil
constitutionnel is made up of nine members. Three are appointed by the
 153

president, three by the head of the National Assembly, and three by the head of
the Senate.
In France, the structure of the judiciary system is divided into ordinary courts for
handling civil and criminal litigation on the one hand, and administrative courts
on the other hand. Each Court has its own special provisions for competence, how
to file a lawsuit and representation by an attorney.

The administrative courts in France

The administrative courts handle lawsuits involving the French State, local
authorities or other public authorities ruled by public law. Administrative courts
handle, for example, litigation with a mayor’s office on the grant of a building
license. Unlike Germany, France does not have a specific court for tax matters.

The administrative courts are divided into three tiers:

• First instance courts – administrative courts (Tribunal administratif)

• Intermediate appellate courts – administrative courts of appeal (Cour
administrative d’appel)
• Courts of last resort – the Council of State (Conseil d’Etat)

In France there are two types of jurisdictions: the judiciary that judges trials
between private persons and punishes infringements of the penal law and an
administrative judicial system that is responsible for settling lawsuits between
public bodies, such as the state, local bodies, and public establishments, as well
as private individuals.

The judiciary

• For civil cases the judiciary consists of higher courts (grande instance)
and lower courts (tribunaux d’instance), which replaced justices of the
peace in 1958. For criminal cases there are tribunaux
correctionnels (“courts of correction”) and tribunaux de police, or “police
courts,” which try minor offenses.
• The decisions of these courts can be referred to one of the 35 courts of
appeal. Felonies are brought before the assize courts established in
each département, consisting of three judges and nine jurors.
 154

• All these courts are subject to the control of the Court of Cassation, as are
the specialized professional courts, such as courts for industrial
conciliation, courts-martial, and, from 1963 to 1981, the Court of State
Security, which tried felonies and misdemeanours against national
security.
• Very exceptionally, in cases of high treason, a High Court of
Justice (Cour de Justice de la République), composed of members of
the National Assembly and of senators, is empowered to try the president
of the republic and the ministers. They can also be tried by this court if
they have committed felonies or misdemeanours during their term of
office. These are the only situations in which the Court of Cassation is not
competent to review the case. Otherwise, the court examines judgments
in order to assess whether the law has been correctly interpreted; if it
finds that this is not the case, it refers the case back to a lower court.

• The High Council of the Judiciary is made up of 20 members originally

appointed by the head of state from among the judiciary. Since 1993,
however, its members have been elected, following reforms designed to
free the judiciary from political control.

• The Council makes proposals and gives its opinion on the nomination of
the magistrats du siège. It also acts as a disciplinary council. Public
prosecutors act on behalf of the state. They are hierarchically subject to
the authority of the minister of justice. Judges can serve successively as
members of the bench (siège) and the public prosecutor’s department.
They act in collaboration with, but are hierarchically independent of, the
police.
Administrative courts

One of the special characteristics of the French judicial system is the existence
of a hierarchy of administrative courts whose origins date to Napoleon. The
duality of the judicial system has been sometimes regarded unfavourably, but
the system has come to be gradually admired and indeed widely adopted in
continental European countries and in the former French colonies. The
administrative courts are under the control of the Council of State, which
examines cases on appeal. The Council of State thus plays a crucial part in
exercising control over the government and the administration from a
 155

jurisdictional point of view and ensures that they conform with the law. It is,
moreover, empowered by the constitution to give its opinion on proposed bills
and on certain decrees.

Political process

• Universal suffrage at the age of 21 has existed in France since 1848 for
men and since 1944 for women; the age of eligibility was lowered to 18
in 1974. Legislation enacted in the late 1990s penalizes political parties
for failing to maintain sufficient parity between male and female
candidates.
• Candidates for the National Assembly must receive a majority, not a
plurality, of votes, and, if no candidate receives an absolute majority, then
a second ballot is held the following week and the post is awarded to the
plurality winner. Elections follow the model of single-member districts
rather than proportional representation within a district.
• Two-phase voting is also used for the presidency, with the exception that,
if an absolute majority is not reached after the first ballot, then only the
two highest vote getters are considered for the second ballot, which is
contested two weeks later.
• Historically, French political parties have been both numerous and weak,
which is generally accepted as the reason governments fell frequently
before the advent of the Fifth Republic in 1958.
• The French party system has continued to display volatility, though less
so than in the past. Because the dominance of the Gaullist party was
relatively short-lived, with other groups from the centre eroding its
strength, the parliamentary base of the governments of the centre-right
shrank; this was especially so since the centrists remained a loose
confederation of several groupings, each of which tended to adopt
different tactics. The precarious nature of political balance was
underscored by recent periods of cohabitation between presidents and
prime ministers of opposing parties.
Present Judicial System in India

• Unlike United Kingdom and United States India has a single court system
The highest court of nation is the Supreme Court of India. Next below is
the High Court Each State has a High Court. States of Punjab and
 156

Haryana have a common High Court Below the High Court there are
District and Sessions courts which will be preceded by a District Judges.
Below the District Judges there are Subordinate Judges and Chief Judicial
Magistrates. In some states. Additional District Judges act as Chief
Judicial Magistrates But, in many states, the Sub Judges and Chief
Judicial Magistrates are of similar designation. They are mamy known as
Senior Civil Judges Below the Sub Judges Senior Civil Judges are the
Munsiffs Junior Civil Judges and Magistrates In civil matters, the Senior
Civil Judges have appellate jurisdiction over Junior Civil Judges in
certain matters. The appellate jurisdiction over the Magistrates is with the
District and Sessions Judges High Courts and Supreme Court areeffectfor
f record Unlike the United States and United Kingdom, the Supreme
Court of India has jurisdiction over all the courts in India

Investigation Process in India

• Investigation is the most important part of criminal justice system. It is

during investigation that the basic facts relating to crime committed are
enquired into Unless there is an efficient, prompt, fair and impartial
investigation, justice in criminal cases cannot be ensured. With the
evolution of modern states, sophisticated legal mechanism of
investigation, inquiry, trial and justice delivery system also took their
respective positions.
• Investigation and prosecution in India are two separate aspects of
criminal justice administration Formation of opinion as to whether a case
is to be sent to the court for trial is the exclusive function of the police.
The role of the prosecutor commences only after the investigating agency
files the report before the court
• The police may seek legal opinion of the prosecutor, but it is not
obligatory. The separation of the prosecution agency from the police after
the Code of Criminal Procedure, 1973 was to ensure that the police have
no control over the prosecutors.
• During the investigation the police officer can examine witnesses under
sec161 CPC After the completion of the investigation he shall file a
report under sec 173 CrPC
 157

• Even though the separation of the prosecution agency from the police as
envisaged by the Code of Criminal Procedure. 1973 is for removing
police control over prosecution, the exclusive authority given to the
police in the field of investigation resulted in malpractices such as
distortion of cases, filing false reports, labelling genuine cases as false
and also cooking up false cases Rights of in accused are often violated by
police or other investigating agencies.

• The essential preconditions for a successful prosecution are an impartial

and independent investigation into the crime and an equally independent
prosecuting agency These are the sine qua non for the proper functioning
of the criminal justice system Increasing violence and torture custody and
protest against it by the society led the Supreme Court of India, in D.K
Basu V State to lay down specific requirements to be followed by the
police for arrest detention and interrogation of a person.

• In India, the police force works under the control of the government.
Even as regards the Central Bureau of Investigation, it is under the
control of Prime Minister of India.

• In the adversarial system of criminal proceeding unless and until the

investigating agency is independent, the crippled authority of the police
may not further a true and proper investigation. Recently the Supreme
Court of India has asked the Government of India to come out with a law
to insulate the Central Bureau of Investigation from external influence
and intrusion while observing that the agency was a ‘caged parrot
speaking in masters voice ‘and the situation was far worse now, 15 years
alter the Supreme Court's judgment in the Vineet Narain's case" which for
aimed for CBIS autonomy

Indian Trial

• The process of trial in India is regulated by the Code of Criminal

Procedure, 1973 Before the enactment of 1973 Code. the system of jury
trial was in existence in India. It was terminated by the enactment of the
1971. Code The court of the lowest jurisdiction on the criminal side is the
Judicial First-Class Magistrate, higher to which there are Assistant
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Sessions Courts. Sessions Courts High Courts and the Supreme Court
Except regarding matters for which original jurisdiction was given to the
sessions court in very rare matters all the proceedings begin before
Magistrate Courts Proceedings before Magistrate's Courts are mainly of
three types namely summons case, warrant case and committal
proceedings These proceedings can either be on the basis of police report
or otherwise than on police report for example, by filing a private
complaint. The proceedings before the Magistrate commences by uking
cognizance of an offence Thereafter if the Magistrate is satisfied that
there is sufficient ground for proceeding, he will issue process to the
accused

• In summons case, whether it is on the basis of a police report or private

complaint, when the accused appears before the Magistrate's court, the
particulars of the offence shall be read over to him and he shall be asked
as to whether he pleads guilty or not. If he pleads guilty, the Magistrate
after satisfying that the plea was voluntary and that the accused is guilty
of the offence and after deciding the question of probation, impose
sentence on him If the accused pleads not guilty, the Magistrate will
proceed to record the evidence of the prosecution After the evidence of
the prosecution was closed, the accused will be examined under Sec 313
Cr P.C. This is for giving opportunity to explain the incriminating
circumstance appearing in the evidence against time Thereafter, defence
evidence, if any, will be recorded and after hearing both sides the
Magistrate may either convict or acquit the accused In case of conviction
after deciding the question of probation he may impose sentence on the
accused

• Regarding a warrant case on police report, after appearance of the

accused, the Magistrate will hear both sides and will either discharge the
accused or frame a charge against him Thereafter. he will follow the
procedure mentioned above and will either convict or acquit the accused.
In case of conviction, he will hear the accused on the question of sentence
and after deciding the question of probation he may impose sentence on
the accused
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• In case of warrant trial otherwise than on police report, after appearance

of the accused, the Magistrate will proceed to record the evidence of the
complainant and after hearing both sides, he may discharge the accused
or frame charge against him.

• Committal proceedings are in respect of offences exclusively trial by the

Sessions Court In such case when the accused appears before the
Magistrate's court, if it is satisfied that the offence alleged is exclusively
trial by the Court of Session, it will commit the case for trial to the
Sessions Court

• As regards the Sessions Court, the accused appears before the court after
committal The court after hearing both sides, will either discharge the
accused or frame a charge against him. When charge is framed the court
will record the evidence of the prosecution and will examine the accused
us 313 CPC Thereafter, the court will hear the prosecution and the
defence and if it considers that there is no evidence that the accused
committed the offence, the court will acquit him us 232 CPC

Plea bargaining in India

• By the amending Act of 2005. CRC was amended by incorporating

provisions of plea bargaining in certain limited category of cases. Plea
Bargaining is applicable only in respect of those offences for which
punishment of imprisonment is upto a period of 7 years. It does not apply
where such offence affects the Socio-economic condition of the country
of has been committed against women or a child below the age of 14
years. The plea bargaining in India is not as similar to that of the United
States Anyhow is a deviation from the conventional procedure of the trial
of criminal case existed in India.

Judicial system in United States

The court system in the United States is divided into two separate systems
namely federal and the state each of which is independent. This is because the
United States Constitution creates a governmental structure for the United
States which is known as Federalism: Federalism deals with sharing of powers
 160

between national government and state governments. The constitution gives

exclusive powers to federal governments in some matters and exclusive power
to state governments in certain matters. The state governments and federal
government are supreme in these matters. This is known as separate
sovereignty. So, both federal and state government need their own court system
to apply and interpret their laws Regarding the matters falling within federal
government, state court will have no jurisdiction. Likewise with regard to
matters within the powers of state government a federal court has no jurisdiction
This is why two court systems are required

Federal Court System

• As per Article of the United States Constitution, the judicial power of the
United States shall be vested with one Supreme Court and in such inferior
courts the congress may from time-to-time order and establish The
federal jurisdiction is divided into three main levels. At the bottom, there
are the federal district courts which have original jurisdiction in most of
the federal law.
• There are more than 1 to 20 judges in each district The District Court
judges are appointed by the President and they serve for life. Cases
handled by the Federal District Courts include violations of constitution
and other Federal law, maritime disputes cases directly involving the
State or Federal government etc
• Above the District Courts there are appellate courts known as United
States Court of appeal They were established in 1891 The courts of
appeal consist of 11 judicial circuits throughout s0 States and in addition
one in the District of Columbia There are 6 to 27 judges in each circuit. In
addition to the appellate jurisdiction over the District Courts, the Courts
of appeal have original jurisdiction in cases involving challenge against
order of federal regulatory agencies
• The highest court in the federal system is the Supreme Court of United
States to consists of one Chief Justice and 8 Associate Judges.

State Court System

• The State Court System is complex No two State systems are exactly
alike Roughly the State court systems consist of courts at three levels The
 161

lowest level of State courts are generally known as inferior courts which
include Magistrate Courts, Municipal Court, Justice of peace Court,
Police Court. Traffic Court County Court etc They handle minor civil and
criminal cases More serious offences are handled by superior courts
known as State District Courts or Circuit Courts. They hear appeal from
inferior courts and original jurisdiction from major and civil cases.
• The major portions of the judicial trials occur in these courts The highest
State court is called the State of court of appeals or State preme Court
which hears appeals from State superior courts. In addition, it has original
jurisdiction over important cases

Criminal Process

The criminal process begins when a law is first broken and extends through the
arrest, indictment, trial and appeal There is no single criminal or civil court
process in the United States. Instead, the federal system has a court process at
the national level, and each State and territory has its own set of rules and
regulations that affect the judicial process Norms and similarities do exist
among all of these governmental entities. But no two States lave identical
judicial systems and no State's system is identical to that of the national
government

• An act is not automatically a crime because it is hurtful or sinful

An action constitutes a crime only if it specifically violates a criminal
statute duly enacted by Congress, a State legislature, or some other public
authority
• A crime, there is an offence against the State punishable by fine,
imprisonment or death A crime is a violation of obligations due to the
community as a whole and can be punished only by the State
• The sanctions of imprisonment and death cannot be imposed by a civil
court or in a civil action (although a fine may be a civil or a criminal
penalty In the United States. most crimes constitute sins of commission,
such a aggravated assault or embezzlement a few consist of sins of
omission, such as failing to stop and render and after a traffic accident or
failing to file an come tax return.
 162

• The State considers some crimes serious, such as murder and treason, and
this seriousness is reflected in the corresponding punishments, such as
life imprisonment or the death penalty.
• The State considers others crimes only mildly reprehensible, such as
double parking or disturbing the peace, and consequently punishments of
a light fine or a night in the local oil are akin to an official slap on the
wrist
• The "mens rea" is the essential mental element of the crime The US legal
system has always made a distinction between harm that was caused
intentionally and harm that was caused by simple negligence or accident.

Investigation and Prosecution

• The right of private prosecution and investigation by grand jury was

established in American colonies. The colony of Virginia had established
the post of Attorney General in 1643 to act as Public Prosecutor
• The District Attorney(DA) was entrusted with the power to prosecute
criminal offences on behalf of the people and to represent the people in
the grand jury process Now, in USA, the District Attorney plays a role in
the investigation through the provision of advice, by providing access to
investigative tools like grand jury

• The process by which the defendant is brought before the judge in the
court where he or she is to be tried is known as arraignment. The
prosecutor or a clerk will read the charge against the accused in the open
court the defendant has several options regarding the plea. The most
common pleas are that of guilty and not guilty
• The accused may also plead guilty by reason of insanity or former
jeopardy He can admit the facts of the case but claim that it will not
amount to a crime.
• If the accused pleads not guilty, the judge will schedule a date for trial If
the accused pleads guilty he may be sentenced after accepting the plea
The judge has to certify that the plea was voluntary and that the accused
was aware of the consequence of the plea

Plea Bargaining
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At both the state and federal levels. at least 90 percent of all criminal cases
never go to trial That is because before the trial date a bargain has been struck
between the prosecutor and the defendant's attorney concerning the official
charges to be brought and the nature of the sentence that the state will
recommend to the court. In effect, some form of leniency is promised in
exchange for a guilty plea Since plea bargaining virtually seals the fate of the
defendant before trial. the role of the judge is simply to ensure that the proper
legal and constitutional procedures have been followed

There are three types of plea bargaining such as

1. Reduction of charges

2. Deletion of tangent charges

3. Sentence bargaining.

Judicial system in United Kingdom

• United Kingdom does not have a single unified federal system England
and Wales have one system. Scotland has another system and Northern
Ireland has a third system. In certain matters the Tribunal constituted
under immigration law has jurisdiction over the whole of United
Kingdom. Certain other Tribunals constituted under some other laws have
jurisdiction over England, Wales and Scotland.
• The court in England and Wales consists of senior courts and subordinate
courts Senior courts are Court of Appeal. High Court of Justice and
Crown Court of appeal deals with appeal from other courts

• The High Court of justice functions as a civil court of first instance and
an appellate court as regards criminal and civil matters from subordinate
courts. It consists of 3 divisions namely Queens's bench, Chancery and
Family divisions
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• These divisions are not separate courts but have separate procedures and
practice adapted for their purposes Each division is exercising the
jurisdiction of the High Court

Crown Court is a criminal court of both original and appellate jurisdicton and
also handles certain civil cases of first instance and on appeal to the only court
in England and Wales that has jurisdiction to try cases on indictment and
regarding that matters it is the superior court and the high court has no appellate
jurisdiction on that matters Any judge of the High Court can sit to hear cases in
the Crown Court Regarding other matters crown court is an inferior court

Subordinate courts consist of magistrate's court, family proceeding court youth

court and county court The Magistrate's courts are presided over by a bench of
lay magistrates or a legally trained District Judge Lay magistrates are assisted in
their work by legally qualified justice's clerk. The task of these officials is wider
than the administrative role of many officials in other courts" They hear minor
criminal cases Youth courts deal with offenders to the age of 10 to 17 Some
Magistrate's courts also function as family proceeding courts dealing with
family matters. The county courts have only civil jurisdiction. They are presided
over by a District Judge

Supreme Court of United Kingdom

Supreme Court is the final court of appeal in United Kingdom for civil cases. It
is a final court of appeal for criminal cases from England, Wales and Northern
Ireland. It was established by Constitutional Reform Act 2005 Prior to the
establishment of the Supreme Court this jurisdiction was with the House of
Lords. The transfer of the authority from the House of Lords to the Supreme
Court was effected on October 2009

Judicial Committee of Privy Council

Privy Council is the highest court of appeal in some commonwealth Countries

and colonies and the Channel Islands Judges who preside over the judicial
committee of the Privy Council are also members of the Supreme Court The
jurisdichon to hear cases on devolution matters under the Scotland Act 1998
 165

Northern Ireland Act 1998 and Government of Wales Act 2006 was transferred
to the Supreme Court from the Privy Council

Investigation and Prosecution

• The English system continued to rely on essentially private investigations

and prosecutions till organised police services were legislated in the
Nineteenth Century The office of the Director of criminal prosecution for
England and Wales had a limited jurisdiction till the establishment of
Crown Prosecution Services (CPS) in 1986 So, the police had developed
their own arrangements for Conduct of criminal prosecution by
appointing solicitors of their own choice CPS ensured the independence
of prosecution from the police
• Further, prosecution control was centralized for England and Wales
specifying that the CPS would maintain a strict divide between its work
of the prosecutor and the work of the investigator.

The Royal Commission reviewed the prosecutor investigator divide and

recommended that the CPS shall not have a role in supervising police
investigations apart from giving advice to police. which the Royal Commission
encouraged However, it also recommended that the CPS shall not have the
power to direct the police to undertake further inquiries Independent decision
making as regarding the filing of charge is impossible for the prosecutor so long
as he remains dependent up on the police for relevant inform

In 2001 in England and Wales, in response to the problems of police over

charging and of subsequent failed prosecutions, the Auld Report recommended
that the responsibility for deciding whether to lay a charge should be transferred
from the police to the CPS and the British Government has indicated that it
intends to implement this recommendation Once the prosecutor has charge
responsibility. the prosecutor can require the police to investigate further before
agreeing to the commencement of criminal proceedings

Types of Trial
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Criminal trials in England and Wales take one of two forms they are cither
summary trials or trials on indictment Summary trial takes place in magistrate's
courts. The judges are magistrates (also known as justice of the peace')"

As regards mode of trial there are three classes of offences

1)An offence triable only on indictment is one for which an adult must be tried
on indictment

2) An offence triable either way is one for which an adult may be tried either on
indictment or summarily

3) An offence triable only summarily is one for which both adults and juveniles
must be tried summarily

Summary Trial

• A summary trial commences with the charge or information being put to

the accused by the clerk For this reason summary trial is also known as 'trial on
information Where it is alleged that two or more persons acted together to
commit an offence they may be jointly charged in one information, and will
normally be tried together
• This applies whether they were joint principal offenders or aiders and
abettors or a combination thereof An information must allege only one
offence, but two or more information may be tried together if ether the
accused or all the accused where there is more than one consents or the
magistrates think that the information are linked together so that the
interest rest of justice are best served by a single trial.
• Where a person charged with having committed an offence not
punishable summarily is brought before a magistrate's court, the court
must hold preliminary inquiry for the purpose of determining whether, on
consideration of the evidence there is sufficient evidence to put him upon
trial by jury for any indictable offence.
• The function of such proceedings is to ensure that no one shall stand trial
unless there is a prima facie case against him." Justices so acting are
known as examining justices and their functions may be discharged by a
single justice They are not a court of trial.
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At the conclusion of the summing up, the members of the jury consider their
verdict. The members of the jury may award together then and there, but it is
useful for a bailiff to be sworn and for the members of the jury to be conducted
to their retiring room to consider their verdict Although there is nothing to
prevent the trial judge from exhorting the jury to reach a verdict, it is a cardinal
principle of the criminal law that, since the verdict of a jury involves the liberty
of the subject. the jury must deliberate in complete and uninhibited freedom,
uninfluenced by any extraneous consideration whatsoever."

Judgment must be pronounced orally in open court by the trial judge Sentence
in the Crown Court is pronounced by a Crown Court judge. If the offender
comes before the Crown Court as a result of being committed for sentence, the
Crown Court judge must sit with two lay magistrates. This is subject to detailed
provisions in the Crown Court Rules 1982 which inter alia permit a Crown
Court judge and one lay magistrate to deal with a committal for sentence if
waiting for two lay magistrates would cause unnecessary delay.

Difference among the Adversarial Systems-USA,UK FRANCE,INDIA

• Even within the adversarial systems of trial there is vast difference

between the trial in USA, England and India
• As far as England and USA are concerned there is jury trial in existence.
As regards India, after the enactment of Code of Criminal Procedure,
1973, the trial by jury came to an end.
• Even regarding the jury trial, there is difference in the approach between
USA and UK As regards USA, where there is prosecutor control over the
investigation, many movements are towards inquisitorial approach
• As regards allegations against the President the entire investigating power
is with the Special Prosecutor.

• The submission of no case by the accused or his counsel after the close of
the evidence by the prosecution in UK, resembles the hearing under Sec.
232 CPC during the sessions trial in India.

• Such a procedure is not there after framing of charge in the cases triable
by the magistrates
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• In USA, there is dual court system such as federal and state. In UK even
the Supreme Court of United Kingdom has no jurisdiction over the
criminal cases from Scotland. After the Crown Prosecution Service was
implemented, there is prosecutor control over the investigation to a
certain extent Even though it ensures independence of the prosecuting
agency from the police, it has not that much control over the investigation
as in the case of USA

• Even though India is following adversarial system of trial, recent

movement in India like plea bargaining is a deviation from the
conventional Indian method. The power of the Magistrate to monitor the
investigation as held by the Hon'ble Supreme Court in Sakiri Vasu's case
the concept that the judge is not an Umpire, the broad interpretation of the
power of the judge u/s 165 of Evidence Act etc. are approaches towards
an inquisitorial system Anyhow, it is entirely different from the
inquisitorial system of trial which is followed in France

Preliminary investigation in the European countries with an inquisitorial system

of procedure has remained with the judge of the court of first instance. His
extensive powers include hearing of witnesses interrogation of the accused,
inspection on the spot, ordering searches and seizures, apprehension and arrest
of the accused to put him in the hands of the law."

The continental procedure has often been criticised for the use of non-
confrontative information in the dossier. The criticism is based on the fear that
the source of such information can lie in the rack and thumbs-crew techniques,
which may be deployed for the purpose.
• The apprehensions are not illusory However. the same can be said about
the common law countries where despite the protective rules of
procedure the police modes of torture are not unknown."

In the inquisitorial system, the case diary contains inter alia the first information
report which form the basis of the dossier, information received by the police
officer in connection with the investigation, reports of inspection of the spot
visited, statement of witnesses, any action required to be taken or directions
 169

given by a court in the course of the police investigations or the inquiry by the
court and any facts ascertained as a result thereof
• The case diary is available to the magistrate This gives him a complete
picture of the case before he proceeds to examine the complaint with a
view to determining further action, if necessary, by way of summoning
the accused, issuing warrants of arrest and subsequently to decide
whether to frame a charge against any person.
• This procedure is materially different from the one prevailing in English
law and procedure. It is true that the courts in India get a previous
knowledge of the case, which is not the case under the English law

• In the system of trial in France, even though there is decline in the

percentage of cases conducted by a Judge destruction, still no effective
alternative has been found out In France, the Reform Commission in
2009 recommended abolition of the office of the judge d'instruction with
the prosecutor taking responsibility for all investigations
• But due to controversy, the proposal was postponed Still there is doubt
about the effective investigation by the prosecutor in case of abolition of
the office of judge d'instruction

• As regards the plea of guilty, there is vast difference between the system
of trial in France and that in the remaining countries of common law
jurisdiction The procedure of plea bargaining was implemented in France
in the year 2004 which is different from that in USA
• It is only in respect of cases where maximum punishment is sentence of
imprisonment for 5 years Even though there are slight movements in
India which indicate inclination towards an inquisitorial system of inal,
the prospects of the same seems to be doubtful without having an
effective control over the investigating agency
• At least prosecutorial control over investigation is warranted with
sufficient safeguards
• If it is not feasible at least the independence of the investigative agency
from the clutches of the Government requires urgent consideration
• The fact that even the Central Bureau of Investigation in India is no an
independent agency for the time being is to be remembered in this
context.Reforms in the Indian Judicial system that promote movement to
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find out the truth without prejudice to the right of the accused to a fair
trial are to be welcomed

JUDICIAL REVIEW
Supremacy of law is the essence of Judicial Review. It is the power of court to
review the actions of legislature, executive and also of the judiciary. It is the
power to scrutinise the validity of law or any action whether it is valid or not. It
is a concept of Rule of Law. Judicial Review is the check and balance
mechanism to maintain the separation of powers & separation of functions.
Judicial Review is meant to uphold the constitutional sanity over the popular
will, where the popular will transgresses the constitutional limitations.
Origin
The doctrine of judicial review is one of the invaluable contributions of the
U.S.A. to the political theory. Its origin has been the result of a judicial decision
and its continuance has been possible due to some conventions. The concept of
judicial review was developed by Chief Justice Marshall of the American
Supreme Court in the famous Marbury v. Madison case (1803). In this case
Chief Justice Marshall laid down that the judiciary has the power to examine the
laws made by the legislature. It was also declared that if any such law is found
to be in violation of the constitution, then such a law would be declared by the
court as ultra-vires of the constitution. While doing so the Supreme Court
referred to Article VI, Section 2 of the Constitution.

Objectives
Judicial review is important because laws passed need to be checked to make
sure they are constitutional. Judicial review is important because it allows the
higher courts to review the outcomes of the lower courts. It helps to check on
the other branches of government. The main importance of judicial review is to
protect individual rights, to balance government powers and to create and
maintain equality to every person. The system of civil liberties that we know of
today would be very different without judicial review.

Judicial Review as formulated by Chief Justice Marshall of the American

Supreme Court had a no. of objectives:
i. To uphold the principle of the supremacy of the Constitution.
 171

ii. To maintain federal equilibrium i.e. balance between the centre and the
states.
iii. To protect the fundamental rights of the citizens.
Judicial Review in U.S.A
The US Constitution is the supreme law of the land. The Supreme Court has the
power to interpret it and preserve its supremacy by preventing its violations by
the Congress and the President. This provision has been the basis of the judicial
review power of the Supreme Court. “Judicial Review " is the principle and
authority which give the Supreme Court of USA the power to reject or abrogate
any law which is made by Congress or states. According to this power Supreme
Court of USA reject or abrogate any law which does not suit or conform to the
constitution of USA or apposite the constitution of USA or violate the
Constitution It has come to be recognised as the most distinctive attribute and
function of the Supreme Court. As such, it can be said Judicial Review is the
power of the Supreme Court to determine the constitutional validity of federal
and state laws whenever these are challenged before it in the process of
litigation. It is the power to reject such laws as are held to be it ultra vires.

There is no clear mention of the Judicial Review power of the court in any part
of the US Constitution. Its origin has been the result of a judicial decision and
its continuance has been possible due to some conventions.

The U.S. Constitution does not mention judicial review. This power, however,
was used before 1787 by courts in several of the American states to overturn
laws conflicting with state constitutions. In 1789 the Congress of the United
States passed the Judiciary Act, which gave federal courts the power of judicial
review over acts of state government. This power was used for the first time by
the U.S. Supreme Court in Hilton v. Virginia (1796).

In 1803, the power of judicial review was used for the first time by the U.S.
Supreme Court to declare an act of Congress unconstitutional. Acting under the
doctrine of Implied Powers, the Supreme Court in its judgement in Marbury v.
Madison case (1803), admitted its existence and used it. In this case, Chief
Justice John Marshall explained and justified the exercise of judicial review to
strike down an unconstitutional act of Congress or states. While doing so the
Supreme Court referred to Article VI, Section 2 of the Constitution which reads,
 172

“This Constitution and the laws of the United States which shall be made in
pursuance thereof; and all treaties made or which shall be made under the
authority of the United States, shall be the supreme law of the land, and the
judges in every state shall be bound thereby, anything in the constitution or laws
of any state to the contrary notwithstanding.” This article of the constitution was
taken to mean that the judges have the power and duty to uphold the supremacy
of the Constitution by not allowing any federal or state laws to violate its
provisions. While giving judgement in this case, which involved an
interpretation of the Judiciary Act 1789, Chief Justice Marshall enunciated this
doctrine and observed that “a written Constitution is superior to all other acts of
government made under it; and it is the sworn duty of federal judges to follow
the constitution and give effect only to constitutional law and determine which
law prevails where there is conflict. If a Congressional law conflicted with the
Constitutional law, the court was bound to uphold the Constitution as the
highest law of land.” “Courts are to respect the Constitution and the
Constitution is superior to any ordinary Act of legislature.” Since then the
Supreme Court has been exercising this this unique power and has declared a
number of legislative powers null and void.

After the historic judgement in the Marbury v. Madison case, the Supreme
Court has been regularly using this power. After 1803, it was used only in 1857
in the Dred Scott case. Till today nearly 100 Congressional statutes have been
declared unconstitutional by the Supreme Court. The Court has always refused
to apply judicial review to political questions.

Judicial Review is neither automatic nor mechanical. The bills passed by the
Congress and the state legislatures become operative the moment these become
laws. These do not automatically go to the court for judicial review. It is only
when any law is specifically challenged or when during the course of litigation
in a case, the issue of the constitutionality of any law arises that the conducts
judicial review.

After the judicial review is conducted the Supreme Court can give 3 types of
decisions. These are as follows:
i. That the law is unconstitutional.

In this case, the law stands struck down and it ceases to operate form the date on
 173

which the Supreme Court declares it invalid.

ii. That the law is constitutional and fair.

In this case, the law continues to operate as before without any change.

iii. That any part or some parts of the law are unconstitutional.

In this case, only the part or parts declared unconstitutional cease to operate and
the rest of law continues to operate. If, however, the part or parts declared
unconstitutional are so integral to the law that it cannot operate without them,
the whole law becomes invalid.

Judicial review is done by a bench of the Supreme Court and not by a single
judge. The verdict is given by majority. Sometimes it is a majority of only a
single judge.

· Due process of law as the basis of judicial review

On the basis of the Fifth Amendment of the Constitution, the scope of judicial
review has become very vast. In one of its clauses, it has been laid down that
“the Government cannot deprive anyone of life, liberty or property without due
process of law.” The term “Due Process of Law” means that the life, liberty or
property of the people cannot be subjected to arbitrary and unfair limitations by
the law or the executive or even by the judges in the process of awarding
punishments. In simple words, it stands for free and fair trial for meeting the
ends of justice.
The Supreme Court has used this principle to determine the validity of laws.
The Supreme Court while conducting judicial review, tests (1)as to whether the
law has been made strictly in accordance with the provisions of the Constitution
or not; and (2)as to whether the law satisfies the ends of justice and meets ‘due
process of law’ i.e. whether it is fair and just or not. The law is declared invalid
if it fails to satisfy either of these two tests.

· Limitations on the Supreme Court in respect of Judicial Review

1) The Court does not conduct judicial review over political issues.
2) While declaring a law unconstitutional the Court has to assign reasons and
specify the provisions of the Constitution that it violates.
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3) The Supreme Court conducts judicial review only in cases actually brought
before it. It cannot initiate the process of its own.
4) The law declared invalid ceases to operate for the future. The work already
done on its basis continues to be valid.
5) The Court has to demonstrate clearly the unconstitutionality of the law which
is sought to be declared invalid.
Judicial Review in India
The system of judicial review is also applicable in India. Although the term
Judicial Review has not been mentioned in the Constitution, the provisions of
various Articles of the Constitution of India have conferred the power of
judicial review on the Supreme Court. Accordingly the constitutional validity of
a legislative enactment or an executive order may be challenged in the Supreme
Court on the following grounds –

1. Violation of fundamental rights.

2. Outside the competence of the authority which has framed it.
3. It is repugnant to the Constitutional provisions.

The Supreme Court considerably widened the scope of judicial review in India
through its judgement in Maneka Gandhi’s case. In this case, the Supreme Court
accepted the concept of natural justice as one essential component of law
thereby importing the American concept of ‘due process of law’ into our
Constitution.

In the case of Charanjit Lal v. The Union of India, Justice Mukherjee observed:
“The court should prima facie lean in favour of constitutionality and should
support the legislation if it is possible to do so on any reasonable ground.” In
pursuance of this attitude the Supreme Court of India has enunciated the
doctrine of severability, which implies that only those portions of the law are
declared as void which are inconsistent with the provisions of the Constitution
and the rest of the law is permitted to operate. The Courts in India have
exercised power of judicial review with great restraint and attached more
importance to the express words of the Constitution rather than the spirit of the
Constitution.

Judicial Review under the Constitution of India stands in a class by itself. Under
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the Government of India Act of 1935, the absence of a formal Bill of Rights in
the constitutional document very effectively limited the scope of Judicial
Review power to an interpretation of the Act in the light of the division of
power between the centre and the units. Under the present Constitution of India
the horizon of judicial review was in the logic of events and things, extended
appreciably beyond a ‘formal’ interpretation of ‘federal’ provisions.

The debates of Constituent Assembly reveal, beyond any dispute, that the
judiciary was contemplated as an extension of the Rights and an ‘arm of the
social revolution’. Judicial Review was accordingly, desired to be an essential
condition for the successful implementation and enforcement of the
Fundamental Rights. Members of Constituent Assembly were agreed upon one
fundamental point that Judicial Review under the new Constitution of the
U.S.A., where the doctrine was more an ‘inferred’ than a ‘conferred’ power and
more implicit than ‘expressed’ through constitutional provisions.

In the Report of the abhor Committee of Supreme Court, it was recommended

that “a Supreme Court with jurisdiction to decide upon the constitutional
validity of acts and laws can e regarded as a necessary implication of any
federal scheme”. This was eventually extended to an interpretation of the laws
and executive orders on the touchstone of the Fundamental Rights. In the Draft
Constitution of India, this power of Judicial Review in relation to fundamental
rights found formal expression in Art. 8 (2) and Art. 25 (1) & (2) which, when
adopted by the nation’s representatives in the Constituent Assembly on
November 26, 1949, became the new Arts. 13 (2) and 32 (1) & (2), respectively,
under the Constitution of India.

However there was a sharp controversy among the members of the Constituent
Assembly over the perpetually veered question of reconciling the conflicting
concepts of the individuals’ fundamental and basic rights and the socio-
economic needs of the nation.

As a result Judicial Review, which was recognized as the basic and

indispensable precondition for safeguarding the rights and liberties of the
individuals, was sought to be tempered by the urge for building up a new
society based on the concept of welfare and social righteousness. The
consequence was a drastic curtailment of the power of judicial Review of the
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Supreme Court of India. The overriding need for ‘security of the State’
consequent on the partition of India and its after-math, and growing fissiparous
and subversive tendencies, merely provided further impetus to the process and
made it a fait accompli. What happened as a result was that the much debated
‘Due Process Clause’, which was previously inserted in the original Draft
Constitution, became the “first casualty”, and was eliminated from the purview
of the Rights to Personal Liberty. Under Art. 21 of the new Constitution of
India, it was replaced by ‘except according to procedure established by law’,
and in Art. 31 (1) it was substituted by ‘save by authority of law.’

Simultaneously with this ‘new awakening’, a cluster of provisions was

incorporated into the constitutional document so as to restrict the rights
envisaged in Arts. 19, 21, and 31, and reduce the Supreme Court’s power of
Judicial Review to one of ‘formal’ review. Lest Judicial Review stood in the
way of social and economic progress, the door was kept wide open, through a
comparatively flexible amending procedure, to impose the ultimate will of the
popular representatives in the matter of removing constitutional limitations.

Constitution has been working for about 60 years since it is adopted, but it is
indeed very difficult to make a correct appraisal of the course and development
of Judicial Review, and its specific directions and tendencies.

The foundation of the Indian Supreme Court’s Review-power was laid firmly
and well in the case of A.K. Gopalan v. State of Madras. This case not only
elucidated the principle of Judicial Review and the basis on which it would rest
in future, but at the same time evolved a set off guidelines which would
eventually set the pattern for the fundamentals of judicial approach to the Indian
Constitution. Form ‘Gopalan’ to ‘Golaknath’ is, indeed, a long march, not only
in respect of the nature and scope of Judicial Review itself, but in regard to the
impact and consequences of such Review on the attainment of social objectives,
too.

These two cases represent two distinct lines of judicial thinking, two distinct
tendencies, and, also two separate sets of social philosophy. One represents a
halting, over-cautious and tradition-bound attitude of the judiciary in restricting
its own freedom of action by sticking to the express phraseology of the
Constitution, scrupulously avoiding the nations of ‘Natural Justice’ and ‘Due
 177

Process’, and construing the law in favour of the legislature; the other represents
a big, bold, and almost revolutionary effort to resurrect Judicial Review by
expanding its horizon beyond a literal interpretation of the Constitution,
introducing novel concepts like ‘prospective overruling’ and convening a
Constituent assembly to amend the Fundamental Rights, and by prohibiting any
legislative amendment of Fundamental Rights in future. The ‘Gopalan’
decision, while restricting the ambit of the individual’s rights to freedom and
personal liberty, paved the way to the realization of the social objectives by its
clear enunciation of the principle of judicial subordination to legislative wisdom
and discretion, and by its emphasis on social control of individual liberties. The
‘Golaknath’ case, while trumpeting the individuals’ basic liberties as sacrosanct
and transcendental, has indeed, made it almost impossible to enact social
welfare legislation.

The Supreme Court of India has used the power of judicial review in various
cases. We may refer to the Golaknath case (1967), the Bank Nationalisation
case (1970), the Privy Purses Abolition case (1971), the Keshwananda Bharti
case (1973), the Minerva Mills case (1980) and so on. However while
exercising the power of judicial review, the Supreme Court has never adopted
the American practise as it is.

One of the most significant cases decided by the Supreme Court was
Golakhnath case of 1967in which the Supreme Court held that the Parliament
has no right to abridge or abrogate the Fundamental Rights granted by the
Constitution through an amendment of the Constitution. Thus it made the
Fundamental Rights transcendental and superior to the constituent power of the
Parliament through its power of judicial review. The Supreme Court continued
this attitude in the Bank Nationalisation and Privy Purses cases and challenged
the right of the Parliament to curtail the fundamental rights by the Parliament.
This attitude of the Supreme Court obliged the Congress Government to effect
24th, 25th and 26th amendments in the Constitution. It also made a bid to curtail
the right of the Supreme Court to declare a law affecting Fundamental Rights
under article 14, 19 and 31 as void of the law was passed to give effect to the
Directive Principles under Article 39 (b) or (c). These amendments were
challenged in the Keshwanand Bharati case.

During the emergency a bid was made to restrict the scope of judicial review
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through the Forty-Second Amendment. The power to determine the

constitutional validity of the central laws was exclusively vested in the Supreme
Court and the High Courts were deprived of their right in this regard.

The Janata Government on assumption of power made a bid to restore the

powers which were taken away from the judiciary during the emergency.by the
Forty-Third Amendment passed in December 1977 it restored to the Supreme
Court pre-emergency position with regard to power of judicial review over the
laws passed by the Parliament as well as the State Legislatures.

As a result of the Supreme Court judgement of March 1994 in the case of

S.R.Bommai and others v. The Union of India, also known as Assembly
dissolution case, the scope of judicial review was further widened. In recent
years the judiciary has further widened his field of operation by declaring
‘judicial review’ as a basic feature of the Constitution. Thus the Supreme Court
in India has not merely interpreted the language of the Constitution but also
pronounced on issues which involve matters of policy.
Judicial Review in India and USA : Comparison
The scope of judicial review in India is narrower than that of what exists in
USA, though the American Constitution does not explicitly mention the concept
of judicial review in any of its provisions.

In USA the judges exercise judicial review in a very aggressive manner. If the
judges think that a particular law and the philosophy of it is not liked by the
judges then, also the judiciary may reject the law. But such a thing never
happens in India. The Indian judges reject a law only on the basis of
unconstitutionality.

Moreover, it has also been seen that in USA, if a law is rejected by the Supreme
Court then the court will make a new law in its place. Although law making is
not the responsibility of the judiciary, the judiciary makes laws. Such judge-
made laws are very common in USA. But in India if a law is rejected by the
Supreme Court, the Court leaves the matter of making new laws to the
legislative. This has also been described as Judicial Activism by some of the
constitutional experts.
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The American Constitution provides for ‘due process of law’ against that of
‘procedure established by law’ which is contained in the Indian Constitution.
The difference between the two is: the ‘due process of law’ gives wide scope to
the Supreme Court to grant protection to the rights of its citizens. It can declare
laws violative of these rights void not only on substantive grounds of being
unlawful, but also on procedural grounds of being unreasonable. Our Supreme
Court, while determining the constitutionality of a law, however examines only
the substantive question i.e., whether the law is within the powers of the
authority concerned or not. It is not expected to go into the question of its
reasonableness, suitability or policy implications.

The American principle of judicial supremacy is also recognised in our

constitutional system, but to a limited extent. Nor do we fully follow the British
Principle of parliamentary supremacy. There are many limitations on the
sovereignty of the Parliament in our country, like the written character of the
Constitution, the federalism with division of powers, the Fundamental Rights
and the Judicial Review. In effect, what exists in India is a synthesis both, that
is, the American principle of judicial supremacy and the British principle of
parliamentary supremacy.

The scope of judicial review in India is somewhat circumscribed as compared to

that in the USA. In India the fundamental rights are not so broadly coded as in
the USA and the limitations there on have been stated in the constitution itself
and this task has not been left to the courts. The constitution makers adopted
this strategy as they felt that the courts might find it difficult to work out the
limitations on the fundamental rights and the same better be laid down in the
constitution itself. The constitution makers also felt that the judiciary should not
be raised at the level of ‘Super Legislature’, whatever the justification for the
methodology adopted by the makers of the Constitution, the inevitable result of
this has been to restrict the range of judicial review in India.

It must, however, be conceded that the American Supreme Court has consumed
its power to interpret the constitution liberally and has made so thorough a use
of the due process of law clause that it has become more than a mere interpreter
of law. It has, in fact come to occupy the position of a maker of law and has
been correctly described as a ‘third chamber of the legislature, indeed, as a
super legislature.’ Of course, the US Supreme Court has assumed this position;
 180

it has not been specifically conferred upon it by the constitution.

The framers of the Indian constitution took good care not to embody the due
process of law clause in the constitution. On the contrary, the Indian
constitution refers it to ‘procedure established by law’. It can invalidate laws if
they violate provisions of the constitution but not on the ground that they are
bad laws. In other words the Indian Judiciary including the Supreme Court is
not a Third Chamber claiming the power to sit in judgement on the policy
embodied in the legislation passed by the legislature.

The power of judicial review is exercised differently in different political

systems. In countries like the United Kingdom where the constitution is largely
unwritten and unitary in character and parliament is sovereign, the courts can
declare an act of parliament to be incompatible with the constitution, but they
cannot invalidate a law for being inconsistent with the constitution. In other
words, the judiciary can only interpret the constitution.

In Germany, the Constitutional Court is empowered to shoot down not only

ordinary laws but also constitutional amendments for being inconsistent with
the fundamental character of the constitution. The situation is different in
countries where a written and federal constitution limits the powers of
parliament. For instance, in the USA, the Supreme Court can strike down
legislation enacted by Congress if it finds the same to be incompatible with the
constitution.

However in India, there has been a long tussle between parliament and the
Supreme Court on the scope and limits of judicial review. The twenty-fourth
amendment to the constitution passed in 1971 authorised parliament to amend
any provision of the constitution. However, the Supreme Court subsequently
declared that while parliament was competent to amend any provision of the
constitution, any amendment had to conform to the basic framework of the
constitution. This led the government of Prime Minister Indra Gandhi to
introduce the forty-second amendment to the constitution during the
proclamation of emergency, which stripped the apex court of the power of
reviewing an amendment to the constitution. However, the forty-third and forty-
fourth amendments undid the provisions of the forty-second amendment
regarding powers of the Supreme Court to judge the validity of constitutional
 181

amendments.

Thus we see that the scope of Judicial Review in India is somewhat

circumscribed as compared to that in the U.S.A.

In India the fundamental rights are not so broadly coded as in the U.S.A and
limitations there on have been stated in the constitution itself and this task has
not been left to the courts. The constitution makers adopted this strategy as they
felt that the courts might find it difficult to work act the limitations on the
fundamental rights and the same better be laid down in the constitution itself.

The constitution makers also felt that the Judiciary should not be raised at the
level of 'Super legislature', whatever the justification for the methods logy
adopted by the constitution makers, the inevitable result of this has been to
restrict the range of judicial review in India.

It must, however, be conceded that the American Supreme Court has consumed
its power to interpret the constitution liberally and has made so thorough a use
of the due process of law clause that it has become more than a more interpreter
of law.

It has, in fact come to occupy the position of a maker of law and has been
correctly described as a 'third chamber of the legislature, indeed, as a super
legislature. Of course, the U.S. Supreme Court has assumed this position; it has
not been specifically conferred upon it by the constitution.

Like the American Supreme Court, the Supreme Court of India enjoys the
power of Judicial Review' and this power has been specifically recognized by
the constitution. However its authority in relation to 'judicial review of
legislation is more restricted than that of the American Supreme Court.

The framers of the Indian constitution took, good care not to embody the due
process of law clause in the constitution on the contrary, the Indian constitution
refers to 'procedure established by law' consequently, there has been no scope
for the development "Alexandrowicz is not conceived as an additional
constitution maker but as a body to apply express law."
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It can invalidate laws if they violate provisions of the constitution but not on the
ground that they are bad laws. In other words the Indian Judiciary including the
Supreme Court is not a Third Chamber claiming the power to sit in judgement
on the policy embodied in the legislation passed by the legislature.

Conclusion
Like the American Supreme Court, the Supreme Court of India enjoys the
power of judicial review and this power has been specifically recognised by the
constitution. However, we see that its authority in relation to ‘judicial review’ of
legislation is more restricted than that of the American Supreme Court.

Though the courts have the power of judicial review, the same cannot be
exercised in an arbitrary fashion. If the law-making power of parliament is not
unlimited, the courts` power to review the laws passed by parliament is also not
unlimited. Like other organs of the state, the judiciary derives its powers from
the constitution and the judges are as much under the constitution as anyone
else. They can interpret and invalidate laws but they cannot themselves assume
the law making function; nor can they confer that function on any person or
institution other than the federal or provincial legislatures. Nor can the courts
make constitutional what is manifestly unconstitutional. Sovereignty is located
neither in parliament nor in the judiciary but in the constitution itself.

Despite various shortcomings of judicial review, it cannot be denied that it has

played an important role in ensuring constitutional government in the country
by keeping the centre and the states in the respective spheres. It has also enabled
the Constitution to change according to changed conditions by imparting new
meaning to the constitution. Through the exercise of this power, the Supreme
Court has protected the freedom of citizens and protected their Fundamental
Rights against encroachment by the legislative and executive wings of the
government.

There is nothing in the world which is bad or good for itself but it is its uses
which make it bad or good. This review system also has same situation. If
Supreme Court use it only for country then it is very good but if Supreme Court
uses it and keeps their own interests in mind, it is worse for country as well as
countrymen.
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But we know that after principle of judicial care, Supreme Court never use it
against national interests and judges keeps national interests, safety, progress
and dignity in their mind instead of their own interests or conflicts.

So we can say it is very useful and beneficial for the country of USA and also in
India.
COUNTRIES FOLLOWING JUDICIAL REVIEW DOCTRINE:
• United Kingdom:
1) The Doctrine of Judicial Review was prevalent in England. Dr. Bonham
Case was decided in 1610 by Lord Coke was the foundation of judicial
review in England. But in the case of City of London v. Wood Chief Justice
Holt remarked that “An Act of Parliament can do no wrong, though it may
do several things that look pretty odd.” This remark establishes the ‘Doctrine
of Parliamentary Sovereignty’ which means that the court has no power to
determine the legality of Parliamentary enactments.
2) In U.K. there is a system which is based on Legislative Supremacy and
Parliamentary Sovereignty. Earlier, there was no scope of judicial review in
U.K., but after the formation of European Convention of Human Rights, the
scope of judicial review became wider.
3) The enactment of Human Rights Act, 1998 also requires domestic Courts to
protect the rights of individuals. In U.K., there is no written Constitution and
Parliamentary Supremacy is the foundation.
4) Principle of “Parliamentary Sovereignty” dominates the constitutional
democracy in U.K.
5) The two dimensions of legislation in U.K., are; I. Primary legislation, which
are basically legislations enacted by Parliament.
6) Primary legislation is outside the purview of judicial review except in few
cases which encroaches the law of European Community law. After the
formation of European Union and Human Rights Act 1998, Primary
legislation is subject to judicial review in some cases.
7) II. Secondary legislation, which provides rules, regulation, directives and act
of Ministries. Secondary legislation is subject to judicial review. There is no
exception to secondary legislation, all the executive and administrative
functions, rules, regulations can be reviewed by Courts and any of the
actions can be declared as unlawful which is ultra vires to the Constitution.
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8) In Les Verts v. European Parliament, it was held that the “European Union
is a community based on the Rule of law, inasmuch as neither its member
states nor its institutions can avoid a review of the question whether the
measures adopted by them are in conformity with the basic constitutional
character.”
Current Position of Judicial Review in U.K. :
1) In U.K., present scenario is much deviated to the judicial review.
2) The Courts in U.K. strictly followed the principles of judicial review with
regard to administrative actions and secondary legislations.
3) So far as primary legislations are concerned, they are outside the purview of
judicial review but with some exceptional cases.
Judicial review of administrative actions which are executive in nature are
mostly subject matter in the present scenario in U.K. In, R. (on the application
of Drammeh) v. Secretary of State for the Home Department,an immigration
detainee who had failed to take his medication for schizo-affective disorder and
had gone on hunger strike, but who did not lack mental capacity, failed to
establish that his detention was unlawful by virtue of his pre-existing serious
mental illness where the facts indicated that his actions were calculated to avoid
deportation.
4.The claimant applied for judicial review of the lawfulness of his immigration
detention. It was held that there was no doubt that the effect of detention on a
detainee's mental health was a very relevant factor in evaluating what
constituted a "reasonable period" of detention.
United States of America: The Constitution of U.S.A. didn’t expressly vest
this function of guardianship in the judiciary. But the common law doctrine of
ultra vires, according to which courts had the power and duty to invalidate the
act of an inferior body which transgressed the mandate of a superior authority
which is binding on the inferior or subordinate body.
• One of the fundamental process in the U.S. to determine the validity of
law is Judicial Review. The power of judicial review to declare the laws
unconstitutional and to scrutinise the validity of law implicitly
incorporated in the Art.III and IV of the Constitution of United States of
America. As early as 1803, Marbury’s Case,129 Marshall C.J., placed the
doctrine upon a sure footing by saying that since the Judges, as directed
by the Constitution itself, took oath to support the Constitution, which
constitutes the paramount law of the nation, it was the duty of the Judges
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to annul any law made by the Legislature which violated the Constitution
or was repugnant to it.

JUDICIAL REVIEW
• Judicial Review can be defined as the judiciary’s power to review the
legislation made by the Parliament on the Constitution
• Judicial Review creates a system of checks and balances between the
Judiciary and the Legislature by giving the judiciary the power to review
any law made by the Parliament and further hold it to be void if it is not
in consonance with the provisions of the Consonance with the provisions
of the Constitution.
One of the invaluable contributions of the American Constitution to the Indian
Constitution is the concept of judicial review. Its origin can be traced back to
the result of judicial judgement and has been alive due to the continuance of
certain conventions. Chief Justice Marshall of the American Supreme Court was
instrumental in developing this concept.
• The inception of judicial review can be granted to the Marbury v.
Madison case in which it was observed that “the constitution is either
superior paramount law, unchangeable by ordinary means or it is on a
level with ordinary legislative acts and like other acts are alterable when
the legislature shall please to alter it.” T
• he power of the judiciary to examine the laws made by the legislature was
laid down in this case. If the court did find a law to be in contravention to
the principles of the Constitution, then it would be held ultra-vires.

The importance of Judicial Review is that they generate a network of checks

and balances on the laws passed by the legislature. One more important feature
of Constitutional review is that the higher courts can asses and review the
judgements of the lower courts. Its aim is to protect individual rights, create a
balance of power in the government and to secure equality for every individual.

Origin
The doctrine of judicial review is one of the invaluable contributions of the
U.S.A. to the political theory. Its origin has been the result of a judicial decision
and its continuance has been possible due to some conventions.
• The concept of judicial review was developed by Chief Justice Marshall
of the American Supreme Court in the famous Marbury v. Madison case
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(1803). In this case Chief Justice Marshall laid down that the judiciary
has the power to examine the laws made by the legislature.
• It was also declared that if any such law is found to be in violation of the
constitution, then such a law would be declared by the court as ultra-vires
of the constitution.
• While doing so the Supreme Court referred to Article VI, Section 2 of the
Constitution.

Objectives

• Judicial review is important because laws passed need to be checked to

make sure they are constitutional. Judicial review is important because it
allows the higher courts to review the outcomes of the lower courts. It
helps to check on the other branches of government.
• The main importance of judicial review is to protect individual rights, to
balance government powers and to create and maintain equality to every
person.
• The system of civil liberties that we know of today would be very
different without judicial review.

Judicial Review as formulated by Chief Justice Marshall of the American

Supreme Court had a no. of objectives:
i. To uphold the principle of the supremacy of the Constitution.
ii. To maintain federal equilibrium i.e. balance between the centre and the
states.
iii. To protect the fundamental rights of the citizens.
Judicial Review in U.S.A
The US Constitution is the supreme law of the land. The Supreme Court has the
power to interpret it and preserve its supremacy by preventing its violations by
the Congress and the President. This provision has been the basis of the judicial
review power of the Supreme Court. “Judicial Review " is the principle and
authority which give the Supreme Court of USA the power to reject or abrogate
any law which is made by Congress or states.
According to this power Supreme Court of USA reject or abrogate any law
which does not suit or conform to the constitution of USA or apposite the
constitution of USA or violate the Constitution It has come to be recognised as
the most distinctive attribute and function of the Supreme Court.
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As such, it can be said Judicial Review is the power of the Supreme Court to
determine the constitutional validity of federal and state laws whenever these
are challenged before it in the process of litigation. It is the power to reject such
laws as are held to be it ultra vires.

There is no clear mention of the Judicial Review power of the court in any part
of the US Constitution. Its origin has been the result of a judicial decision and
its continuance has been possible due to some conventions.

The U.S. Constitution does not mention judicial review. This power, however,
was used before 1787 by courts in several of the American states to overturn
laws conflicting with state constitutions. In 1789 the Congress of the United
States passed the Judiciary Act, which gave federal courts the power of judicial
review over acts of state government. This power was used for the first time by
the U.S. Supreme Court in Hilton v. Virginia (1796).

In 1803, the power of judicial review was used for the first time by the U.S.
Supreme Court to declare an act of Congress unconstitutional. A
Acting under the doctrine of Implied Powers, the Supreme Court in its
judgement in Marbury v. Madison case (1803),
• admitted its existence and used it. In this case, Chief Justice John
Marshall explained and justified the exercise of judicial review to strike
down an unconstitutional act of Congress or states.
• While doing so the Supreme Court referred to Article VI, Section 2 of the
Constitution which reads, “
• This Constitution and the laws of the United States which shall be made
in pursuance thereof; and all treaties made or which shall be made under
the authority of the United States, shall be the supreme law of the land,
and the judges in every state shall be bound thereby, anything in the
constitution or laws of any state to the contrary notwithstanding.”
• This article of the constitution was taken to mean that the judges have the
power and duty to uphold the supremacy of the Constitution by not
allowing any federal or state laws to violate its provisions.
• While giving judgement in this case, which involved an interpretation of
the Judiciary Act 1789, Chief Justice Marshall enunciated this doctrine
and observed that “a written Constitution is superior to all other acts of
government made under it; and it is the sworn duty of federal judges to
follow the constitution and give effect only to constitutional law and
determine which law prevails where there is conflict.
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• If a Congressional law conflicted with the Constitutional law, the court

was bound to uphold the Constitution as the highest law of land.” “Courts
are to respect the Constitution and the Constitution is superior to any
ordinary Act of legislature.” Since then the Supreme Court has been
exercising this this unique power and has declared a number of legislative
powers null and void.
• After the historic judgement in the Marbury v. Madison case, the
Supreme Court has been regularly using this power. After 1803, it was
used only in 1857 in the Dred Scott case. Till today nearly 100
Congressional statutes have been declared unconstitutional by the
Supreme Court. The Court has always refused to apply judicial review to
political questions.

• Judicial Review is neither automatic nor mechanical. The bills passed by

the Congress and the state legislatures become operative the moment
these become laws. These do not automatically go to the court for judicial
review. It is only when any law is specifically challenged or when during
the course of litigation in a case, the issue of the constitutionality of any
law arises that the conducts judicial review.

After the judicial review is conducted the Supreme Court can give 3 types of
decisions. These are as follows:
i. That the law is unconstitutional.

In this case, the law stands struck down and it ceases to operate form the date on
which the Supreme Court declares it invalid.

ii. That the law is constitutional and fair.

In this case, the law continues to operate as before without any change.

iii. That any part or some parts of the law are unconstitutional.

In this case, only the part or parts declared unconstitutional cease to operate and
the rest of law continues to operate. If, however, the part or parts declared
unconstitutional are so integral to the law that it cannot operate without them,
the whole law becomes invalid.
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Judicial review is done by a bench of the Supreme Court and not by a single
judge. The verdict is given by majority. Sometimes it is a majority of only a
single judge.

· Due process of law as the basis of judicial review

On the basis of the Fifth Amendment of the Constitution, the scope of judicial
review has become very vast. In one of its clauses, it has been laid down that
“the Government cannot deprive anyone of life, liberty or property without due
process of law.” The term “Due Process of Law” means that the life, liberty or
property of the people cannot be subjected to arbitrary and unfair limitations by
the law or the executive or even by the judges in the process of awarding
punishments. In simple words, it stands for free and fair trial for meeting the
ends of justice. The Supreme Court has used this principle to determine the
validity of laws. The Supreme Court while conducting judicial review, tests
(1)as to whether the law has been made strictly in accordance with the
provisions of the Constitution or not; and (2)as to whether the law satisfies the
ends of justice and meets ‘due process of law’ i.e. whether it is fair and just or
not. The law is declared invalid if it fails to satisfy either of these two tests.

· Limitations on the Supreme Court in respect of Judicial Review

1) The Court does not conduct judicial review over political issues.
2) While declaring a law unconstitutional the Court has to assign reasons and
specify the provisions of the Constitution that it violates.
3) The Supreme Court conducts judicial review only in cases actually brought
before it. It cannot initiate the process of its own.
4) The law declared invalid ceases to operate for the future. The work already
done on its basis continues to be valid.
5) The Court has to demonstrate clearly the unconstitutionality of the law which
is sought to be declared invalid.

Judicial Review in India

• The system of judicial review is also applicable in India. Although the
term Judicial Review has not been mentioned in the Constitution, the
provisions of various Articles of the Constitution of India have conferred
the power of judicial review on the Supreme Court. Accordingly the
constitutional validity of a legislative enactment or an executive order
may be challenged in the Supreme Court on the following grounds –

1. Violation of fundamental rights.

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2. Outside the competence of the authority which has framed it.

3. It is repugnant to the Constitutional provisions.

The Supreme Court considerably widened the scope of judicial review in

India through its judgement in Maneka Gandhi’s case. In this case, the
Supreme Court accepted the concept of natural justice as one essential
component of law thereby importing the American concept of ‘due
process of law’ into our Constitution.

In the case of Charanjit Lal v. The Union of India, Justice Mukherjee

observed: “The court should prima facie lean in favour of
constitutionality and should support the legislation if it is possible to do
so on any reasonable ground.” In pursuance of this attitude the Supreme
Court of India has enunciated the doctrine of severability, which implies
that only those portions of the law are declared as void which are
inconsistent with the provisions of the Constitution and the rest of the law
is permitted to operate. The Courts in India have exercised power of
judicial review with great restraint and attached more importance to the
express words of the Constitution rather than the spirit of the
Constitution.

Judicial Review under the Constitution of India stands in a class by itself.

Under the Government of India Act of 1935, the absence of a formal Bill
of Rights in the constitutional document very effectively limited the
scope of Judicial Review power to an interpretation of the Act in the light
of the division of power between the centre and the units. Under the
present Constitution of India the horizon of judicial review was in the
logic of events and things, extended appreciably beyond a ‘formal’
interpretation of ‘federal’ provisions.

The debates of Constituent Assembly reveal, beyond any dispute, that the
judiciary was contemplated as an extension of the Rights and an ‘arm of
the social revolution’. Judicial Review was accordingly, desired to be an
essential condition for the successful implementation and enforcement of
the Fundamental Rights. Members of Constituent Assembly were agreed
upon one fundamental point that Judicial Review under the new
Constitution of the U.S.A., where the doctrine was more an ‘inferred’
than a ‘conferred’ power and more implicit than ‘expressed’ through
constitutional provisions.
 191

In the Report of the abhor Committee of Supreme Court, it was

recommended that “a Supreme Court with jurisdiction to decide upon the
constitutional validity of acts and laws can e regarded as a necessary
implication of any federal scheme”. This was eventually extended to an
interpretation of the laws and executive orders on the touchstone of the
Fundamental Rights. In the Draft Constitution of India, this power of
Judicial Review in relation to fundamental rights found formal expression
in Art. 8 (2) and Art. 25 (1) & (2) which, when adopted by the nation’s
representatives in the Constituent Assembly on November 26, 1949,
became the new Arts. 13 (2) and 32 (1) & (2), respectively, under the
Constitution of India.

However there was a sharp controversy among the members of the

Constituent Assembly over the perpetually veered question of reconciling
the conflicting concepts of the individuals’ fundamental and basic rights
and the socio-economic needs of the nation.

As a result Judicial Review, which was recognized as the basic and

indispensable precondition for safeguarding the rights and liberties of the
individuals, was sought to be tempered by the urge for building up a new
society based on the concept of welfare and social righteousness. The
consequence was a drastic curtailment of the power of judicial Review of
the Supreme Court of India. The overriding need for ‘security of the
State’ consequent on the partition of India and its after-math, and growing
fissiparous and subversive tendencies, merely provided further impetus to
the process and made it a fait accompli. What happened as a result was
that the much debated ‘Due Process Clause’, which was previously
inserted in the original Draft Constitution, became the “first casualty”,
and was eliminated from the purview of the Rights to Personal Liberty.
Under Art. 21 of the new Constitution of India, it was replaced by ‘except
according to procedure established by law’, and in Art. 31 (1) it was
substituted by ‘save by authority of law.’

• The foundation of the Indian Supreme Court’s Review-power was laid

firmly and well in the case of A.K. Gopalan v. State of Madras. This case
not only elucidated the principle of Judicial Review and the basis on
which it would rest in future, but at the same time evolved a set off
guidelines which would eventually set the pattern for the fundamentals of
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judicial approach to the Indian Constitution. Form ‘Gopalan’ to

‘Golaknath’ is, indeed, a long march, not only in respect of the nature and
scope of Judicial Review itself, but in regard to the impact and
consequences of such Review on the attainment of social objectives, too.

• The Supreme Court of India has used the power of judicial review in
various cases. We may refer to the Golaknath case (1967), the Bank
Nationalisation case (1970), the Privy Purses Abolition case (1971), the
Keshwananda Bharti case (1973), the Minerva Mills case (1980) and so
on. However while exercising the power of judicial review, the Supreme
Court has never adopted the American practise as it is.

• One of the most significant cases decided by the Supreme Court was
Golakhnath case of 1967in which the Supreme Court held that the
Parliament has no right to abridge or abrogate the Fundamental Rights
granted by the Constitution through an amendment of the Constitution.
Thus it made the Fundamental Rights transcendental and superior to the
constituent power of the Parliament through its power of judicial review.
The Supreme Court continued this attitude in the Bank Nationalisation
and Privy Purses cases and challenged the right of the Parliament to
curtail the fundamental rights by the Parliament. This attitude of the
Supreme Court obliged the Congress Government to effect 24th, 25th and
26th amendments in the Constitution. It also made a bid to curtail the
right of the Supreme Court to declare a law affecting Fundamental Rights
under article 14, 19 and 31 as void of the law was passed to give effect to
the Directive Principles under Article 39 (b) or (c). These amendments
were challenged in the Keshwanand Bharati case.

• As a result of the Supreme Court judgement of March 1994 in the case of

S.R.Bommai and others v. The Union of India, also known as Assembly
dissolution case, the scope of judicial review was further widened. In
recent years the judiciary has further widened his field of operation by
declaring ‘judicial review’ as a basic feature of the Constitution. Thus the
Supreme Court in India has not merely interpreted the language of the
Constitution but also pronounced on issues which involve matters of
policy.
 193

Judicial Review in India and USA : Comparison

The scope of judicial review in India is narrower than that of what exists in
USA, though the American Constitution does not explicitly mention the concept
of judicial review in any of its provisions.

In USA the judges exercise judicial review in a very aggressive manner. If the
judges think that a particular law and the philosophy of it is not liked by the
judges then, also the judiciary may reject the law. But such a thing never
happens in India. The Indian judges reject a law only on the basis of
unconstitutionality.

Moreover, it has also been seen that in USA, if a law is rejected by the Supreme
Court then the court will make a new law in its place. Although law making is
not the responsibility of the judiciary, the judiciary makes laws. Such judge-
made laws are very common in USA. But in India if a law is rejected by the
Supreme Court, the Court leaves the matter of making new laws to the
legislative. This has also been described as Judicial Activism by some of the
constitutional experts.

The American Constitution provides for ‘due process of law’ against that of
‘procedure established by law’ which is contained in the Indian Constitution.
The difference between the two is: the ‘due process of law’ gives wide scope to
the Supreme Court to grant protection to the rights of its citizens. It can declare
laws violative of these rights void not only on substantive grounds of being
unlawful, but also on procedural grounds of being unreasonable. Our Supreme
Court, while determining the constitutionality of a law, however examines only
the substantive question i.e., whether the law is within the powers of the
authority concerned or not. It is not expected to go into the question of its
reasonableness, suitability or policy implications.

The American principle of judicial supremacy is also recognised in our

constitutional system, but to a limited extent. Nor do we fully follow the British
Principle of parliamentary supremacy. There are many limitations on the
sovereignty of the Parliament in our country, like the written character of the
Constitution, the federalism with division of powers, the Fundamental Rights
and the Judicial Review. In effect, what exists in India is a synthesis both, that
is, the American principle of judicial supremacy and the British principle of
parliamentary supremacy.
 194

The scope of judicial review in India is somewhat circumscribed as compared to

that in the USA. In India the fundamental rights are not so broadly coded as in
the USA and the limitations there on have been stated in the constitution itself
and this task has not been left to the courts. The constitution makers adopted
this strategy as they felt that the courts might find it difficult to work out the
limitations on the fundamental rights and the same better be laid down in the
constitution itself. The constitution makers also felt that the judiciary should not
be raised at the level of ‘Super Legislature’, whatever the justification for the
methodology adopted by the makers of the Constitution, the inevitable result of
this has been to restrict the range of judicial review in India.

It must, however, be conceded that the American Supreme Court has consumed
its power to interpret the constitution liberally and has made so thorough a use
of the due process of law clause that it has become more than a mere interpreter
of law. It has, in fact come to occupy the position of a maker of law and has
been correctly described as a ‘third chamber of the legislature, indeed, as a
super legislature.’ Of course, the US Supreme Court has assumed this position;
it has not been specifically conferred upon it by the constitution.

The framers of the Indian constitution took good care not to embody the due
process of law clause in the constitution. On the contrary, the Indian
constitution refers it to ‘procedure established by law’. It can invalidate laws if
they violate provisions of the constitution but not on the ground that they are
bad laws. In other words the Indian Judiciary including the Supreme Court is
not a Third Chamber claiming the power to sit in judgement on the policy
embodied in the legislation passed by the legislature.

The power of judicial review is exercised differently in different political

systems. In countries like the United Kingdom where the constitution is largely
unwritten and unitary in character and parliament is sovereign, the courts can
declare an act of parliament to be incompatible with the constitution, but they
cannot invalidate a law for being inconsistent with the constitution. In other
words, the judiciary can only interpret the constitution.

In Germany, the Constitutional Court is empowered to shoot down not only

ordinary laws but also constitutional amendments for being inconsistent with
the fundamental character of the constitution. The situation is different in
countries where a written and federal constitution limits the powers of
parliament. For instance, in the USA, the Supreme Court can strike down
legislation enacted by Congress if it finds the same to be incompatible with the
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constitution.

However in India, there has been a long tussle between parliament and the
Supreme Court on the scope and limits of judicial review. The twenty-fourth
amendment to the constitution passed in 1971 authorised parliament to amend
any provision of the constitution. However, the Supreme Court subsequently
declared that while parliament was competent to amend any provision of the
constitution, any amendment had to conform to the basic framework of the
constitution. This led the government of Prime Minister Indra Gandhi to
introduce the forty-second amendment to the constitution during the
proclamation of emergency, which stripped the apex court of the power of
reviewing an amendment to the constitution. However, the forty-third and forty-
fourth amendments undid the provisions of the forty-second amendment
regarding powers of the Supreme Court to judge the validity of constitutional
amendments.

In India the fundamental rights are not so broadly coded as in the U.S.A and
limitations there on have been stated in the constitution itself and this task has
not been left to the courts. The constitution makers adopted this strategy as they
felt that the courts might find it difficult to work act the limitations on the
fundamental rights and the same better be laid down in the constitution itself.

The constitution makers also felt that the Judiciary should not be raised at the
level of 'Super legislature', whatever the justification for the methods logy
adopted by the constitution makers, the inevitable result of this has been to
restrict the range of judicial review in India.

It must, however, be conceded that the American Supreme Court has consumed
its power to interpret the constitution liberally and has made so thorough a use
of the due process of law clause that it has become more than a more interpreter
of law.

It has, in fact come to occupy the position of a maker of law and has been
correctly described as a 'third chamber of the legislature, indeed, as a super
legislature. Of course, the U.S. Supreme Court has assumed this position; it has
not been specifically conferred upon it by the constitution.

Like the American Supreme Court, the Supreme Court of India enjoys the
power of Judicial Review' and this power has been specifically recognized by
the constitution. However its authority in relation to 'judicial review of
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legislation is more restricted than that of the American Supreme Court.

Conclusion
Like the American Supreme Court, the Supreme Court of India enjoys the
power of judicial review and this power has been specifically recognised by the
constitution. However, we see that its authority in relation to ‘judicial review’ of
legislation is more restricted than that of the American Supreme Court.

Though the courts have the power of judicial review, the same cannot be
exercised in an arbitrary fashion. If the law-making power of parliament is not
unlimited, the courts` power to review the laws passed by parliament is also not
unlimited. Like other organs of the state, the judiciary derives its powers from
the constitution and the judges are as much under the constitution as anyone
else. They can interpret and invalidate laws but they cannot themselves assume
the law making function; nor can they confer that function on any person or
institution other than the federal or provincial legislatures. Nor can the courts
make constitutional what is manifestly unconstitutional. Sovereignty is located
neither in parliament nor in the judiciary but in the constitution itself.

Despite various shortcomings of judicial review, it cannot be denied that it has

played an important role in ensuring constitutional government in the country
by keeping the centre and the states in the respective spheres. It has also enabled
the Constitution to change according to changed conditions by imparting new
meaning to the constitution. Through the exercise of this power, the Supreme
Court has protected the freedom of citizens and protected their Fundamental
Rights against encroachment by the legislative and executive wings of the
government.

There is nothing in the world which is bad or good for itself but it is its uses
which make it bad or good. This review system also has same situation. If
Supreme Court use it only for country then it is very good but if Supreme Court
uses it and keeps their own interests in mind, it is worse for country as well as
countrymen.

But we know that after principle of judicial care, Supreme Court never use it
against national interests and judges keeps national interests, safety, progress
and dignity in their mind instead of their own interests or conflicts.

So we can say it is very useful and beneficial for the country of USA and also in
India.
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PRINCIPLES/DOCTRINES OF JUDICIAL REVIEW

To examine the constitutional validity of an act, judiciary in India follows
following principles.
1| Presumption in favor of constitutionality of law. /This also implies – no suo
moto JR of laws. [ However in case of violation of fundamental rights only,
judiciary goes for the application of suo-moto (example of judicial activism).]
2| The doctrine of liberal interpretation. e.g. Maneka Gandhi case.
3| Literal interpretation. e.g. A.K. Gopalan case.
4| Doctrine of reading down. e.g. Abolition of Section 377 of IPC. Part of law is
narrowed down while other provision continue to operate.
5| Doctrine of ab-initio – Some laws become invalid from the date constitution
comes into existence if they are in contradiction.
6| Doctrine of eclipse (shadow) – Judiciary may adopt the doctrine of eclipse by
which a law passed by duly constituted legislature is kept in a shadow. When?
When its principles appear in conflict with the constitution. However when
required, it can be validated. Doctrine of eclipse was declared in Bhikhaji
Narain vs State of MP case 1955. With respect to post-constitutional laws,
doctrine of eclipse was pronounced in State of Gujarat vs Ambika Mills case.

7| Doctrine of severability. It means entire law is not declared null and void but
only a part of law which seems inconsistent are taken out.
Doctrine of colorable legislation and doctrine of pith and substance. What
cannot be done directly, cannot be done indirectly. It will be treated as the
legislative fraud.
Doctrine of Prospective overruling. Taken from USA, for the first time applied
in Golakhnath case 1967.

8| Doctrine of basic structure. Invention of Indian Judiciary. It makes Indian

Supreme Court, the strongest court in the world. Why? In no other country,
judiciary has power to review amendments of the constitution. Judiciaries can
only review the ordinary laws. Amendment is the feature of the constitution
itself. Doctrine of basic structure allows judiciary to question the constitution
itself. /Judiciary has assumed the role of constituent assembly.
Doctrine of basic structure is to check the validity of constitutional amendment
ONLY. Why? Ordinary law can be questioned on the basis of the Constitution
(written provisions) whereas amendment needs to be tested on the basis of
‘basic structure’. It is not written in the constitution, it is to be determined by
Judiciary from time to time.
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9| Doctrine of due process of law & procedure established by Law.

10| Doctrine of Waiver.
In India, Judiciary does not accept the doctrine of waiver. Doctrine of waiver is
accepted in USA. Why in USA? People have absolute rights in USA. Hence
state cannot limit the rights, State can only request. The person can waive off
his rights voluntarily in the wider interest of the society. /Waiver means person
himself gives away his right.
Whether Supreme Court accepted Doctrine of waiver in case of passive
euthanasia? NO. Passive euthanasia is linked to right to ‘die with dignity’ which
itself is a part of ‘right to life’ under Art 21.
In India, doctrine of waiver has not been accepted because of poverty and
vulnerabilities.

The Commerce Clause

• The Commerce Clause is a provision of the U.S. Constitution (Article 1,
Section 8) that grants Congress the power “to regulate Commerce with
foreign Nations, and among the several States, and with the Indian
Tribes."
• This law gives the federal government the power to regulate interstate
commerce, which it defines as the sale, purchase, or exchange of
commodities or the transportation of people, money, or goods between
different states.
• Congress has historically cited the Commerce Clause as justification for
laws and regulations controlling the activities of the states and their
citizens. In some instances, these laws lead to controversy over the
constitutional division between the powers of the federal
government and rights of the states.
• The Commerce Clause describes an enumerated power listed in
the United States Constitution (Article I, Section 8, Clause 3). The clause
states that the United States Congress shall have power "[t]o
regulate Commerce with foreign Nations, and among the several States,
and with the Indian Tribes." Courts and commentators have tended to
discuss each of these three areas of commerce as a separate power
granted to Congress.
• Dispute exists within the courts as to the range of powers granted to
Congress by the Commerce Clause.
• However, the effect of the Commerce Clause has varied significantly
depending on the U.S. Supreme Court's interpretation.
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During the Marshall Court era (1801-1835), interpretation of the Commerce

Clause gave Congress jurisdiction over numerous aspects of intrastate and
interstate commerce as well as activity that had traditionally been regarded not
to be commerce. Starting in 1937, following the end of the Lochner era, the use
of the Commerce Clause by Congress to authorize federal control of economic
matters became effectively unlimited. Since United States v. Lopez (1995),
congressional use of the Commerce Clause has become slightly restricted again
to be limited to matters of trade or any other form of restricted area (whether
interstate or not) and production (whether commercial or not).
The Commerce Clause is the source of federal drug prohibition laws under
the Controlled Substances Act. In a 2005 medical marijuana case, Gonzales v.
Raich, the U.S. Supreme Court rejected the argument that the ban on growing
medical marijuana for personal use exceeded the powers of Congress under the
Commerce Clause. Even if no goods were sold or transported across state lines,
the Court found that there could be an indirect effect on interstate commerce
and relied heavily on a New Deal case, Wickard v. Filburn, which held that the
government may regulate personal cultivation and consumption of crops
because the aggregate effect of individual consumption could have an indirect
effect on interstate commerce.
United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995), was a landmark
case of the United States Supreme Court concerning the Commerce Clause. It
was the first case since 1937 in which the Court held that Congress had
exceeded its power to legislate under the Commerce Clause.
The case arose from a San Antonio high school student's challenge to the Gun-
Free School Zones Act of 1990, which banned possession of handguns near
schools. In a majority decision joined by four other justices, Chief
Justice William Rehnquist held that while Congress had broad lawmaking
authority under the Commerce Clause, that power did not extend to the
regulation of the carrying of handguns. In his dissent, Associate Justice Stephen
Breyer argued that Congress could regulate handgun possession under the
Commerce Clause because gun violence could have a significant effect on
interstate commerce by impairing educational environments.
Though it did not reverse any past ruling about the meaning of the Commerce
Clause, Lopez raised serious questions as to how far the Court might be willing
to go in curbing Congress' powers under the Commerce Clause. The Court
would later further limit congressional powers under the Commerce Clause
in United States v. Morrison (2000). After the Lopez decision, the Gun-Free
School Zones Act of 1990 was amended to specifically only apply to guns that
had been moved via interstate commerce.

Interpretation of Commerce: 1824 to 1995

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The first legal interpretation of the scope of the Commerce Clause came in
1824, when the Supreme Court decided the case of Gibbons v. Ogden. In one of
the first major expansions of the powers of the federal government, the Court
ruled that Congress could use the Commerce Clause to enact laws regulating
both interstate and intrastate trade.

In the 1905 case of Swift and Company v. United States, the Supreme Court
refined its 1824 interpretation by ruling that Congress could apply the
Commerce Clause in regulating the practices of local businesses—intrastate
commerce—only if those local business practices were in some way a part of a
“current” or stream of commerce that also involved the movement of goods
between states.

In the 1937 case of NLRB v. Jones & Laughlin Steel Corp, the Court
significantly broadened the reach of the Commerce Clause. Specifically, the
Court held that any local business activity could be defined as “commerce” as
long as it had or was likely to have a “substantial economic effect” on interstate
commerce. Under this interpretation, for example, Congress gained the power to
enact laws regulating local firearms dealers if any of the guns they sell are
manufactured outside of their states.

Over the next 58 years, not a single law based on the Commerce Clause was
invalidated by the Supreme Court. Then, in 1995, the Court narrowed its
interpretation of commerce with its ruling in the case of United States v. Lopez.
In its decision, the Court struck down parts of the federal Gun-Free School
Zones Act of 1990, finding that the act of possessing a firearm is not an
economic activity.

Current Interpretation: The Three-Part Test

When deciding that a state law is a valid exercise of the state’s power to
regulate interstate commerce under the implied prohibitions of the Commerce
Clause, the Supreme Court now applies this three-part test:

1. The law must in no way discriminate against or excessively interfere with

interstate commerce.
2. The commerce regulated by the state law must not be of a nature that
requires regulation by the federal government.
3. The federal government’s interest in regulating the commerce in question
must not outweigh the interest of the state.

To uphold a state law under the Commerce Clause, the Supreme Court must
find that the law’s benefits outweigh its burdens on interstate commerce. In
addition, the Court must find that in enacting the law, the state is not attempting
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to advance the economic interest of its own citizens over those of the citizens of
other states.

Current Applications in Law

In its 2005 decision in the case of Gonzales v. Raich, the Court returned to a
wider interpretation of the Commerce Clause when it upheld federal laws
regulating the production of marijuana in states that had legalized marijuana
possession.

The Supreme Court’s most recent interpretation of the Commerce Clause came
from the 2012 case of NFIB v. Sebelius, in which the Court upheld Congress’
power to enact the individual mandate provision of the Affordable Care
Act requiring all uninsured individuals to secure health insurance or pay a tax
penalty. In reaching its 5-4 decision, the Court found that while the mandate
was a constitutional exercise of Congress’ power to tax, it was not a proper use
of Congress's Commerce Clause or Necessary and Proper Clause powers.

DROIT ADMINISTRATIFF

• Droit Administratiff lays down the obligations of public administrative

organs along with which it helps in regulating the administrative relations
between the State and its citizens.
• Droit Administratif is a representation of judge-made rules decided in a
court of law and not of the rules carved out from the French Parliament.
• The body which is structured with the rules brought in by the
administrative courts is attached to the name of Napoleon Bonaparte.
• While the former was in support of the supremacy of executive powers,
the latter preferred the jurisdiction of ordinary courts only. The two
bodies that overtook authority from one another during the pre and post-
revolutionary France were then recognized as the Conseil du
Roi and Conseil d’Etat respectively.
Characteristics of Droit Administratif

1. The matters that are associated with the State and administration
oriented litigation are to be decided by the administrative courts and
not by the ordinary courts of the land.
2. While deciding matters concerning litigation as mentioned above, the
rules that are applied in the same are developed from the courts itself.
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3. The deciding agency in matters of jurisdiction conflicts between the

two courts, namely the administrative and ordinary, is known as
Tribunal des Conflicts.
4. The Droit Administratif acts as a safeguard for the government
officials from the authority of the ordinary courts.
5. The development of Conseil d’Etat is not a one-day plan but the
product of a long going process surrounding the French Revolution. It
played the role of both a consulting and an adjudicating body.

BASIC PRINCIPLES OF DROIT ADMINISTRATIF:

• The power of administration to act ‘suo motu’ and to impose directly on

the subject the duty to obey its decision.
• The power of administration to take decisions and to execute them ‘suo
motu’ may be exercised only within the scope of the law which protects
individual liberties against administrative arbitrariness.
• The existence of a specialized administrative jurisdiction. One speaks of
administrative jurisdiction because there decision relate to the superior
control of the counseil d’Etat either by means of appeal.

This is principle laid down by the counseil d’Etat, that from administrative
decisions. There is a right of appeal to the counseil even where the law is silent
or if it provides. That the tribunals are the final authority.

One good result of this is that an independent body reviews every administrative
action. The counseil d’Etat composed of eminent civil servant deals with a
variety of matters like claim for damages for wrongful acts of government
servants, income tax, pensions disputed elections, personal claims of civil
servants against the state for wrongful dismissal or suspension and so on.[1]

SIMILARITIES BETWEEN THE ENGLISH RULE OF LAW AND

DROIT ADMINISTRATIF OF FRANCE:

• The Droit administratif of France resembles (have a similarity to) the

English rule of law, because both are the result of ‘Case law’ or judge
made law.
• The counseil d’Etat of France has been converted from an executive into
a judicial or quasi-judicial body by the gradual (not rapid) process of its
judicial from and its executive function. In England, the judicial system
has grown as a result of transfer to parts of the King’s council of judicial
powers originally exercised by the ‘King-in-council. However, the
parliament destroyed the arbitrary authority of courts like the Star
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Chamber and of the council. In France, Droit administratif and

administrative tribunals were not only tolerated (sustain) but
progressively thrived (prosper) and have come to stay.
• In England, the crown and its servants was something beyond and above
the ordinary law. Such a concept of administration thrived in France.

DIFFERENCES BETWEEN THE ENGLISH RULE OF LAW AND

DROIT ADMINISTRATION

The following points of differences have been mentioned[1]:

• Droit administratif is not the law of a class and it is a distinct body of law
which may affect and does affect the rights of French citizen. In England,
there are laws, customs or regulations which determine the positions of
civil servants of the Head of the State. These laws, customs and
regulations constitute the law of a class. The powers exercisable by the
civil servants under these laws, customs and regulations must be
exercised in accordance with ordinary common law principle.
• If an official in England exceeds (be more) the authority given to him, he
incurs (suffer) the common law responsibility for his wrongful act and he
can not plead in his defense strict obedience to official orders and he
becomes amenable (responsible to law) to the authority of ordinary courts
for the tort he has committed. But in France the government and its
servant exercise wide discretionary powers which is not under the control
of any court. The executive or its servant can not be made amenable to
the jurisdiction of any tribunal for an act of the state.

Rules of Droit Administratif

Droit Administratif is a representation of judge-made rules decided in a court of
law and not of the rules carved out from the French Parliament. The series of
rules that, if compiled together, will result in the Droit Administratif are as
follows:

1. Rules that deal with administrative authorities and officials associated

with the same.
2. Rules that deal with public service operations to fulfil citizens’ needs.
3. Rules that deal with administrative adjudication.
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While the first rule applies to appointment, removal, allowances, obligations,

the second rule was made to focus on the welfare of the public which was to be
operated directly by the public officials or could have been delegated by them
and carried out under their authority. Private agencies could also have been
appointed to execute such rules. The third rule makes it clear that the highest
administrative court in the land is Conseil d’Etat. Infringement of any rights or
causing of injury associated with the private citizens of the land would directly
be handled by the administrative courts.

REASONS OF SUCCESS TO DROIT ADMINISTRATIF:

Droit administratif has been quite successful in subjecting the rule of law. This
success may be attributed to a combination of the following factors:

• The composition and functions of the Droit administratif itself.

• The flexibility of its ‘case law’.
• The simplicity of the remedies available before the administrative courts.
• The special procedure evaluated (natural process) by those courts.
• The character of the substantive law which they apply.

DROIT ADMINISTRATIFF IN FRANCE -EXPLAINED

In the context of the French system, the Administrative Law is taken to mean
the law according to which actions by the citizens against officials for wrongful
acts committed in their official capacity are tried not by ordinary courts of law
but by special administrative courts manned by civil servants. Such a view of
French Droit Administratiff was formulated and explained by the English jurist
A.V. Dicey.

He identified three distinguishing features of Droit Administratiff:

(i) By this law, the rights of the state are determined by a special body of law
and rules which are not applicable to the ordinary citizens.

(ii) The ordinary courts have no jurisdiction in cases in which the state or state
officials in their official capacity are a party. Such cases are tried by
administrative courts consisting of state officials instead of judges.
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(iii) As an inference, Dicey thought that a special protection is given to officials

in France for acts performed in their official capacities.

These features of the Administrative Law of France were, according to

Dicey, sharply different from the Br. system of the Rule of Law, which
stood for:
(i) Predominance of regular law on all.

(ii) Equality of all the citizens, whether officials or non-officials before the
ordinary law of the land as administered by ordinary courts. It repudiates the
system of special administrative courts; and

(iii) Primacy of the rights of the individuals as defined and enforced by ordinary
courts of the land.

The French System of Administrative Law relates to the following:

(i) Position and responsibility of the Government officials.

(ii) Relations between the citizens and the officials of the state, their rights and
duties.

(iii) The method through which the Government officials can exercise their
rights and perform their duties and the people may know as to what and to
which extent these rights and duties are going to influence their behaviour.

(iv) The officials of the state are governed by administrative law as applied by
administrative courts. The ordinary people are beyond the scope of
Administrative Law.

(v) In case of any dispute regarding the jurisdiction of Ordinary and

Administrative courts, the Court of Conflicts has the power to resolve the
dispute. The Council of State from the side of the administrative courts and the
 206

Court of Cassation from the side of the ordinary courts, send three
representations each to the Court of Conflicts. The Court of Conflicts takes the
help of three other members for resolving the disputes. The Minister of Justice
is the President of this court.

(vi) Administrative courts decide cases involving indiscipline or misconduct on

the part of officials.

Thus in France, a distinction is made between the officials and ordinary citizens
in respect of the securing of their rights and duties. However, this does not
involve any discrimination between ordinary citizens and officials in the sphere
of administration of justice.

BASIC STRUCTURE DOCTRINE

According to the Indian Constitution, the Parliament and the State Legislatures
can make laws within their jurisdictions. The power to amend the Constitution
is only with the Parliament and not the state legislative assemblies. However,
this power of the Parliament is not absolute. The Supreme Court has the power
to declare any law that it finds unconstitutional void. As per the Basic Structure
Doctrine, any amendment that tries to change the basic structure of the
constitution is invalid.

What is the Basic Structure Doctrine?

There is no mention of the term “Basic Structure” anywhere in the Indian
Constitution. The idea that the Parliament cannot introduce laws that would
amend the basic structure of the constitution evolved gradually over time and
many cases. The idea is to preserve the nature of Indian democracy and protect
the rights and liberties of people. This doctrine helps to protect and preserve the
spirit of the constitution document. The doctrine thus forms the basis of a power
of the Supreme Court to review and strike down constitutional amendments and
acts enacted by the Parliament which conflict with or seek to alter this "basic
structure" of the Constitution
It was the Kesavananda Bharati case that brought this doctrine into the
limelight. It held that the “basic structure of the Constitution could not be
abrogated even by a constitutional amendment”. The judgement listed some
basic structures of the constitution as:
 207

1. Supremacy of the Constitution

2. Unity and sovereignty of India
3. Democratic and republican form of government
4. Federal character of the Constitution
5. Secular character of the Constitution
6. Separation of power
7. Individual freedom

Over time, many other features have also been added to this list of basic
structural features. Some of them are:

• Rule of law
• Judicial review
• Parliamentary system

• Rule of equality
• Harmony and balance between the Fundamental Rights and DPSP

• Free and fair elections

• Limited power of the parliament to amend the Constitution
• Power of the Supreme Court under Articles 32, 136, 142 and 147

• Power of the High Court under Articles 226 and 227

Any law or amendment that violates these principles can be struck down by the
SC on the grounds that they distort the basic structure of the Constitution.

Evolution of the Basic Structure Concept

The concept of the basic structure of the constitution evolved over time. In this
section, we shall discuss this evolution with the help of some landmark
judgement related to this doctrine.
Shankari Prasad Case (1951)

• In this case, the SC contended that the Parliament’s power of amending

the Constitution under Article 368 included the power to amend the
Fundamental Rights guaranteed in Part III as well.
Sajjan Singh case (1965)

• In this case also, the SC held that the Parliament can amend any part of
the Constitution including the Fundamental Rights.
• It is noteworthy to point out that two dissenting judges, in this case,
remarked whether the fundamental rights of citizens could become a
plaything of the majority party in Parliament.
Golaknath case (1967)
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• In this case, the court reversed its earlier stance that the Fundamental
Rights can be amended.
• It said that Fundamental Rights are not amenable to the Parliamentary
restriction as stated in Article 13 and that to amend the Fundamental
rights a new Constituent Assembly would be required.
• Also stated that Article 368 gives the procedure to amend the
Constitution but does not confer on Parliament the power to amend the
Constitution. This case conferred upon Fundamental Rights a
‘transcendental position’.
• The majority judgement called upon the concept of implied limitations on
the power of the Parliament to amend the Constitution. As per this view,
the Constitution gives a place of permanence to the fundamental
freedoms of the citizens.
• In giving to themselves the Constitution, the people had reserved these
rights for themselves.
Kesavananda Bharati case (1973)

• This was a landmark case in defining the concept of the basic structure
doctrine.
• The SC held that although no part of the Constitution, including
Fundamental Rights, was beyond the Parliament’s amending power, the
“basic structure of the Constitution could not be abrogated even by a
constitutional amendment.”
• The judgement implied that the parliament can only amend the
constitution and not rewrite it. The power to amend is not a power to
destroy.
• This is the basis in Indian law in which the judiciary can strike down any
amendment passed by Parliament that is in conflict with the basic
structure of the Constitution.
Indira Nehru Gandhi v. Raj Narain case (1975)

• Here, the SC applied the theory of basic structure and struck down Clause
(4) of Article 329-A, which was inserted by the 39th Amendment in 1975
on the grounds that it was beyond the Parliament’s amending power as it
destroyed the Constitution’s basic features.
• The 39th Amendment Act was passed by the Parliament during the
Emergency Period. This Act placed the election of the President, the Vice
President, the Prime Minister and the Speaker of the Lok Sabha beyond
the scrutiny of the judiciary.
• This was done by the government in order to suppress Indira Gandhi’s
prosecution by the Allahabad High Court for corrupt electoral practices.
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Minerva Mills case (1980)

•This case again strengthens the Basic Structure doctrine. The judgement
struck down 2 changes made to the Constitution by the 42nd Amendment
Act 1976, declaring them to be violative of the basic structure.
• The judgement makes it clear that the Constitution, and not the
Parliament is supreme.
• In this case, the Court added two features to the list of basic structure
features. They were: judicial review and balance between Fundamental
Rights and DPSP.
• The judges ruled that a limited amending power itself is a basic feature
of the Constitution.
Waman Rao Case (1981)

• The SC again reiterated the Basic Structure doctrine.

• It also drew a line of demarcation as April 24th, 1973 i.e., the date of the
Kesavananda Bharati judgement, and held that it should not be applied
retrospectively to reopen the validity of any amendment to the
Constitution which took place prior to that date.
• In the Kesavananda Bharati case, the petitioner had challenged the
Constitution (29th Amendment) Act, 1972, which placed the Kerala Land
Reforms Act, 1963 and its amending Act into the 9th Schedule of the
Constitution.
o The 9th Schedule was added to the Constitution by the First
Amendment in 1951 along with Article 31-B to provide a
“protective umbrella” to land reforms laws.
o This was done in order to prevent them from being challenged in
court.
o Article 13(2) says that the state shall not make any law inconsistent
with fundamental rights and any law made in contravention of
fundamental rights shall be void.
o Now, Article 31-B protects laws from the above scrutiny. Laws
enacted under it and placed in the 9th Schedule are immune to
challenge in a court, even if they go against fundamental rights.
• The Waman Rao case held that amendments made to the 9th Schedule
until the Kesavananda judgement are valid, and those passed after that
date can be subject to scrutiny.
Indra Sawhney and Union of India (1992)
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• SC examined the scope and extent of Article 16(4), which provides for
the reservation of jobs in favour of backward classes. It upheld the
constitutional validity of 27% reservation for the OBCs with certain
conditions (like creamy layer exclusion, no reservation in promotion,
total reserved quota should not exceed 50%, etc.)
• Here, ‘Rule of Law’ was added to the list of basic features of the
constitution.
S.R. Bommai case (1994)

• In this judgement, the SC tried to curb the blatant misuse of Article 356
(regarding the imposition of President’s Rule on states).
• In this case, there was no question of constitutional amendment but even
so, the concept of basic doctrine was applied.
• The Supreme Court held that policies of a state government directed
against an element of the basic structure of the Constitution would be a
valid ground for the exercise of the central power under Article 356.
The doctrine of the basic structure helps to prevent legislative excesses, as was
evident in the Emergence Era. This is required as a shield against an all-
powerful parliament, which can resort to overuse of Article 368. There is
another school of thought, however, that says that if amendments help a
constitution to survive, they must include changes in the allegedly basic part of
the Constitution.
The critical analysis is as followed:

Check on absolute use of power:

Judiciary doesn’t subtract amendment powers or power to create laws,
it simply places bound restrictions so as to reinforce democratic principles.
Economical laws: Basic structure helps in increasing culture
of discussion that helps in bringing effective and economical laws for the
welfare of an individual.

Supremacy of constitution: It places restriction on

any establishment gaining vast power or power over others. It helps in
maintaining domination of constitution and its principles.
Political ideology: It prevents India from turning into battle ground for
various ideologies or amendment the country in line with specific ideologies or
ideologies of party in power.
Conclusion:
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The basic structure theory was accepted and recognized by the Judiciary but the
courts are still accepting the list or the constituents of the basic structure which
are coming into effect from the new emerging cases. It cannot be denied that the
basic structure doctrine has played a vital role in the life of the people hence now
it is clear that all constitutional amendments and laws are subject to judicial
review and if any such law tends to violate the basic structure it will be declared
unconstitutional and ultra vires. In the end we can summarize that limitation on
Parliament’s amending power is the essence of the basic structure doctrine

STARE DECISIS AND PREECEDENT

Decision which have already been taken by a higher court are binding to the lower
court and at the same time stand as a precedent to the lower court judgement,
which cannot be altered by lower court. This principle is known as Stare decisis,
which is derived from the Latin phrase “stare decisis et non quieta movere”,
which basically means to stand by the decided matters. In India it is commonly
known as the concept of precedent.

As per Black’s law dictionary stare decisis means to stand by decided cases, to
uphold precedents or to maintain former adjudications.

As explained by prof. A. Lakshminath, the doctrine of stare decisis helps to

generate judicial accountability along with it, it also ensures fairness in
adjudication and excludes arbitrariness and helps in maintaining stability and
certainty. Prof. further explained that stare decisis is both a social as well as a
legal norm.

Historical background
The desire for certainty and continuity in law gave rise to the doctrine of stare
decisis. This doctrine was initially used in medieval England and America, where
the common-law courts looked into the judgement of earlier cases as guidance
also they had power to reject those which they does not considered good or which
they considered bad.

Initially due to the lack of recording the decisions or judgement of cases in written
form, doctrine of stare decisis was not freely used, but after the concept of
recording the judgement came, widespread use of this doctrine was witnessed.

It was in 17th century for the first time in England, the decision of Exchequer
courts were given a binding force. Later in 1883 the urgent need for recognizing
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the binding force of precedents was brought into notice in the case of Mirehouse
v. Rennel. Further in 1873 and 1875 came up the Supreme Court Judicature Act,
were the theory was stare decisis was established. In India the concept of
precedent established after the Britishers came to India, which lead down the
hierarchy of courts and the concept of higher courts judgement binding the
decision of the lower courts.

In 1935 the Government of India Act, explicitly mentioned that the decision of
Federal Courts and Privy Council will be binding all the other Courts decision in
British India.

Hence, from 18th century till date stare decisis is a characteristic feature of our
legal system.

Doctrine of stare decisis under Art. 141 of the Constitution of India

Art. 141 of the Indian Constitution states that “law declared by Supreme Court
to be binding on all courts within territory of India.” Art. 141 state that only the
ratio decendi of a case is binding not the obiter dicta and the mere facts of the
cases. Therefore, while applying the decision of S.C. by other courts, what is
required is to understand the true principle lay down by the previous decision.

Some basic concept of Art.141

1. All the courts in India are bound by law to follow the decision of
Supreme Court.
2. Firstly, the judgement has to be read as a whole and at the same time the
observation from the judgement has to be determined in the light of the
questions presented before the court.

•A judgement is used as a precedent only if it is based on deciding or

resolving a question of law.

1. Sometimes while deciding a case court is divided, during that situation

the decision taken by the majority of judges will be later used as
precedent not the decision taken by the minority of judges.
2. Ex-parte decisions by S.C are also binding in nature and can be used as
precedents.
3. The S.C. is not bonded by its own decision.

• Procedural irregularity and immateriality do not invalidate the binding

nature of a judgement.
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• Special leave petition is binding in nature.

Precedent
The operation of the doctrine of precedent is based on Stare Decisis which is a
Latin term meaning that stand by the previous decision. The doctrine of precedent
refers that the legal decisions made by judges in higher courts are remained as a
precedent, so the decisions made by lower or equal courts in future are needed to
be followed the earlier decision made in the higher courts. It is believed that the
doctrine of precedent brings certainty to the English legal system.

The doctrine of precedent, a fundamental principle of English Law is a form of

reasoning and decision making formed by case law. It says that precedents not
only have persuasive authority but also must be followed when similar
circumstances arise. Any principle announced by a higher court must be
followed in later cases. In short the courts are bound within prescribed limits by
prior decisions of superior courts. Judges are also obliged to obey the set-up
precedents established by prior decisions. This legal principle is called Stare
decisis.
Adherence to precedent helps achieve two objects of the legal order. Firstly it
helps to maintain a system of stable laws. This stability gives predictability to
the law and affords a degree of security for individual rights. Secondly it
ensures that the law develops only in accordance with the changing perceptions
of the community and therefore it more accurately reflects the morals and
expectations of the community.

Types of precedents

1. Original and Declaratory precedents– original precedents refer to those

cases where there is a question of law which has not been decided before,
and then in such a case the decision of the judge forms original An
original precedent is a law for the future, which creates and applies new
rules. Declaratory precedent means those cases where application of an
existing rule of law is used. In such cases it is seen that the rule is applied
because a law already existed on it.
2. Authoritative or Binding precedent– it is also known as mandatory
precedent or as a binding authority. It means those decisions which the
judges must follow whether they approve it or not. It basically denotes
the higher courts decisions which are binding over the lower courts of
that region.
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3. Persuasive precedent– these precedents are not as binding as the

authoritative precedents. These precedents means that while making any
judgement the judge has to consider these precedent and has to give
higher weightage to it. The main concept behind considering it is that it
is relevant and can help in making a fair decision. These cases could be
of could which are put at similar level in the hierarchy of courts. Even
lower court decision can play a role of persuasive precedent.

Decisions which are not considered binding under Art. 141 of Indian
Constitution
There are some decision which are not considered as a precedent or which do not
have a binding effect. Those are:

1. The decision that is not expressed

2. The decision not founded on reasons,
3. The decision that does not proceed on consideration of the issue.
4. Obiter dicta of a case is not binding, hence it cannot be relied upon
solely as a ground to hold any statutory rule invalid.it has a persuasive
value.
5. Decision is rendered per incuriam is not binding in nature. Per
incuriam’s literal meaning is resulting from an ignorance. Hence any
decision made on per incuriam, it is not used as a precedent.
6. Decision is rendered sub-silentio, and then also it is not used as
precedent. Sub-silentio means to a situation when the point of law
involved in the decision is not perceived by the court. It means when a
point of law or particular question of law was not consciously
determined.
7. C’s observations on the facts of the cases are not binding.

Advantages of precedents
Precedent means to follow the same which has been done earlier. Hence the first
step while considering the precedent is to look the similarity, if there is any then
the magnitude or degree of similarity that existed between the problems. After
this it has to be seen whether the same has been used before a precedent and has
resolved the problem.in this manner the precedent works. Therefore the
advantages our legal system enjoys by adapting this doctrine are-:

1. It is time saving avoids unnecessary litigations

2. There is an orderly development of the law
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• It brought greater certainty and consistency in law, which is the most

remarkable advantage. As a good decision making body needs to have
consistency

1. Avoid arbitrariness in judgements.

2. It eliminates the element of ambiguity and enables the lower courts to
follow the decision of higher court unanimously.
3. The presence of precedent decreases the probability of a judge making
a mistake.
4. It also serves the concept and interest of justice as giving different
decision to similar situation might be considered unjust.

Disadvantages of precedents
Every good thing comes with it by-products which are bad or has negative effect.
Some of the negative effect of stare decisis doctrine are-:

• Also practical law is based on experience, by considering precedent the

scope of experience decreases which hampers the essence of practical
law.
• It is being criticised because of its limiting effect over the development of
law.
• The first and foremost disadvantage of this doctrine and the precedent
system is its rigidity.
• Other disadvantage is its complexity which sometime makes situation
more uncertain.
• Many time judicial mistakes are being continued in the form of precedent.

Conclusion
Hence, the stare decides doctrine is very helpful for our judicial system. But at
the same time the convenience of following the precedent should not be let to
degenerate into just a mechanical exercised performed without any thought. It
should be used carefully, in the view of promoting justice and equity.

CONCEPT OF STATE UNDER ARTICLE 12-PUBLIC ENTITIES –

Ι. INTRODUCTION
The Constitution of India had followed the U.S. precedent and enacted
Fundamental Rights in the Constitution itself. The United States Constitution
has defined its legislative and executive powers in two Articles, which makes it
easier to define their correlation. However, the Indian Constitution being an
elaborative one, it is difficult to correlate the legislative and executive powers
 216

because those powers are to be found in widely separated parts of our

Constitution.
ΙΙ. MEANING OF STATE UNDER ARTICLE 12 OF THE CONSTITUTION
OF INDIA
• The term “State” is defined under Article 12 of Part III (Fundamental
Rights) of the Constitution of India. body politic, or society of men united
together for the purpose of promoting their mutual safety and advantage,
by the joint efforts of their combined strength.
• An Individuals need constitutional protection from the acts of the state
itself. Fundamental rights protection is available against the state only as
ordinary laws are sufficient enough to protect infringement of rights by
individuals. It states that, “the State” includes the Government and
Parliament of India and the Government and the Legislature of each
States and all local or other authorities within the territory of India or
under the control of the Government of India.
• The definition in Article 12 is only for the purpose of application of the
provisions contained in Part III. Hence, even though a body of persons
may not constitute ‘State’ within the instant definition, a writ under
Article 226 may lie against it on non-constitutional grounds or on
grounds of contravention of some provision of the Constitution outside
Part III, e.g., where such body has a public duty to perform or where its
acts are supported by the State or public officials.
• Article 12 defines state in the following manner: 1. The Government and
Parliament of India 2. The Government and Legislature of each of States
3. Local Authorities or 4. Other Authorities Within the territory of India
or under the control of Government of India.
ΙΙΙ. OTHER AUTHORITIES
• The interpretation of other authorities in Article 12 has caused a good
amount of difficulty with constant changes which has undergone judicial
opinions.
• Today's government perform major functions because of the developed
philosophy of social welfare. It sometimes acts through a natural person
and the other times as a juridical person.
• So, wider the meaning of the term, more the coverage can be brought to
the attributed to which gradually led to disputes as there has been no
clear explanation of the phrase in the Constitution and therefore its
interpretation is entirely left on the Court to decide.
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• The private persons must also act in public interest while performing
various public functions and duties.
• Public functions and duties- If the private persons are performing certain
public functions or/and duties, then they can safely be regarded as State
within the meaning of Article 12. Government may not have any
statutory control over the NGOs, as such, still it can be established that a
particular NGO has been substantially financed directly or indirectly by
the funds provided by the appropriate government, in such an event, that
organisation will fall within the scope of Section 2(h)(d)(ii) of the RTI
Act (definition of public authority).
• Consequently, even private organisations which are, though not owned
or controlled but substantially financed by the appropriate government
will also fall within the definition of public authority.
In Ujjain Bai v. State of U.P, the Supreme Court observed that Article 12
winds up the list of authorities falling within the definition by referring to “other
authorities” within the territory of India which cannot, obviously, be read as
ejusdem generis with either the Government or the Legislature or Local
authorities. The word “State” is of wide amplitude and capable of
comprehending every authority created under the statute and functioning within
the territory of India. There is no characterization of the nature of authority set
up under a statute for the purpose of administering laws enacted by the
Parliament or by the State including those vested with the duty to make
decisions in order to implement those laws.
The preponderant considerations for pronouncing an entity as a State agency or
instrumentality are:
1. Financial resources of the state being the Chief finding source;
2. The functional character being governmental in essence;
3. Plenary control residing in government; prior history of the same activity
having been carried on by the government and made over to the new body;
4. Some element of authority or command. Whether the legal person is a
corporation created by a statute, as distinguished from under a statute, is not an
important criterion although it may be an indicium.
The term ‘other authorities’ in Article 12 has nowhere been defined. Neither in
the Constitution nor in the general clauses Act, 1897 nor in any other statute of
India. Therefore, its interpretation has caused a good deal of difficulty, and
judicial opinion has undergone changes over time. The functions of a
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government can be performed either the governmental departments and officials

or through autonomous bodies which exist outside the departmental structure.
Such autonomous bodies may include companies, corporations etc.
So, for the purpose of determining what ‘other authorities’ fall under the scope
of State, the judiciary has given several judgements as per the facts and
circumstances of different cases.
1) In the University of Madras v. Shanta Bai, the Madras High Court evolved
the principle of ‘ejusdem generis’ i.e., of the like nature. It means that only
those authorities are covered under the expression ‘other authorities’ which
perform governmental or sovereign functions. Further, it cannot include
persons, natural or juristic, for example, Unaided universities.
2) In the case of Ujjammabai v. the State of U.P., the court rejected the above
restrictive scope and held that the ‘ejusdem generis’ rule could not be resorted
to the in interpreting ‘other authorities. The bodies named under Article 12 have
no common genus running through them and they cannot be placed in one
single category on any rational basis.
3) In Rajasthan Electricity Board v. Mohan Lal, the Supreme Court held that
‘other authorities’ would include all authorities created by the constitution or
statute on whom powers are conferred by law. Such statutory authority need not
be engaged in performing government or sovereign functions. The court
emphasized that it is immaterial that the power conferred on the body is of a
commercial nature or not.
Whether university is a state?
The Madras High court held in the case of the University of Madras v Santa
Bai that father authority is those authorities which could indicate a similar of its
kind or of like nature it to relied on the legal maxim ejusdem generis which
means of the same kind. Authorities performing sovereign or governmental
functions were to be brought under the ambit of the State along with deep and
pervasive control of the state. But this maxim which was exercised by Madras
High Court was rejected in the case of Uijambai v. the State of U.P. and held
that there exists no common genus or connection among the authorities under
Article 12.
• In the landmark judgement of Ajay Hasia v. Khalid Mujib where for the
First time, the guidelines of what should be considered as a ‘state’ were
laid down and Supreme court laid down certain criteria to adjudge the
body if it is an instrumentality of State under Article12.
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• In particular, if any department which falls under the government is

moved to a corporation or enterprise, this can lead to a strong inference
of the organization being an agency or tromentality of the
state/government.
• Neither the structure of the body nor the function body in question
matters is it a statutory or non-statutory body. It is important to note that
even if anyone or other according to the test of instrumentality laid down
in the case of Ajay Hasia is attracted then that alone would not be
sufficient to assume that the body carrying Functions of public nature
falls under the definition of the state government.
• The question for each situation should be considered based on certainties
accessible with respect to whether in the light of the established
scenarios which are faced in the form of cumulative facts, the body in
question is exercising its duties under the control of the government be it
a financial control, functional control or have any kind of administrative
domination of the government.
• Mere regulatory control whether under statute or otherwise would not be
enough to serve to make a body a part of the State.
Whether BCCI is a State?
When a private body in the absence of any authorization or delegation chooses
to discharge such functions those out to state functions or public duties which
have no legal prohibition per se may be considered Falling under the
instrumentality of the State.
The BCCI performs a public function, which cannot be termed under the ambit
of State mentioned in Article 12 .The law emerged gradually with constant
efforts of the courts and now it appears to be Finally settled in the view of
judgment of a seven Constitution Bench of the Supreme Court in The case of
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology where it was
concluded white referring to certain authorities that the tests given in Ajay
Hasia Judgment were not rigid, that if a body passes any principle then it is to
be declared as an instrumentality of state The main test according to them was
of funding and control. It is not easy to determine the body in question through
the tests determined in the classic judgments then it entirely depends on the
courts to decide whether the body in question falls under State according to
Article 12 or not. The courts have adopted the stance bring as many bodies as
possible within the disciple of the Fundamental Rights as wider the concept
wider the coverage.
WHETHER “STATE” INCLUDES THE JUDICIARY
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The definition of State under Article 12 of the Constitution does not explicitly
mention the Judiciary. Hence, a significant amount of controversy surrounds its
status vis-a-vis Part III of the Constitution. Bringing the Judiciary within the
scope of Article 12 would mean that it is deemed capable of acting in
contravention of Fundamental Rights. It is well established that in its non-
judicial functions, the Judiciary does come within the meaning of State.
However, challenging a judicial decision which has achieved finality, under the
writ jurisdiction of superior courts on the basis of a violation of fundamental
rights, remains open to debate
On the one hand, the Judiciary is the organ of the State that decides the contours
of the Fundamental Rights. Their determination, of whether an act violates the
same, can be right or wrong. If it is wrong, the judicial decision cannot
ordinarily be said to be a violation of fundamental rights.
If this were allowed, it would involve protracted and perhaps unnecessary
litigation, for in every case, there is necessarily an unsatisfied party. On the
other hand, not allowing a decision to be challenged could mean a grave
miscarriage of justice, and go unheeded, merely because the fallibility of the
Judiciary is not recognized. The erroneous judgment of subordinate Court is
subjected to judicial review by the superior courts and to that effect,
unreasonable decisions of the Courts are subjected to the tests of Article 14 of
the Constitution.
The Bombay High Court expressed the view that the Judgment of the Court
cannot be challenged for violation of Fundamental Rights.
1) In the case of Naresh v. State of Maharashtra, The issue posed before the
Supreme Court for consideration whether the judiciary is covered by the
expression ‘State’ in Article 12 of the Constitution. The Court held that the
fundamental right is not infringed by the order of the Court and no writ can be
issued to High Court. However, in yet another case, it was held that High Court
Judge is as much a part of the State as the executive.
2) In Rati Lal v. State of Bombay, it was held that Judiciary is not State for
the purpose of Article 12. But Supreme Court in cases of A.R. Antulay v. R.S.
Nayak and N. S. Mirajkar v/s State of Maharashtra, it has been observed that
when rulemaking power of Judiciary is concerned it is State but when exercise
of judicial power is concerned it is not State.
3) In Amirabbas v. State of M.B., the Court made the following observation:
Denial of equality before the law or the equal protection of the laws can be
claimed against executive or legislative process but not against the decision of a
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competent tribunal. In R.D Shetty v. Airport Authority of India Justice P.N

Bhagwati gave 5 Point test .This is a test to determine whether a body is an
agency or instrumentality of the state and goes as follows – o Financial
resources of the State, where State is the chief funding source i.e. the entire
share capital is held by the government.
• Deep and pervasive control of the State
• The functional character being Governmental in its essence, meaning
thereby that its functions have public importance or are of a governmental
character.
• A department of Government transferred to a corporation.
• Enjoys “monopoly status” which State conferred or is protected by it.
• This was elucidated with the statement that the test is only illustrative and
not conclusive in its nature and is to be approached with great care and
caution. In Germany also just as in Canada Constitutional rights have
indirect horizontal effect but they do not directly control or govern
private law disputes between individuals. But there are differences in the
position of law in both countries. For instance all private laws in
Germany are directly subject to the Constitutional rights contained in
Basic Law.
• There was also some initial confusion in Germany as to the vertical and
horizontal effect because of the language of the Constitution which is
declaratory at some part and universal in some other part. Constitutional
rights bind only governmental organs they apply to all private law and so
have indirect effect on private actors whose legal relationships are
regulated by that law. This was also affirmed in the Luth case wherein the
FCC held that the primary purpose of basic law is protection from public
officials in private law.
• But the Basic Law establishes ‘an objective order of values’ that must be
looked as a fundamental constitutional decision affecting all spheres of
law and in that case the private law such as that invoked by the plaintiff
should be interpreted in the spirit of the Basic Law and a responsibility
was imposed on the judges at the lower echelons to correctly understand
the constitutional principle in the area of law under review.241
The Court by applying the doctrine held that the constitutional value of freedom
of conscience contained in Article 4 of the Basic Law.
It exerts a substantial influence on the interpretation and application of the
relevant private employment law, which requires terminations to be ‘socially
justified.’ In India the government can be held liable for infringing the right to
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privacy of individuals. But such right cannot be exercised against private bodies
regardless of the power wielded by such private body.
Organisations like Uber, Google cannot be charged with violation of right to
privacy because such right does not exist against private bodies. The
fundamental rights are bestowed upon the individuals with the sole reason of
safeguarding the rights of public against the infringements by the undertakings
which come under the definition of State. In the present scenario, the bodies
which are not state could also infringe rights of the public, hence fundamental
rights should also be enforceable against them as well. The court should adopt
such line of reasoning while deciding cases where the body does not strictly fall
within the definition of state. Conclusion
STATE AUTHORITY
The words ‘State’ and ‘Authority’ used in Article 12 remain as great
generalities of the Constitution the content of which has been and continuously
supplied by the Court from time to time. Initially the definition was treated as
exhaustive and confined to the authorities or those which could be read ejusdem
generis with the authorities mentioned in the definition of Article 12.
• The next stage was reached when the ‘State’ came to be identified with
the conferment of sovereign power by law. A considerable change
happened when Mathew J. applied the test of instrumentality and agency
i.e. ‘the voice and hands approach’ in Sukhdev Singh, according to which
the government must be acting through the body in question. R.D. Shetty
and Ajay Hasia took the test to another level and established that the
cumulative effect of the entire test i.e. government monopoly, public
functions, financial and administrative control, transfer of a government
department as necessary to call an entity as an ‘instrumentality or agency’
and thereby ‘other authority’ under Article 12.
• These tests were crystallised and became a single test in Pradeep Kumar
Biswas which stated that if a body or entity if financially functionally and
administratively controlled by the government, then the body or authority
can be held as a state. Constitution should be kept adept to meet the social
transformation.
• This role is in the hands of the judiciary. Now non-state actors are the
power-centres in the society. Most of the essential services are at their
hands and there is a diminution in the role of the state as ‘service
provider.’ In this context the judiciary needs to relook into the feasibility
of tests are devised by the Court under Article 12 to enforce fundamental
rights against private actors.
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• A declaration of private actors as ‘State’ is necessary because of the

changing role of State in the light of the neo-liberal reforms inducted
from 1991 onwards. Now the most of the functions traditionally
performed by the states are performed by private actors. If the
fundamental rights are rendered ineffective against private bodies when
they violate fundamental right it is a clear negation of constitutional
values and principles.
• The US doctrine of state action can serve as a tool to interpret and include
private actors as ‘State’ under Article 12.

CONCEPT OF LAW UNDER ART 13 OF THE CONSTITUTION

ARTICLE 13 OF THE INDIAN CONSTITUTION

• Fundamental rights are very important and significant in part 3 of the

Indian constitution. Fundamental rights are contained in part 3 of the
Indian constitution, they are sacrosanct in nature.
• They are the soul of the constitution, most important articles in indian
constitution are article 12 and article 13 now here we will look at article
13 of the indian constitution. Fundamental rights are considered to be on
the level of god no one can’t amend them.
• Article 13 of the indian constitution do upholds the supremacy over
Indian constitution and do paves way to judicial review.
• Through the article 13 the parliament and state legislatures are being
prohibited from making such laws that may infringe or take away the
fundamental rights by the indian constitution itself.
• The pre-existing laws may not able to meet the changing conditions of
today’s lifestyle of people. So article 13 gives the power to high court and
supreme court to re-write the pre-constitutional laws, so as to make laws
meet the changing conditions of today’s lifestyle of people.

Article 13 talks about four principle of fundamental rights.

• It expressively provides for judicial review.
• Laws inconsistent with fundamental rights
• All laws that are inconsistent with or in derogation of any
fundamental rights shall be void.
• Sc(32), HC(226) can declare a law unconstitutional on the above
ground.
In the article 13 the term law means.
1. Permanent laws
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• Parliament
• State assembly
2. Temporary laws
• Ordinances
3. Statutory Instruments
• Bye laws
• Rules
• Regulation
• Notification
Article 13 declares: Constitutional amendment is not a law and can’t be
challenged. The article 13 not only asserts the supremacy of indian constitution
but also makes way for judicial review. This legislation creates scope for
reviewing pre-constitutional and existing laws. Although the legitimacy of
Judicial interventions in constitutional matters has sparked debates, yet in most
cases, the power of judicial review is evoked to protect and enforce the
fundamental right guaranteed in Part 3 of the Indian constitution .

AMENDMENT TO ARTICLE 13 OF THE CONSTITUTION

• The 24th amendment to the Indian constitution was enacted by the then
Indira Gandhi government in November 1971.
• The objective was to nullify the supreme court’s ruling that had left the
parliament with no power to curtail the fundamental rights. Clause(4) was
inserted in Article 13 which states that Nothing in this article shall apply
to any amendment of this constitution made under article 368.
• This provision adds more power to the Parliament when it comes to
amending the constitution. It brought Fundamental rights within the
purview of amending the constitution. It brought fundamental rights
within the purview of amendment procedure and judicial intervention or
review of those amendment was prohibited
Article 13 of the Constitution deals with ‘Laws’ that are inconsistent with
Fundamental Rights guaranteed to the Citizens. This is one of the most
important articles and crux of why fundamental rights are an integral part of
our constitution. This is that Article that makes Fundamental Rights justiciable
and hence, enforceable in courts of law.

The first clause of the article deals with pre-constitution laws. Our constitution
was enacted in the year 1950, however there are several such laws that were
enacted much before the constitution came into being.

These laws include Indian Penal Code, 1860; Indian Evidence Act, 1872; Indian
Contract Act, 1872 and so on and so forth. It is important to understand that
before the Constitution, the law that used to govern was the Government of
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India Act, 1935. It is interesting to note that this particular act had no mention
of any Fundamental Rights guaranteed to the subjects.

• Therefore, the question whether any law is in contravention of the FR’s

had not arisen hitherto. Therefore, the first clause of Art. 13 provided
that any law which is in contravention to the fundamental rights, shall be
declared to be void ‘to the extent that it violates such an article’.

• Further, the second clause lays down that the State shall not make any
law which takes away or abridges the rights of the citizens. Therefore, if
there is any such law which violates Fundamental Rights then it becomes
void ab initio. Moreover, any law made in the contravention of this
clause shall, to the extent of the contravention be void. Therefore, if the
state enacted any law which abridged the fundamental rights of the
citizens, the court would then rightly strike down that particular law.
Therefore, it is said that the judiciary, especially the apex court is the
guardian of Fundamental Rights. The effect of this clause is that no
Fundamental Right can be infringed by the state either by legislative or
administrative action. The power of the legislature thus, is limited by the
very fundamental restriction prescribing that it cannot enact laws which
inconsistent with the Fundamental Rights of the Citizens. However, the
word ‘Law’ in this Article created deliberations over the years.

The term ‘law’ in Article 13 has been given a wide connotation so as to

include any ordinance, order, bye-law, rule, regulation, notification,
custom or usage having in the territory of India the force of law [Art.
13(3)(a)]. This clause makes it clear that not only law made by the
legislature but also an order or notification which takes away
Fundamental Rights are subject to Judicial Review. However, these are
not included in the ambit of the term ‘law’ in Art. 13.

(i) Administrative Instruction; this was held in Punit Rai vs. Dinesh Chaudhary
(ii) Bye Laws of a co-operative society; held in Co-op Credit Bank v Industrial

Tribunal

As to respect with Personal Laws and Customs, the Supreme Court has taken
differing views while dealing with personal laws. In a number of cases it has
held that personal laws of parties are not susceptible to Part III of the
Constitution. On the contrary, in a number of other cases the Supreme Court has
tested Personal Laws on the touchstone of fundamental rights and read down
these laws or interpreted them as to make them consistent with fundamental
rights.
 226

However, the most important question w.r.t to Article 13 is whether ‘law’

would include Constitutional Amendments enacted by the parliament under
Article 368. This has been discussed thoroughly in the following Supreme Court
Cases:

1. Shankari Prasad Singh

In Shankari Prasad Singh vs. UOI, the validity of the First Constitutional
Amendment Act was challenged before the Supreme Court. The argument
against this amendment was that it violates Article 13 of the Constitution which
prohibits enacting of a law infringing fundamental right, and that the word ‘law’
would include any law, even a law amending the constitution and, therefore, the
validity of such a law could be judged with reference to the Fundamental Rights
which it could not infringe. Here, posed a conflict between Article 13 and
Article 368. Adopting the literal rule of Interpretation, the Supreme Court
upheld the validity of the First Amendment. The court rejected the contention
and limited the scope of Art.13 by ruling that the word ‘law’ would not include
a constitution amending law pased under Article 368. The court held that “We
are of the opinion that in the context of Article 13, law must be taken to mean
rules and regulations made in the exercise of ordinary legislative power and not
amendments to the constitution made in the exercise of constituent power with
the result that Article 13(2) does not affect amendments made under Article
368”. The court thus disagreed with the view that the Fundamental Rights are
inviolable and beyond the reach of the process of Constitutional Amendments.
The court thus held that Art. 13 refers to a ‘legislative law’ and not to a
‘constituent’ law.

2. Sajjan Singh

The judgement of the Shankari Prasad Case was bought for review in the case
of Sajjan Singh vs. Rajasthan. In this particular case, the petitioner had
challenged the validity of the Constitution (Seventeenth)Amendment Act, 1964.
This amendment again adversely affected the Right to Property, as a number of
legislations affecting property rights were placed in the Ninth Schedule and
were hence outside the purview of Judicial Review. However, the court upheld
the judgement given in the Shankari Prasad Case and held by a majority of 3:2
that Article 368 could be exercised over each and every provision of the
Constitution, including Fundamental Rights. The court again drew the
distinction between and ‘ordinary law ‘ and a ‘constitutional’ law made in
exercise of the ‘constituent’ power and held that only the former, and not the
latter, fell under Article 13.

3. Golak Nath Case

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The question whether any of the Fundamental Rights could be abridged or taken
away by the parliament was raised again in the Case of I.C. Golaknath vs. State
of Punjab. Again the validity of the Constitution (Seventeenth) Amendment Act
was challenged in this case. The then Chief Justice Koka Subha Rao constituted
a 11 Judge Bench to hear the matter. The court ruled in the favour of the
petitioners and hence, overruled the judgements of Shankari Prasad and Sajjan
Singh Cases by a majority of . The court now held that Fundamental Rights
were non-amendable through the constitutional amending procedure under
Article 368. The majority in this case was worried at the numerous amendments
of the Fundamental Rights which had taken place since 1950’s. It apprehended
that if the courts were to hold that Parliament had the power to take away
Fundamental Rights, a time might come when these rights are completely
eroded and India would gradually pass under a totalitarian regime. The majority
thus sought to make the Fundamental Rights inviolable by the constitutional
amendments by ruling that the parliament could not, under Article 368, amend
any Fundamental Rights. It also held that the fact that a larger majority or
ratification of states would not make the constitutional amendment any the less
a ‘law’. Therefore, the amendment made under Article 368 is a ‘law’ and is
therefore subject to Article 13.

The court therefore, ruled that the word ‘Law’ in Article 13 would hence,
include constitutional Amendments’.

The 24th Constitutional Amendment Act, 1971

In order to neutralize the effect the effect of the Golak Nath Judgment, the
Indira Gandhi Government passed what is called the Constitution (Twenty
Fourth) Amendment Act, 1971. This particular legislation made several changes
in Article 368 and Article 13 of the Constitution. Inter alia, it added a clause in
Art. 13 declaring that Article 13 shall not apply to any Constitutional
Amendment made thereof under Art. 368. It also added a clause in Article 368
which laid down that nothing in Article 13 shall apply to any constitutional
amendment made under Art. 368. This amendment also altered the title of
Article 368 from “Procedure for Amendment of the Constitution” to ‘Power of
Parliament to amend the Constitution and Procedure thereof”. Therefore, this
particular in Amendment statutorily overturned the decision in the Golak Nath
Case. This particular Amendment was however challenged in Kesavananda
Bharati Case.

4. The Final Decision : Kesavananda Bharati Case

This was the finalcase which settled the dispute between the Parliament and the
Judiciary. In this case, the validity of the 24th and 25th Constitutional
Amendments were challenged before the Supreme Court. The then Chief Justice
 228

SM Sikri constituted a 13 judge bench as the Golaknath Case which had 11

judges, was under review. All the judges unanimously overturned the judgment
delivered in Golak Nath Case. Justice Hegde and Justice Mukherjee held
that “An examination of various provisions of our constitution shows that it has
made a distinction between the ‘the Constitution’ and ‘the laws’. It was asserted
that the constitution-makers did not use the exception law in Art. 13 as
including ‘constitutional law’. This would thus mean that Article 368 confers
power to abridge a fundamental right.” The court therefore, in this case, upheld
the validity of the 24th and 25th Constitutional Amendments and further also
laid down that the word ‘Law’ in Article 13 would hence, not include a
constitutional amendment. Therefore, it restored the power of the parliament to
amend the fundamental rights and such a law made under Article 368 shall not
be struck down by the courts.

What the Constituent Assembly intended ?

At this point it is important to understand what the Constituent Assembly

thought about Article 13. In the Assembly there was a member called Mr. K
Santhanam, who tabled an amendment which asked the assembly to add a
clause in Article 13 making it explicit that the word ‘Law’ shall not include
Constitutional Amendments. This particular amendment was also passed by
Sardar Patel, however when it came to the drafting committee, this particular
amendment was dropped. This argument was however not taken up during any
of these cases.

What’s the difference between France’s president and prime minister?

France offers almost a balanced power sharing between the president and the
prime minister. Although the responsibilities of both leaders are not explicitly
expressed in the constitution, over time it has evolved as a matter of political
expediency based on constitutional principles.

President of Franc
The President of the Republic of France is elected through universal suffrage for
five years, limited to two terms. The French President is the supreme
commander of the military, and he/she determines the broad guidelines for
defence. The President’s chief role is to determine government policy with the
help of his Council of Ministers. The President appoints the Prime Minister and
approves the appointment of the Ministers. The current president is Francois
Hollande who was elected in May 2012.
Prime Minister of France
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The President appoints the Prime Minister of France, and his/her position can be
revoked through a censure motion by the National Assembly. The Prime
Minister, after appointment, forms the government by appointing ministers. The
proposed ministers have to be approved by the President. The Prime Minister is
mandated to direct the actions of the government and to coordinate ministerial
and governmental actions. The prime minister ensures that the ministers do not
undertake contradictory measures and he/she arbitrates in the case of conflicts.
The Prime Minister oversees the implementation of laws and national defense.
The current prime minister is Manuel Valls who took office on April 1, 2014.
Council of Ministers
The members of the cabinet are appointed by the President after they are
proposed by the Prime Minister. The Ministers are entrusted to oversee their
individual ministries and to implement government policy. The Council holds
weekly meetings which are presided over by the President. The cabinet also
proposes legislation to parliament through bills and supervises public legal
entities operating under their ministries’.
Parliament Of France
France has a bicameral parliamentary system made up of the National Assembly
(lower house) and the Senate. A total of 577 Deputies are elected to the
National Assembly every five years by individual districts. Members of the
Senate are elected by an electoral college, comprised of district council
members, deputies, and municipal council members. The 348 Senators are
elected for a six-year term. Members of Parliament are elected for two rounds
during the election. An aspiring candidate is elected on the first round when
he/she accumulates an absolute majority of total votes. The second round is
mostly a runoff between two candidates.'
Judiciary Of France
France has a strong independent judiciary which oversees the judicial system’s
operations. Judges of the Court of Cassation are appointed by the President after
nominations are put forward by the high Council of the Judiciary. There is a
nine-member constitutional council which ensures the constitutionality of
proposed legislation or decrees.
Administration Of France
France is divided into 22 administrative regions, each governed by an elected
regional council. The council is mandated to stimulate social and economic
activities. The 22 regions are further broken down into 96 departments, the
governance of which is mandated to the elected general council. The
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departments are further divided into districts and communes. The communes are
governed by the mayor and undertake municipal responsibilities.
PRESIDENT AND PRIMEMINISTER
The president is directly elected by the French people every five years. The
French Constitution declares him head of state and gives him control over
foreign policy and defence.

After parliamentary elections—held every five years, or sooner if the president

calls them—the president appoints a prime minister. The appointment requires
the approval of Parliament, so the PM almost always comes from the party that
controls the chamber. The prime minister serves as head of government and is
in charge of domestic policy and day-to-day governing. He also recommends
for presidential approval the other members of his Cabinet.

Cohabitation, in which the president has had to share power with a prime
minister of a different party, has occurred three times since 1986.

France has a semi-presidential system of government, with both a President and

a Prime Minister. The Prime Minister is responsible to the French Parliament. A
presidential candidate is required to obtain a nationwide majority of non-blank
votes at either the first or second round of balloting, which implies that
the President is somewhat supported by at least half of the voting population.
As a consequence, the President of France is the pre-eminent figure in French
politics. He appoints the Prime Minister. Though the President may not de
jure dismiss the Prime Minister, nevertheless, if the Prime Minister is from the
same political side, he can, in practice, have him resign on demand. The
President appoints the ministers, ministers-delegate and secretaries. When the
President's political party or supporters control parliament, the President is
the dominant player in executive action, choosing whomever he wishes for the
government, and having it follow their political agenda (parliamentary
disagreements do occur, though, even within the same party).
However, when the President's political opponents control parliament, the
President's dominance can be severely limited, as he must choose a Prime
Minister and government who reflect the majority in parliament, and who may
implement the agenda of the parliamentary majority. When parties from
opposite ends of the political spectrum control parliament and the presidency,
the power-sharing arrangement is known as cohabitation. Before
2002, cohabitation occurred more commonly, because the term of the President
was seven years and the term of the National Assembly was five years. With the
term of the President shortened to five years, and with the presidential and
 231

parliamentary elections separated by only a few months, this is less likely to

happen.
The President of France is elected by direct popular vote. He or she is the head
of state and represents France in international diplomacy. The president is also
in charge of the civil service and the military. The President can only be
removed through a special procedure and only for cause.

The Prime Minister of France is the member of the legislature who leads a
majority of the members of the coalition. They are the head of government. As
such, he or she is not directly elected, but is indirectly elected. The Prime
Minister only serves as long as the coalition lasts - if he can’t command a
majority of the votes in the legislature, he either has to give up the post or ask
the President to call an election.

In France, for instance, the president and the prime minister can cooperate and
work towards a common goal if both control a majority of seats in the national
assembly. However, if the majority of seats in the national assembly are
controlled by the opponent, the president could be marginalized, allowing the
opposition prime minister exercise most powers. The prime minister is always
the president’s appointee, and the president has to follow the rules of the
legislature in selecting the leader of the majority party. Therefore, the president
and the prime minister could form allies, and sometimes they could be rivals.
When they are rivals, they are referred to as cohabiting. Other countries have
adopted a variant of the French hybrid system, and they include countries like
Sri Lanka, Romania, and Portugal among others.

SEPERATION OF POWERS

The concept of separation of powers is the rudimentary element for the

governance of a democratic country. This principle corroborates fairness,
impartiality and uprightness in the workings of a government. Although it is not
followed in its strict sense yet, most of the democratic countries have adopted its
diluted version under their respective constitutions.

The separation of powers is based on the principle of trias politica. The Doctrine
of Separation of Power is the forerunner to all the constitutions of the world,
which came into existence since the days of the “Magna Carta”. Though
Montesquieu was under the erroneous impression that the foundations of the
British constitution lay in the principle of Separation of Power, it found its genesis
in the American Constitution.
 232

• The U.S. Constitution provides checks and balances for the U.S.
government through the separation of powers between its three branches:
the legislative branch, the executive branch, and the judicial branch. The
Constitution gave specific abilities to each one of these three branches to
ensure that no one section of the government could obtain excessive
unchecked power.
• Checks and balances are practiced by the U.S. government in the
following ways. First, the legislative branch is the part of the government
that makes laws, but the executive branch gives veto power to the
president, allowing the president to keep the legislative branch in check.
In addition, the judicial branch, the part of the government that enforces
the laws put into effect by the legislative branch, can deem certain laws
unconstitutional making them void.
• Moreover, while the president has veto power, the legislative branch can
overturn a president's veto with a two-thirds "supermajority" vote by both
houses of Congress. This ensures that the president cannot use his power
for personal gain. The executive branch can also declare executive orders,
effectively proclaiming how certain laws should be enforced, but the
judicial branch can deem these orders to be unconstitutional.

However, executive orders are often declared for the benefit of the country and
are rarely considered unconstitutional.

Position in USA

• The principle of "Separation of Powers is one of the most important

features of the American Constitution
• The Constitution clearly states that all legislative, executive and judicial
powers are vested m the Congress, the President and the Supreme Court
respectively.
• There is no other Constitution in which the demarcation of the three wings
of administration is so clear In India, for example, the entire legislative
power of the Union is vested in the Parliament.
• but the Parliament consists of the President and the two Houses This shows
that the executive has been associated with the legislature a very active
manner Similarly, in England, Parliament is sovereign in every respect and
the executive is subordinate to it
• However, in the United States, catch of the three wings is separate and
distinct without being dependent upon the other
• Itis said that fathers of the American Constitution were deeply impressed
by the theory of Separation of Powers s proposed by Montesquieu.
 233

• In their attempt you make the three wings as separate as possible, they have
made each one of the independent of each other.
• The President, for example, has a fixed the Congress.
• The tenure and is not responsible to the Congress The Congress is
independent of the President since it cannot be prorogued or dissolved by
him
• Similarly, the federal judiciary is also independent of both the Executive
and legislature.
• No judge of the Supreme Court can be removed except by Very difficult
procedure of impeachment.

• Montesquieu idea about separation of powers and the fact that the new
Constitution adopted was based on separation of powers.

• The system of checks and balances created by the framers and ensures that
Congress cannot 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.
• 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.
 234

In brief we can say that the condition in US by the words of Corwin, “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 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;

1. 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;
2. 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;
3. Government ministers are member of the executive who exercise a
legislative function not only in Parliament but also in delegate
legislation;
4. In addition to exercise the judicial function, courts legislate in the
sense that they develop principles of the common law;
5. Magistrates exercise administrative as well as judicial functions in that
they grant licenses.
however, it is the position of Lord Chancellor which is most commonly cited 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.
 235

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, “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 Article 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,” 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 Supreme Court 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 Supreme Court 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 exercises judicial powers in cases
of breach of its privileges such as impeachment of the President under Article 61
and removal of judges. The legislative body has the punitive powers under
Article 105(3).
 236

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 judgments 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. Mukherjee, 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 is known as the
champions of the doctrine of separation of powers along with France. 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 judgments given by the
Supreme Court.
 237

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 cannot 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 fulfil 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
cannot 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.

In India, there are three distinct activities in the Government through which the
will of the people are expressed. The legislative organ of the state makes
laws, the executive forces them and the judiciary applies them to the
specific cases arising out of the breach of law.

Each organ while performing its activities tends to interfere in the sphere of
working of another functionary because a strict demarcation of functions is not
 238

possible in their dealings with the general public. Thus, even when acting in
ambit of their own power, overlapping functions tend to appear amongst these
organs.

The question which is important here is that what should be the relation among
these three organs of the state, i.e. whether there should be complete separation
of powers or there should be coordination among them.

Constitutional Position

Separation of Powers

The Constitution of India embraces the idea of separation of powers in an

implied manner. Despite there being no express provision recognizing the
doctrine of separation of powers in its absolute form, the Constitution does
make the provisions for a reasonable separation of functions and powers
between the three organs of Government.

By looking into the various provisions of the Constitution, it is evident that the
Constitution intends that the powers of legislation shall be exercised exclusively
by the legislature.

Similarly, the judicial powers can be said to vest with the judiciary. The
judiciary is independent in its field and there can be no interference with its
judicial functions either by the Executive or by the Legislature. Also, the
executive powers of the Union and the State are vested in the President and the
Governor respectively.

The Constitution of India lays down a functional separation of the organs of the
State in the following manner:

• Article 50: State shall take steps to separate the judiciary from the
executive. This is for the purpose of ensuring the independence of
judiciary.
• Article 122 and 212: validity of proceedings in Parliament and the
Legislatures cannot be called into question in any Court. This ensures the
separation and immunity of the legislatures from judicial intervention on
the allegation of procedural irregularity.
• Judicial conduct of a judge of the Supreme Court and the High Courts’
cannot be discussed in the Parliament and the State Legislature, according
to Article 121 and 211 of the Constitution.
 239

• Articles 53 and 154 respectively, provide that the executive power of the
Union and the State shall be vested with the President and the Governor
and they enjoy immunity from civil and criminal liability.
• Article 361: the President or the Governor shall not be answerable to any
court for the exercise and performance of the powers and duties of his
office.

Functional overlap

• The legislature besides exercising law-making powers exercises judicial

powers in cases of breach of its privilege, impeachment of the President
and the removal of the judges.
• The executive may further affect the functioning of the judiciary by
making appointments to the office of Chief Justice and other judges.
• Legislature exercising judicial powers in the case of amending a law
declared ultra vires by the Court and revalidating it.
• While discharging the function of disqualifying its members and
impeachment of the judges, the legislature discharges the functions of the
judiciary.
• Legislature can impose punishment for exceeding freedom of speech in
the Parliament; this comes under the powers and privileges of the
parliament. But while exercising such power it is always necessary that it
should be in conformity with due process.
• The heads of each governmental ministry is a member of the legislature,
thus making the executive an integral part of the legislature.
• The council of ministers on whose advice the President and the Governor
acts are elected members of the legislature.
• Legislative power that is being vested with the legislature in certain
circumstances can be exercised by the executive. If the President or the
Governor, when the legislature or is not in session and is satisfied that
circumstances exist that necessitate immediate action may promulgate
ordinance which has the same force of the Act made by the Parliament or
the State legislature.
• The Constitution permits, through Article 118 and Article 208, the
Legislature at the Centre and in the States respectively, the authority to
make rules for regulating their respective procedure and conduct of
business subject to the provisions of this Constitution. The executive also
exercises law making power under delegated legislation.
• The tribunals and other quasi-judicial bodies which are a part of the
executive also discharge judicial functions. Administrative tribunals
which are a part of the executive also discharge judicial functions.
• Higher administrative tribunals should always have a member of the
judiciary. The higher judiciary is conferred with the power of supervising
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the functioning of subordinate courts. It also acts as a legislature while

making laws regulating its conduct and rules regarding disposal of cases.

Besides the functional overlapping, the Indian system also lacks the separation
of personnel amongst the three departments.

Applying the doctrines of constitutional limitation and trust in the Indian

scenario, a system is created where none of the organs can usurp the functions
or powers which are assigned to another organ by express or necessary
provision, neither can they divest themselves of essential functions which
belong to them as under the Constitution.

Further, the Constitution of India expressly provides for a system of checks and
balances in order to prevent the arbitrary or capricious use of power derived
from the said supreme document. Though such a system appears dilatory of the
doctrine of separation of powers, it is essential in order to enable the just and
equitable functioning of such a constitutional system.

By giving such powers, a mechanism for the control over the exercise of
constitutional powers by the respective organs is established. This clearly
indicates that the Indian Constitution in its plan does not provide for a strict
separation of powers.

Instead, it creates a system consisting of the three organs of Government and

confers upon them both exclusive and overlapping powers and functions. Thus,
there is no absolute separation of functions between the three organs of
Government.

Parliament sovereignty
• The sovereignty or supremacy of Parliament is the domain characteristic
of the United Kingdom constitution.
• The concept of parliament sovereignty was emerged as a result of the
struggle between the king and the parliament, The bill of 1689 established
the supremacy of parliament over the crown this concept was called the
constitutional monarch’ that is the monarch is only a symbol.
• Under the sovereignty there are two main authorities named legal and
political sovereignty.
• Parliament can legislate in any matter where there are no limitations
which mean that the courts cannot declare it as null and void. In the past
Queen was the main legislative authority and was able to pass any law.
This was known as the Queen in Parliament.
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• And also, the concept that the parliament does not misuse its powers as a
result of the conventions, but there is no hard and fast rule stating in the
positive. Consequently, it is possible that the legislature might overlook
this fact and use its powers in an unauthorised manner. Though this might
be probable, its presumed that the parliament would not do so basically
owing to the existence of the conventions
• The statutes created by the legislature is said to be non- justifiable as they
cannot be challenged in courts which was established in pickin v British
Railways Broad. Further aspects of this doctrine is that the parliament
cannot bind its successors as it was stated by Maugham LJ in Ellen street
Estates v The minister of health,
• Parliament may make any law that it wishes but independence of the
judiciary is presented by Constitution Reform Act 2005, separation of
powers should be exercised to separate powers and Rule of Law provides
that no rule is above the law and that everyone must act according to the
law.
• The case of Queen v Liyanage and the others can be taken as a
hypothetical example to illustrate the Parliaments unlimited legislative
powers. This case originated from Ceylon, whereby a group of
individuals – identified as Liyanage and the others, planned to overthrow
the government headed by the monarchy. This fell into the ears of the
government which led to their arrest. Thus, the government legislated
retrospectively with the intention of convicting them. Subsequently, after
their conviction, an appeal was made to the Privy Council who in turn
acquitted them as they held the laws created by the Parliament to be null
and void because the situation was such that the Ceylon government
cannot legislate retrospectively.
• The important point to notice is that, had the same circumstances arisen
in England, amendments or even further legislation made by the
Parliament would be legal in view of the unlimited nature of
Parliamentary sovereignty. Yet the Liyanage decision is a good example
of Parliamentary use of its powers in an unacceptable manner which
violates the fundamental principles of law. Such an exercise is perfectly
legal in England though declared unconstitutional in Ceylon.
However the United Kingdom governments response was that the police will
continue to use their powers under section 44 which allowed them to stop and
search people under reasonable suspection of terrorism and further that these
powers will be used under special occasions under public gathering, in crowded
places on specific operation.
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It is evident by considering the above scenario that the United Kingdom

government is not bound by the European court of justice or any third party
though the European court of justice was held to be a limitation on sovereignty
in reality therefore parliament sovereignty prevails.
In Burham oil V lord advocate the company sought compensation from the
government for the destruction of certain oil installations during the war period.
House of lords held that the company was entitled to be compensated. But the
effect of the decision in burmah oil was subsequently nullified by the passage of
war damage act 1965, which had been promised by the government if it was
defeated in the courts, abolished the rights at common law compensation in
respect of damage to or the destruction of property in the name of crown during
war time. This episode demonstrates the ease with which an inconvenient
judicial decision can overcome by a legislatively supreme parliament. Therefore
it is evident that the doctrine of parliament sovereignty can be used in an
oppressive or a tyrannical way.
AV Dicey’s Definition Of Parliamentary Sovereignty
• Dicey provided an orthodox approach. Parliamentary sovereignty is
the idea that Parliament are the supreme law makers who can legislate at
will and that no one is above Parliament.
• A V. Dicey’s traditional definition of parliamentary sovereignty cast
Parliament as the supreme legislative force in the British constitution.
The verdict was given in 1885, prior to many of the pressing
constitutional changes of the twentieth century. His definition had three
aspects.
• First, Parliament is the supreme law-maker, entitled to formulate and pass
any law that it wishes. Second, the supremacy of legislation means that
no other constitutional body, including the courts, can question it. Third,
no Parliament is able to bind its successors or alternatively been bound by
its predecessors.
• The concept of Parliament being the sovereign law maker derived from
the constitutional theorist, A.V Dicey, in his 10th edition of the book ‘An
introduction to the Study of the Law of the Constitution’.
• In this he defines Parliamentary Sovereignty as: The parliament has the
right to make and unmake any law whatsoever; and, also that no person
or body is recognised by the law of England as having a right to override
or set aside the legislation of Parliament.
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Dicey’s Definition –
1) Parliament has unlimited legislative powers
2)The courts cannot strike down legislation
3) Parliament cannot bind its successors.
Dicey’s perception of Parliamentary Sovereignty can be articulated in three
distinct parts:

1)Firstly, that Parliament can legislate on any subject matter.

This means it has the right to make and unmake any laws, whatsoever; alter
constitutional rules; as well as the right to create retrospective legislation.
2)Dicey’s second part of this doctrine was that nobody, including the courts of
law, could question the validity of an Act of Parliament.
3)The third part to Dicey’s definition states that ‘Parliament cannot be bound by
its predecessor, nor by its successor. Parliament is not bound by previous
parliaments, thus cannot bind future ones. Binding future parliaments would
amount to a new constitutional role – an entrenchment – which cannot happen
in constitution due to Parliament’s sovereignty, and the rule that it cannot bind
its successors.
In Jackson v Attorney General [2006) definition that Dicey gave was becoming
no longer accurate. This was particularly illustrated as the case highlighted that
the process of illegalising hunting had resulted in extending the life of
Parliament which evidently is illegal and exhibited that Dicey’s doctrine was
becoming inaccurate. The 1911 and 1949 Act was viewed as a great danger to
Parliament as theoretically it allowed the Commons to pass any law they
wished.
A key discussion in the judgments of the Jackson case was the decay of
Parliamentary Sovereignty. Lord Hope gives reason that the dissolving of its
sovereignty is due to its own enacted measures. The reasoning given for this
was due to the 1911 and 1949 Act allowing the House of Commons to enact
legislation without the approval of the House of Lords. Therefore, this was seen
as limiting and undermining the sovereignty of parliament as another body held
legislative power.
This also demonstrated that Dicey’s definition is no longer accurate as he states
that no one has the right to override or set aside the legislation of Parliament.
But the two Acts reject Dicey’s idea that Parliament are the only legislative
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powers. It was further argued that these Acts allowed the House of Commons
to potentially have the power to enact any legislation and to make any changes
to the constitution.
Hence In theory Parliament has total power. It is sovereign. This he felt was
based on four factors: first, that parliament has the competence to pass any law
on any subject; second, that the laws established by parliament can control any
person in any location; third; that no laws can bind successive parliaments; and
fourth, that the courts do not have the jurisdiction to challenge the decisions of
parliament.
The Bill of Rights that followed in 1689 subordinated the monarchy and the
judiciary to Parliament’s supreme law-making power. Parliament can even go
so far as to pass laws with retrospective force, as it did with the War Damage
Act 1965 to deny compensation to an oil company whose installations had been
damaged during the Second World War
In the recent landmark case of R (Jackson) v AG, Parliament’s ability to use the
Parliament Act 1911 to amend the Parliament Act 1949 was questioned in the
light of the controversial Hunting Act of 2004. This would have represented an
existential challenge to parliamentary supremacy. However, the House of Lords
concluded that in fact there were no limits to the type of laws that Parliament
could pass using the Parliament Acts, except where Parliament had limited itself
by limitations in the legislation.
It may be argued that the trend towards devolution does in fact serve to
undermine Parliament’s supreme position. However, it is perhaps truer to say
that devolution limits Parliament’s jurisdiction rather than its authority. The
most powerful devolved body, the Scottish Parliament, has carved out powers
over many areas including health policy and criminal justice, but can scarcely
be regarded as a ‘rival’ to a Parliament whose authority delegated those powers
in the first place.In the light of the recent independence referendum the Scottish
Parliament will expand its remit further, but will not be able to overrule
Westminster where the UK Parliament retains jurisdiction.
Dicey's views on Parliamentary Supremacy
• By this he meant that Parliament had and should have the right to pass
any law that it wished to pass. His reason for believing this was, in
essence, that laws which passed through Parliament were subject to
intense scrutiny and this intense scrutiny would ensure that only good
laws would make it through Parliament.
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• In contrast, he viewed the Constitutional Supremacy approach to be less

satisfactory as it could and did often result in bad laws which were either
fixed or voided by the courts in obscure (i.e. hard to comprehend)
judgments.
Dicey's totally re-written Introduction to the eighth edition of his Law of the
Constitution (1914) dealt with what was a rather troubling development
in British constitutional history. The Government in power in 1911 had forced
through an act titled The Parliament Act, 1911. This act effectively stripped
the House of Lords of the ability to block legislation which had been passed by
the House of Commons.
The effect of this change was to greatly increase the House of Commons' share
of the sovereignty which, in the British system, is shared between the House of
Commons, the House of Lords and the King. Since Dicey's reasons for arguing
the superiority of a judge-made constitutional system (e.g. the British system)
over a written constitutional system (e.g. the American or French systems)
hinged, in part, on the intense scrutiny which a bill would receive while passing
through both houses, anything which weakened the ability of either house to
subject a bill to intense scrutiny was a cause of concern to Dicey.
RULE OF LAW -A. V DICEY
The term Rule of law is derived from the French phrase la principle de
legalite which means the principle of legality. Rule of law as proposed by Dicey
is the supremacy of law as opposed to arbitrariness. Thus, the rule of law is a
check on the arbitrary powers by making the law supreme. It is the law which
should be supreme and not the arbitrary decisions made by an Individual. Thus,
the rule of law establishes the law as supreme.
Definition of Rule of Law
• According to Edward Coke, “Rule of Law means:
A) Absence of arbitrary power on the part of the Government.
B) No man is punishable or can be made to suffer in body or good except for a
distinct breach of law established in the ordinary legal manner before the
ordinary courts of the land. Definition of Rule of Law (Contd.)
• As per Prof. A.V.Dicey, “the rule of law means the absolute supremacy or
predominance of the regular law as opposed to the influence of arbitrary power
and excludes the existence of arbitrariness or even of wide discretionary
authority on the part of the government.” (The Law of the Constitution) • Dicey
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regarded rule of law as the bedrock of the British Legal System: ‘this doctrine is
accepted in the constitutions of U.S.A. and India.
Dicey’s Rule of Law According to Prof. Dicey, rules of law contains three
principles or it has three meanings as stated below:
1. Supremacy of Law : The First meaning of the Rule of Law is that '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
ordinary courts of the land
2. Equality before Law : the Second meaning of the Rule of Law is no man is
above law
3. Predominance of Legal Spirit or the Third meaning of the Rule of Law is the
general principles of the constitution are the result of juridical decisions
determining file rights of private persons in particular cases brought before the
Court.
The Constitution is the consequence of the rights of the individuals and not the
source of their rights. The Courts protect the rights of the individuals and ensure
that the same is not violated in one way or the other. According to Dicey Rights
would be more adequately secured if they are enforceable in courts rather than
just written in a constitution. Thus, Dicey has emphasised on the independent
and impartial judiciary.
Dicey’s Rule of Law • The Rule of Law, in its most basic form, is the principle
that no one is above the law. The rule follows logically from the idea that truth,
and therefore law, is based upon fundamental principles which can be
discovered, but which cannot be created through an act of will.
Analysis of Dicey’s Rule of Law Dicey’s concept of Rule of Law had its
advantages and disadvantages which are discussed as follows:
• Rule of Law imposed and helped in imbibing a sense of restraint on
administration. The government was bound to work within the legal framework.
Further, by stating that the law is supreme, he made every law made by the
legislature supreme, thus, promoting parliamentary supremacy. There cannot be
self-conferment of power as even an ordinary law is supreme. All laws, public
or private, are being administered by the same set of independent and impartial
judiciary. This ensures adequate check on the other two organs.
• Nonetheless, on the other hand, Dicey completely misunderstood the real
nature of the French droit administrative. He thought that this system was
designed to protect officials, but the later studies revealed that in certain
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respects it was more effective in controlling the administration than the

common law system. The reality is that French Conseil d’ Etatis widely admired
and has served as model for other countries as well as for court of justice for
European communities. He also did not realise the need for codification of laws
which could lead to more discretion, thus hampering Rule of Law.
Rule of Law and Indian Constitution
The Constitution of India provides that the constitution shall be the supreme
power in the land and the legislative and the executive derive their authority
from the constitution. Any law that is made by the legislative has to be in
conformity with the Constitute failing which it will be declared invalid, this is
provided for under Article 13 (1).
• Article 21 provides a further check against arbitrary executive action by
stating that no person shall be deprived of his life or liberty except in
accordance with the procedure established by law.
• Article 14 ensures that all citizens are equal and that no person shall be
discriminated on the basis of sex, religion, race or place of birth, finally it
ensures that there is separation of power between the three wings of the
government and the executive and the legislature have no influence on the
judiciary. By these methods, the constitution fulfils all the requirements of
Dicey’s theory to be recognized as a country following the Rule of Law.

Rule of Law and Indian Judiciary

• The Indian Judiciary has played an instrumental role in shaping Rule of Law
in India. By adopting a positive approach and dynamically interpreting the
constitutional provisions, the courts have ensured that the Rule of Law and
respect for citizens’ rights do not remain only on paper but it is also avalaible in
the society.
• In Bachhan Singh v. State of Punjab, it was held that the Rule of Law has
three basic and fundamental assumptions. They are- 1) There must be
independent judiciary to protect the citizens against excesses of executive and
legislative power. 2) Even in the hands of the democratically elected legislature,
there should not be unfettered legislative power; and Law making must be
essentially in the hands of a democratically elected legislature.
Features
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Certainty of law – the rule of law made sure there is a certainty of law and it is
not being changed constantly or being misused by a particular class with
power.
Supremacy of law – the rule of law emphasized on the supremacy of law as
Dicey believed law is the supreme ruler and everyone must be governed by the
same laws and principles.
Equality before law – not only supremacy of law he also believed in equality
before law as until and unless everyone is equal before law there could be no
supremacy of law and people with power can easily get away by using the
provisions for their benefits.
No retrospective effect – law must not be passed to take effect from a date in
past, an act which was not punishable in the past must not be made punishable
on a future date after it has been committed.
Advantages of rule of law
Enhances individual rights – the principle focuses primarily on the equality
before law and therefore puts everyone on an equal stratum so that people not
only get access to courts against the people in power but also get fair and just
trials. It bars the use of power by the authority so that no undue influence is
done and an equal opportunity and platform is provided to everyone in order to
get justice and stand for their rights.
Protects and promotes freedom of judiciary – it ensures that all the functions are
performed smoothly and without any interference from any source whether
internal or external so that fairness and equality is maintained at all the levels
and people with power are not using it to their advantage. This maintains the
individuality and freedom of judiciary which is of utmost need in an
independent country as without judicial freedom the people will not be truly
free as there would a constant misuse of power otherwise and majority of
people will be under a constant threat from people with power.
Preserves the constitution – the rule of law ensures the supremacy of the
constitution as constitution is ultimately the law of the state and the ‘rule of law’
ensures certainty of law in the state in order ensure stability and consistency in
the laws and to make sure that they are not changed very frequently or for
benefit of an individual or a group of people only.
Prevents arbitrariness – the rule of law prevents the arbitrariness on the part of
government officials and employees and also makes sure people are well aware
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of their rights and liberties and no interference in done with the same and a
quality of life is maintained.
Disadvantages of rule of law
Discretionary powers – the use of discretionary powers by the people with
authority is completely against the rule of law as it gives them an upper hand
over others and they can use the same to their benefits and if misused this
discretionary power can lead to widespread discontent which would result into a
further rift between the different sections of the society.
Rights do not emanate from the judicial decisions only – Dicey looked at laws
from a single side and believed fundamental rights and liberties emanate from
the judicial decisions only has ignored the rights based on common law.
Restrictions on jurisdiction – a person can easily escape the penalty by escaping
the jurisdiction of the law and unless the person is somehow found and
apprehended, as well as extradited back to where the law had jurisdiction over
him, the person will escape justice.
Relevance of Dicey’s rule in today’s era
Dicey’s rule of law is commonly applicable in all the democratic countries.
Dicey’s rule has a lot of significance in today’s era. The features of this rules
help in building a better legal system as well as a better society. Legal system
holds intact all the parts of the country. A country without a proper legal system
is not bound to prosper. Proper working of a country’s lawful structure is
directly propionate to development of that country.
We will take into consideration the relevance of Dicey’s rule in today’s era by
taking example of India.
India is a country with one of with a very high degree of crime. It is in the list of
top 5 countries with highest crime rate. With each developing year, the crimes
in India are also increasing and this calls out for the need of efficient legal
system. Hence proper working of the judiciary is required reduce the crimes by
punishing the wrongdoer.
The Judicial system of India is given proper freedom to punish every wrongdoer
irrespective of his position, caste, and creed equally. India courts aim at treating
a highest positioned government official in the same manner how a lay man is
treated in the court. No interference, external or internal is made in how
judiciary is doing their work. This kind of system helps reducing crimes in the
country.
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Next reason why it is relevant is that, Dicey’s rule accelerates equality in

society. Equality is the basic feature of democracy. Due to difference in caste,
creed, religion, gender in the country equality is needed to keep peace and
harmony in the society. This principle insures every person gets equal rights and
is treated in the same manner. A person in power or a common man is given
equal rights and kind of discrimination is done while treating any of them. This
abolishes the chances of misuse of power. When a citizen’s rights and freedom
in a country is guaranteed by providing them equal rights their patriotism
towards their nation goes on increasing at a tremendous rate.
Another advantage that it serves which makes significant in today’s era is that it
gives Supremacy of law over judiciary. This means that law is above the one
who is governing it. Law inscribed in constitution is king of kings. This
conserves the constitution and preserves the origins of the country.
Modernization and globalization tend to stutter the roots of society. With wave
of liberalization everything in the country kept on changing from traditions to
professions. Due to this it is important to keep the constitution unchanged and
the legal system intact and undisturbed. When the laws are not ever-changing
but consistent, governing the legal system gets easier. Supervising the crimes,
society, policies and as a country as whole gets stress-free when the basic
governing system is steady.
Looking at the advantages of adopting Dicey’s rule in India most of the
democratic countries have chosen this rule of law. Due to this reason I would
definitely suggest that though there are some disadvantages of Dicey’s rule but
its advantages overlook all those demerits. Moreover, every phenomenon has
pros and cons and as per this research it is surely significant to adopt this rule of
law.
Role of Indian Judiciary
There are a plethora of cases where the concept of rule of law was discussed
and came into light. Some of the cases are as follows:

ADM Jabalpur v. Shivkant Shukla [5]

This case is also known as Habeas Corpus case. It is one of the most important
case when comes to rule of law. The question that was raised before the honble
court was that whether there was any rule of law in India apart from Article 21
of the Indian Constitution. It was in context relating to the proclamation of
emergency where the enforcement of Articles 14, 21 and 22 were suspended.

Som Raj v. State of Haryana [6]

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In this case it was held that the absence of arbitrary power is the postulate of
rule of law upon which the whole constitutional edifice is dependent.

Union of India v. Raghubir Singh [7]

In this case it was held by the court that a considerable degree that governs the
lives of the people and regulates the State function flows from the decision of
the superior courts.

Chief Settlement Commissioner, Punjab v. Om Prakash[8]

In this case, Supreme Court observed In our constitutional system, the central
and most characteristic feature is the concept of rule of law which means, in the
present context, the authority of law courts to test all administrative action by
the standard of legality. The administrative or executive action that does not
meet the standard will be set aside if the aggrieved person brings the matter into
notice.

Keshvananda Bharti v. State of Kerela

In this case, the Supreme Court enunciated the concept of rule of law as one of
the most important aspects of doctrine of basic structure.

Maneka Gandhi v. Union of India [10]

In this case Supreme Court declared that Article 14 strikes against arbitrariness.

Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil [11]

In this case, the ration laid down was If the rule of law has to be preserved as
the essence of the democracy of which purity of elections is a necessary
concomitant, it is the duty of the courts to appreciate the evidence and construe
the law in a manner which would sub serve this higher purpose and not even
imperceptibly facilitate acceptance, much less affirmance, of the falling
electoral standards. For democracy to survive, rule of law must prevail, and it is
necessary that the best available men should be chosen as people's
representatives for proper governance of the country. This can be best achieved
through men of high moral and ethical values who win the elections on a
positive vote obtained on their own merit and not by the negative vote of
process of elimination based on comparative demerits of the candidates.

Secretary, State of Karnataka and Ors. v. Umadevi [12]

A Constitution Bench of this Court has laid down the law in the following
terms: Thus, it is clear that adherence to the rule of equality in public
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employment is a basic feature of our Constitution and since the rule of law is
the core of our Constitution, a court would certainly be disabled from passing an
order upholding a violation of Article 14 or in ordering the overlooking of the
need to comply with the requirements of Article 14 read with Article 16 of the
Constitution.

LAW MAKING PROCESS IN USA

Law-making is an important function of the Congress. According to Griffiths,
both the British and Americans strive to provide thorough discussion and
consideration. Both are determined that minority shall have a fair opportunity to
be heard, to criticise and to offer alternatives. Both offer opportunity to criticise
the administration and call it to account

Introduction of Bill

• In the United States, there are no Government bills as they are in Britain.
The Government has no seat in the Congress and all bills, public or
private, are sponsored by the members of the Congress.
• The President or any member of his Cabinet cannot introduce a bill
directly as they are neither the Members of a House nor they sit in either
of the two Houses. If the Government wishes to introduce it, it may
announce that the administration desires to have the bill passed.
• Majority of the bills are introduced on behalf of the administration.
Butsome of them are inspired by pressure groups or private individuals.
Anyway, whatever may be the Source of initiative; the bills are
introduced by the members of the Congress.
• The procedure of introducing the bill is simple. The Congressman merely
writes his name on the bill and drops it into a box known as the "hopper"
on the clerk's desk. No limit is imposed on the number of bills a member
may introduce.
• The bills introduced remain "alive" until disposed off or until the end of
the existing Congress
• The bills and resolutions put into the box are Sorted out and given serial
numbers becoming indicating the House of origin and nature of the bill or
resolution
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• There is not much of difference between the bill and joint resolution
except that the latter is intended for temporary situations. Otherwise, a
joint resolution which is similar to a bill undergoes the same procedure
and becomes effective under the same conditions.
• A joint resolution is also submitted to the President for signature. After
the bills bave been sorted out and numbered, they are printed in the
journal and the congressional record

The Committee Stage

• When a Committee receives the bill, it puts it a preliminary examination

to find out whether it has any merit or not. If the Committee finds that the
bill is not worthy of consideration, it takes no further action and puts the
bill back on the Committee's files.
• The bill is merely "pigeon holed" that is, pushed into the discard
compartment of the chairman's desk. That is what happens to most of the
bills which a Committee receives.
• The bills which the Committee thinks worthy of consideration are studied
in detail, and relevant information is sought from all the sources

• On the basis of information gathered from the official file, Congress

library, heads of departments investigations and public hearings and the
opinion received from the Congressmen and pressure groups, the
Committee arrived at its verdict. W meets in executive (closed) session
and may take one of the following decisions:

(1) It may recommend the bill back to the ti just as it stands with a
recommendation that be passed
(2) It may amend the bill and recommend that it be passed with the proposed
amendments.
(3) It may entirely change the original bill and recommend a new one in its
place.

(4) It may reject the bill and report that the bil need not be passed
 254

(5) It may decide not to make any report at all la other words, it may "pigeon
hole the bill

If the Committee fails to report the bill, the House may "discharge" the
Committee-that call upon the Committee to submit the bill. The report is usually
made by the Chairman of the Committee or someone designated by him. The
report is likely to run into only a few printed pages but on important matters, it
may be exhaustive and extensive report. It is accompanied by printed copies of
the hearings, which may run into several hundred or even several thousand
pages. Minority reports also may be filed.

The Calendars

• When the Committee makes its report, the bill is placed on one of the
three calendars. Bills raising revenue, appropriating money or property
directly or indirectly are placed on the Union Calendar, Bills which are
public but not fiscal in nature are placed on the House Calendar. All bills
of a private character are assigned to the Private Calendar.
• There are two other calendars Consent Calendar and Discharged
Calendar. The bills which are non-controversial and have every chance of
being passed by the House may be transferred from the Union or House
Calendar and placed on Consent Calendar if a request is filed Bills
withdrawn from the Committee by petition are placed on the Discharge
Calendar.
• Above we have said that if a Committee does not report buck a bill, the
House may discharge the Committee. that is call up a bill from it. Such
bills are placed on Discharge Calendar.

Consideration on the Floor

• According to the rules of the House, the bills are taken up for
consideration by the House in their Calendar order, but numerous
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exceptions are made action may be secured on the more important

measures.
• Several devices are used to select bills for consideration out of Calendar
order.

(1) A motion may be made to suspend the rules which must receive a two-thirds
vote

(2) Some Committees may bring up privileged matters especially revenue and
appropriation bills.

(1) Bill may be brought for immediate consideration by unanimous consent

from the Consent Calendar

(3) On Wednesdays except during the last two weeks of a session, the
Committees may call up for passage of some of their own bills, otherwise
unprivileged 16) The members may secure unanimous consent for immediate
consideration of a bill

• The Calendars are very much crowded and only the important bills are
selected out of their sequence by one of the above devices. Hundreds of
bills die on the Calendars' in every Congress.

• If the bill is referred to the Committee of the Whole, the bill when
reported back is put before the House by the Speaker for accepting or
rejecting the recommendations made by the Committee of the Whole.
The House accepts the bill as reported by the Committee.

• Thereafter the Speaker states, "The question is on the Engrossment and

third reading of the bill as amended." The third reading is merely formal.
As a matter of fact, it is not read a third time, except by title, unless some
member requests that it be read in full. The Speaker then states, "The
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question is upon the final passage of the bill". The votes are taken and if
the bill is passed, it is signed by the Speaker and transmitted to the Senate
for concurrence.

Methods of Voting

Four methods of voting are used by the House (1) The first is Voice Vote
method. This is the usual method but if this is indecisive, or if one-fifth of a
quorum requests, another method may be used. (2) The second is Division
method wherein the members are asked to stand and the Speaker counts them
(3) The third is Teller method wherein the members file past a given point to be
counted for or against a bill (4) The fourth method is Roll-Call method wherein
the clerk of the House takes the roll-call, each member saying ayes' or 'nays and
the clerk records the 'ayes' or 'nays". Naturally, the last method takes a great
amount of House time as cuch ramie is called and the vote is recorded.

Consideration in the Senate

• After the bill is passed by the House, it goes to the Senate for
consideration. In the Senate also, the bill undergoes all those stages which
it passed through in the House of Representatives. The President of the
Senate refers it to the appropriate Committee.
• The Committee holds hearing on the bill, which may be more extensive
or less extensive than those held by the Committee of the first House. If
the bill 15 one which has the support of the Government, it may
conceivably have been introduced in both the Houses at the same time. In
that event, a Committee of each House may have held hearings, before
either House passes the bill.
• When it is passed by one of them, it thereafter carries the number given ta
it by that House and is substituted in the other House for the bill where
originally introduced. The House may hold additional hearings.

After the Committee has considered the bill. it is placed on the Senate Calendar
of bills. It may be noted that unlike the House of Representatives there is only
one Calendar of bills in the Senate, All the bills reported by the Committees are
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put on this Single Calendar. Since the size of the Senate is smaller and there is
only one Calendar, therefore the elaborate selective and restrictive devices
employed in Ute House of Representatives are not used in the Senate. The bills
that are not objected to, are taken up in the order listed in the Calendar. The bills
can be called up from the Calendar out of turn also.

Conference Committee

• If both the Houses pass identical versions of the same bill, it is enrolled'
on parchment paper signed and sent to the President. But if the Senate has
made amendments to it, the amendments are placed before the House and
the House may accept these amendments.
• But if the House does not accept the amendments, a member may request
for a Conference Committee. The Committee usually consists of three to
five, sometimes nine members, from each House.
• These members are appointed by the Presiding Officer of each House At
the Conference, only matters in disagreement are considered. In many
cases, the result of the Conference is a compromise. After compromise,
each set of Conference reports back to its House If both the Houses
accept the compromise, the bill is ready for the next step. If not, it goes
back to the Conference Committee for further consideration, The
Conference Committees, it is pointed out, have become a sort of third
House.
• They are criticised because proceedings are kept secret and bills ma be
re-written arbitrarily

President's Assent

• If and when the bill is passed by both the Houses i identical form, it is
signed by the Presiding Officers of the two Houses and sent to the
President of the United States. If it is signed by the President it becomes a
law. It also becomes a law if the President holds it for a period of ten
days, Sundays excepted, provided during this period of ten days. the
Congress continues in session. If the President turns the bill to the House
of its origin with a statement of his objections, which is called a veto
 258

message, and the Congress passes it again by a two thirds majority, it will
become a law on being passed for the second time. But if the Congress
adjourns before ten days have elapsed since the submission of the bill to
the President and the latter does not take any action over the bill, the bill
is killed. This is called the 'pocket-veto' of the President
• Once enacted and signed by the President, the bill becomes a law and
may be found in the statutes at large, of the United States for the
particular session. From time to time, statutes are codified in the Code of
the Laws of the United States of a general and permanent character,
commonly called "US Code".

The Budget

• The budget is the annual financial statement showing the expenditure and
income for the incoming fiscal year. It is prepared at the Bureau of the
Budget under the supervision of the Director. The Director is appointed
by the President for an indefinite term (without confirmation by the
Senate). After approval by the President, the budget is sent to the House
of Representatives. Without debate, the appropriations section of the
budget is referred to the Committee on Appropriations.
• The Committee on Appropriations refers the various groups of items to
several Committees for detailed study and public hearings. These sub-
committees which are organised on departmental lines, work on the
figures, and, whenever necessary, call in the various executive officials to
explain their respective needs.

Having passed the House, the various appropriation bills go to the Senate. There
also. they are referred to a Committee on Appropriations. The Senate
Committee examines the bills and may propose any changes in the amounts.
The Senate considers the reported bills. If the Senate has made changes, the
appropriations are sent back to the House for concurrence, failing which they
are referred to a Conference Committee made up of selected senators and
Representatives. The Conference Committee tries to adjust the items and gets
the appropriation bill into the Committee in such a shape that both the House
and the Senate can agree on every word of it.
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Comparison of the Law-Making Procedure in America and England

• The basic difference in the organization of the national legislature in

England and America has produced important differences in the law-
making procedure in the two countries. In the first place, it must be noted
that in Great Britain the legislative business of Parliament is conducted
under the guidance and leadership of the Cabinet. Majority of the hills are
introduced by the Ministers who have their seats in the Parliament.
• The Ministers see through the passage of their bills: On the other hand,
in America the Cabinet and the President are excluded from the Congress.
They do not introduce the hill nor do they take part in the debates.
• The bills referred to as administrative bills introduced by members of the
Congress in the words, in England, the Cabinet plays a great role in law
making while in America the Cabinet is the such role to play Secondly, in
America all bills are private members bills. but in England the public fills
are divided into Government bills and primary members bills.
• In America, there is no such thing as Government bills Thirdly, in
England a bill is referred to the Committee after the second reading. ve
after the House has approved its aims and objects, but America they are
referred to the Committee a the first reading. i.e. without the House
discussing its aims and objects In other words, in America the bill does
not come before the House before it referred to the Committee bat in
England the Huynie gets a chance to debate the aims and objects of the
bill before it is referred to the Committee

Fourthly, in America, the Committee may report back the bills to the House and
may pigeon hole them, but in England, the Committee has report back all the
bills

Fifthly, in America, the Senate has not greater powers than the British House of
Lords in respect of both the ordinary bills and money bills In case of
disagreement, if no compromise is reached at the Conference Committee, the
bill is killed
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Lastly, in England the King Queen has to accord his/her assent to the bills
passed by the Parliament. He or she is only a figure head. In America, the
President has the Absolute Veto and Pocket Veto power, as such he may delay
the passing of a bill

Thus, while both the British and Amerian systems strive to provide thorough
discussion, and e lair opportunity to the minorities to be heard. o criticise and to
offer alternative: to criticise the administration and call it an accursed, there a
marked differences in procedural methods. The rules of procedure and
precedents in both Home and Senate according to Griffiths "present a a maze
which even those of long standing membership often find it difficult to master
completely.

Law-making Procedure-UK

In the early stages of its history, it may be recalled, the House of Commons had
no power to make laws. It merely petitioned the Crown to make laws who then
framed and enacted laws at its own discretion based upon the petitions of the
House. Sometimes the laws made by the Crown turned out to be very different
from what had been asked for

This led to a demand by the House of Commons for a share in law-makıng.

Gradually the demand was yielded to until at last, by the fifteenth century, the
two Houses became full-fledged legislative bodies and developed a
Parliamentary procedure of law- making, giving each bill three readings,
referring it to a Committee, and voting it and sending it to the King for his
assent

Before we describe the existing procedure of law-making in England, we may

just refer to the various kinds of bills that appear before the House. Bills are
usually divided into public bills and private bills. Public bills are of general
application and pertain to the whole public and to the larger parts of the
kingdom.
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On the other hand, private bills are of local or private interest which concerns a
specific person, corporation, group or local area. In other words, they are not of
public concern. Public bills may be sub-divided into Government bills and
private members bills A Government bill is one which is introduced on behalf
of the Government by a Minister. A private member's bill is introduced by a
member of the House who is not a member of the Government Public bills may
be either money or non-money bills. First we shall describe the procedure of
public non-money bills.

Public Bills: (non-money bills)

The process of converting a public bill into an Act of Parliament is long and
intricate. It has to go through various stages before it can be enacted into a law.
The various stages through which every public bill has to cross may be
explained as under:

(1) Bill Drafting Before the Parliament bill comes in a fully drafted form. The
bill must be laid down in exact words and be complete in every respect. The
first step, therefore, in introducing bill is the drafting of the bill itself. If it is a
private member's bill, it is drafted by the member himself or with the help of
anyone whom he may employ for purpose it is a Government bill, it is prepared
by public draftsman in the office of the Parliament Counsel to the Treasury. The
Minister in whose province the bill falls first prepares a rough out showing the
main features of the project Then the Cabinet discusses the proposal and if it
accept th proposal, a memorandum is sent to the office of the Parliamentary
Counsel where the skilled draftsmeb work up the measure in details. The draft
bill comes back to the Cabinet which gives it a final look over and the bill is
ready to be carried to the Parliament

(ii) Introduction and First Reading. When the bill has been finally approved by
the Cabinet it is introduced by the Minister concerned. There are two methods
of introducing a bill either on a motion or on a written notice. Under the former
procedure, the Minister may ask for leave to introduce the bill The Minister
makes a speech explaining and defending the bill's contents. After debate over
the motion, the House votes whether to grant or withhold the desired
permission. Usually permission is granted because refusal would mean a defeat
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for the ministry. However, the practice of introducing a bill on motion has fallen
into disuse and the present method is to introduce it on written notice. Under
this method the introducer gives notice of his intention to bring a bill, which
notice appears on the order of the day". On the appointed day the Speaker calls
the name of the introducer to present his bill at the clerk's table. The clerk of the
House reads out the title of the bill. Sometimes only a "Dummy bill" is placed
on the table of the Clerk of the House. As soon as the clerk has read the title, the
introduction of the bill along with its his reading is over. It may be noted that in
the stage of introduction and first reading. there is no debate discussion. The bill
thereafter is printed and was its tum to be called up for the second reading

(iii) Second Reading: The third stage in the life of the bill is the second reading
stage on a day fixed in advance by an order of the House, the member-in-charge
of the bill moves that it be now read a second time". He explains the bill and its
necessity and defends it giving a long speech. Some member from the
opposition criticized and attacks it and moves that the second reading should not
be proceeded with or that this bill be read a second time this day six months.

(V) Report Stage: In the report stage, the House discusses the bill as reported by
the Committee. The amendments proposed by the Committee are debated and
alternative amendments offered. The bill is read clause wise, the report of the
Committee on every clause is taken up and if the Committee has proposed any
amendment to a clause that amendment is discussed. The members may propose
their own amendments. The report stage is a lengthy one as every clause is
discussed and voted. If the Government considers the bill of an urgent nature, it
may resort to motions for closure. Closure may take one of the following forms

(a) Simple Closure: Under this closure, the member may move the motion that
the question be now put". The Speaker may accept or refuse the motion if he
feels that any rule of the House has been violated or the opposition has not been
given a fair chance to express itself over the bill. If the Speaker accepts the
motion and if the motion is carried by not fewer than a hundred votes, the
debate is closed and the matter under discussion is voted upon

(b) Guillotine :This is a closure when the various parts of the bill are put to vote
on the expiry of the allotted time for those parts. This kind of closure involves
 263

allotting a certain amount of time to various parts of a measure or to its several

stages and taking votes at the appointed time even if the important aspects of the
bill have not been discussed

(c) Kangaroo Closure: Under this form of closure, the Speaker is empowered to
select those clauses and amendments which he thinks most appropriate for
discussion. The Speaker has the power to decide which amendments at the
report stage may be debated when several have been submitted to the same
clause. The practice of missing some amendments is called the Kangaroo
Closure since the Speaker leaps over some amendments Kangaroo may be used
separately or in conjunction with Guillotine.

(d) Third reading: When all the clauses of the bill have been voted upon in the
report stage, the hill enters the third reading stage. This is the final stage in the
House of Commons. At this stage, there again a general debate on the bill. The
idea that the bill having been approved in principle on the second reading,
having been liked into shape in detail on the Committee stage, the House should
lake one more look at the bill as amended before it finally gives its approval" At
this stage no amendments other than purely verbal ones are in order.

Procedure in the House of Lords

The procedure in the House of Lords is not materially different from that in the
Commons. All bills in the Lords are given first two readings, considered in the
Committee of the Whole or referred to a Standing Committee, reported back
with or without amendments, debated and then adopted or rejected. If the Lords
pass the bill in the form it emerged out of the Commons, it is sent to the King
for assent and on receiving the royal assent, it becomes an Act. If the Lords
make some amendments in the bill, the amendments have to be approved by the
House of Commons.

After the bill is passed by the Parliament ii sent for the royal assent. The King
may convey ha assent in person, but nowadays it is usually given y Lords
Commissioners who represent the King and declare and notify royal assent. On
 264

receiving towel assent, the bill becomes a law and is then published into the
statute book.

Private Members Bills

The procedure for private members bills is the same as that for the Government
bills with a slight difference in the method of introduction What actually
happens is that at an appointed hour, private members who desire to introduce
public bills are required to put their cards in a box at the clerk table. The clerk
then draws the lots and the member whose name is first drawn gets the
opportunity to introduce his bill on the first available Friday of the session: the
second member gets the next available Friday and so on till the opportunities
are exhausted Having had the good fortune to get his bill on the notice paper,
the member moves that it be read s first time and secure it a second reading. It
then goes to one of the Standing Committees and follows the same procedure as
other public bills.

The private members bill suffers from certain disadvantages. Firstly, the time
allotted to them is insufficient, ten days in the session. Secondly, the private
member lies under a heavy disadvantage in the drafting of the bill. Finally,
unless the Government supports the bill, there is little hope it being passed. "If a
member is lucky in his later and can introduce a bill which is generally popular
and which neither the Ministers nor any of his fellow members dislikes and if he
possesses the art of appeasing opposition, he may manage ad to steer his bill
through a Parliamentary session But few members can hope to run this gauntlet
successfully.

Legislative Procedure france

• The 1958 Constitution has made fundamental changes in the legislative

and budgetary procedure as it obtained earlier. The right to introduce the
 265

bills belongs to both the Government and the private members of the
House. All bills except the money bills can be introduced in either
House. The Government bills are first considered in the meeting of the
Council of Ministers and thereafter, these are sent to either House of
Parliament.

• A private member bill may not be introduced if the Government declares

its inadmissibility for its being outside the domain of law or contrary to a
delegation of authority granted by virtue of Article 38. If there is,
however, a disagreement between the Government and the President of
the Assembly on this issue of inadmissibility, the matter is referred to the
Constitutional Council, at the request of either party, which shall give its
opinion within eight days. The opinion of the Constitutional Council is
binding on both the parties.

• When the bill gets introduced in the House, it is referred to one of the
Standing Committees, which are six in number. The bill can also be
referred to a special Committee at the request of the Government or of
the Assembly considering it. The membership of a Special Committee
does not exceed thirty The Standing Committees, the number of which is
limited to six in each Assembly, are:
(i) Committee on Cultural, Family and Social Affairs;
(ii) Foreign Affairs Committee;
(iii) Committee on National Defence and Armed Forces;
(iv) Committee on Finance, Economic Affairs and Planning:
(v) Committee on Constitutions, Law-making and General Administration; and
(vi) Committee on Trade and Economic Production.

• The membership of the Standing Committees varies between 60 and 120.

The first and the last Committees consist of 120 members each, the third
and the fifth Referendum Committees consist of 90 members each,
whereas each of the second and fourth Committees consists of sixty
members each. The members of the Standing Committees are elected by
 266

the Parliamentary groups in proportion to their strength in the respective

Assemblies.

• Thus a group, which has twenty per cent members of the total
membership in the House, will elect twenty per cent members of the
Standing Committee, and likewise the other groups will elect. Thus, the
character of a Standing Committee is similar to the party composition in
the House. It is a sort of mini-Assembly. Each Committee elects its
President, three or four Vice Presidents and two to four Secretaries.

• An important point to be noted in the Committee system is the reduction

in the number of Committees. Under the Fourth Republic there were
nineteen Committees, each having forty-four members. Under the present
Constitution, the number has been reduced from nineteen to six but the
membership has been increased from forty-four to as many as one
hundred and twenty. According to Pickles, the purpose of the reduction is
two-fold to reduce the authority of Commissions, whose Presidents, when
the field of activity of Commissions roughly coincided with that of a
ministry, tended to become shadow Ministers, and also to prevent the
time-wasting process of submitting to several Commissions hills whose
scope is such as to interest more than one ministry. the main Commission
remaining responsible for the report, the others merely stating their
opinion.
• The Committee examines the bill refers to st in detail. The meetings of
the Commine are held in camera, but a minister can participate in the
meeting of any Committee. The Committee in summer any person to
know his views After deliberation and consideration, the Committee
prepares its report and submits it to the Assembly

• After the report of the Committee has been submitted to the Assembly in
which the bill originated, the minister pilots his bill, The Assembly first
debates the general principles of the bill, as presented by the Government
and the Commission's spokesman and thereafter discourses the bill article
by article. The members may propose amendments The Government may
object to the proposal of amendments on the ground that sich
amendments were not previously submitted to the relevant Committee.
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• The Government can also propose its own amendments or counter-

amendments During the debate over the bill, the Ministers and the
Presidents of the Committees may intervene at any moment. The
Deputies may rise on a point of order Ministers may be present in either
House and participate in debates. The debate may be open or organised".

• In the first, case, would be speakers notify the President, who chooses the
order in which they are called. In the second case, the total time allotted
to the debate and the share allotted to cach Parliamentary group (which is
proportional to its strength in the House) is rigidly worked out in
advance. The Deputies are not allowed to read their speeches. After the
debate over an article is over, it is put to vote. When all the articles have
been passed one by one, there is final voting on the amended text as a
whole. And this completes what is called the first reading. The bill then
goes to the other House where it goes through a similar process. If passed
by both the Houses in identical terms, it is transmitted to the President
who shull promilgate it within fifteen days following its transmission to
him. He may, however, before the expiry of this time limit, ask
Parliament to reconsider it. or certain of its articles. This reconsideration
may not be refused

It is clear from the procedure outlined in Article 45 to resolve deadlocks

between the two Houses that where the Government is interested in a bill it can
get the National Assembly override the Senate. In order to override the Senate,
the National Assembly requires only an ordinary majority vote on the bill This
makes the Senate a secondary House in matters of law-making

Organic Laws

The 1958 Constitution has provided for special kind of law called Organic
Laws. An organic law is one of two things, it is either one of the nineteen laws
which the Constitution provided for in order to complete a number of its
provisions, and which were promulgated as ordinances during the transitional
period when the Government had full powers, or else it is that provided for
 268

under Article 34 "to develop in detail and amplify the legislative reads as
follows:

law. Firstly, an organic: law must be tabled fortnight before it is debated;

secondly of disagreement between the two Houses the National Assembly can
override the Senate only by voting the organic bill by a majority of its tool
membership (In the case of ordinary bill only the can be promulgated only when
the Constitutional Council has declared that it is in conformity with the
Constitution Organic laws are constitutional laws which fill in the gaps of the
Constitution by way of supplementing or classifying it Some of these laws are
the ones dealing with the term of the President and his eligibility for being re-
elected the composition of the electoral college, method of election for the
National Assembly and Senate the status of members of judiciary composition
of the High Council of Judges, and the High Court, its operating rules and
procedure, composition of the Economic and Social Council and its rules of
procedure, organisation and procedure of the Executive Council of the
Community

Budget

A budget consists of two parts: revenue and expenditure, and is prepared by the
Finance Minister. After it is prepared by the Finance Minister and discussed in
the Council of Ministers it is powers of Parliament. The procedure for passage
of placed before the National Assembly. The Finance an organic law is
described under Article 46 which bill is then referred to the Standing Committee
on Finance which deliberates over its provisions.
The Assembly takes up its discussion fifteen days aller its presentation to it
Thus, the members get a fortnight to study the budget. The Assembly gets forty
days within which the first reading of the Finance bill must be finished in case,
the Assembly fls to reach a decision within this stipulated time. the government
sends the bill to the Senate to be read within fifteen days. In case of
disagreement between the two Houses the procedure set forth in Article 45
applies. In case, Parliament fails to reach decision within seventy days, the
Government ay apply is provisions by ordinance. If the Document fails to
introduce the Finance bill in me for it to be promulgated by the beginning of he
fiscal year, it may ask Parliament for authority to lleet taxes and make available
the funds needed provide for services already approved.
 269

• In the budgetary procedure the Standing Committee on Finance plays a

very important role
• As a matter of fact, it is the strongest of all the committees since it
approves the budget for every ministry and provides for appropriation of
money It can call any Minister to justify the estimates for his ministry and
may propose any reduction therein
• The discussion over the budget in the Assembly is aken ministry-wise.
The members may not propose any amendment which would reduce
receipts or increase expenditure. The President of the Finance Committee
is a powerful person who, when sportunity comes, becomes the Finance
Minister even the Prime Minister.

THE idea of fundamental right

The Idea of Fundamental Rights The concept of human rights can be traced
back to Natural Law philosophers, such as Locke and Rousseau. The Natural
Law philosophers philosophized over such inherent human rights and sought to
preserve these rights by propounding the theory of ‘Social Contract’. According
to Locke, man is born “with a title to perfect freedom and an uncontrolled
enjoyment of all the rights and privileges of the Law of Nature,” and he has by
nature a power – “to preserve his property that is, his life, liberty and estate
against the injuries and attempts of other men.” As early as in 1215, the English
people exacted an assurance from King John for the respect of the then ancient
liberties. Magna Carta is the evidence of their success which is a written
document. This is the first written document relating to the fundamental rights
of citizens. In 1689, the Bill of Rights was written consolidating all-important
rights and liberties of the English people. The Declaration of the French
Revolution, 1789 provided that, “the aim of all political association is the
conservation of the natural and inalienable rights of man.”

FR IN UK

1215: The Magna Carta

This English Charter acknowledged for the first time that subjects of the crown
had legal rights and that laws could apply to kings and queens too. The Magna
 270

Carta was also the first step in giving us the right to a trial by a jury of our
peers.

1679: Habeas Corpus Act

Another crucial step towards the right to a fair trial, this law protected and
extended the right of a detained person to go before a judge to determine
whether the detention was legal.

1689: English Bill of Rights

The Bill was a landmark moment in the political history of Britain because it
limited the powers of the monarch and set out the rights of Parliament. It
included the freedom to petition the monarch (a step towards political protest
rights); the freedom from cruel and unusual punishments (the forerunner to
the ban on torture in our Human Rights Act) and the freedom from being fined
without trial.

1948: Universal Declaration of Human Rights

The Universal Declaration of Human Rights is the foundation for modern
human rights. After the Second World War, the international community
recognised the need for a collective expression of human rights. Adopted by the
General Assembly of the United Nations in 1948, the declaration sets out a
range of rights and freedoms to which everyone, everywhere in the world, is
entitled.

1950: the European Convention on Human Rights

Members of the Council of Europe used the Universal Declaration of Human
Rights to draw up this treaty to secure basic rights both for their own citizens
and for other nationalities within their borders. The Convention was signed in
Rome in 1950, ratified by the UK in 1951 and came into force in 1953. Unlike
the Universal Declaration, the European Convention on Human Rights contains
rights which can be relied on in a court of law.

1965: Race Relations Act

This was the first legislation in the UK to address racial discrimination.
Although it was criticised because it only covered discrimination in specified
public places, the act laid the foundations for more effective legislation. It also
set up the Race Relations Board to consider complaints brought under the act.

1965: International Convention on the Elimination of All Forms of Racial

Discrimination
 271

This was the first human rights treaty adopted by the United Nations (UN).
The International Convention on the Elimination of All Forms of Racial
Discrimination (CERD) defines what constitutes race discrimination and sets
out a comprehensive framework for ensuring that civil, political, economic and
social rights are enjoyed by all, without distinction of race, colour, descent or
national or ethnic origin. The convention is the international human rights treaty
that sets out a comprehensive framework for ensuring that civil, political,
economic and social rights are enjoyed by all, without distinction of race,
colour, descent or national or ethnic origin. The UK ratified CERD in 1969.

1966: UK signs up to the European Court of Human Rights

Six years after the European Court of Human Rights was created, the UK
granted what is known as ‘individual petition’ - the right for people to take their
cases directly to the court in Strasbourg.

1975: Sex Discrimination Act

The act made sex discrimination illegal in the areas of employment, education
and the provision of goods, facilities and services.

1976: Race Relations Act

The Race Relations Act was established to prevent race discrimination. It made
race discrimination unlawful in employment, training, housing, education and
the provision of goods, facilities and services.

1976: International Covenant on Economic, Social and Cultural Rights

(ICESCR)
The general principles expressed by the Universal Declaration of Human Rights
were given specific legal force through these two covenants. The Universal
Declaration of Human Rights, the International Covenant on Civil and Political
Rights (ICCPR) and the International Covenant on Economic, Social and
Cultural Rights (ICESCR) make up the International Bill of Rights.

1979: Convention on the Elimination of All Forms of Discrimination against

Women (CEDAW)
Often referred to as the ‘bill of rights for women’, the Convention on the
Elimination of All Forms of Discrimination against Women defined what
constitutes discrimination against women and sets out the core principles to
protect their rights.
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1984: UN Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment
The most comprehensive international treaty dealing with torture,
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment became the first binding international instrument
exclusively dedicated to preventing some of the most serious human rights
violations of our time.

1989: UN Convention on the Rights of the Child

Governments worldwide promised all children the same rights by adopting
the Convention on the Rights of the Child, also known as the CRC or
UNCRC. The basic premise is that children (under the age of 18) are born with
the same fundamental freedoms and inherent rights as all human beings, but
with specific additional needs because of their vulnerability.

1995: Disability Discrimination Act

This Act represented the first far-reaching legislation on discrimination against
disabled people. It covered key areas of life such as employment and training,
education, goods, facilities and services, premises and transport.

1998: Human Rights Act

In force since October 2000, the Human Rights Act incorporated into domestic
law the rights and liberties enshrined in the European Convention on Human
Rights. People in the UK no longer had to take complaints about human rights
breaches to the European Court in Strasbourg – British courts could now hear
these cases.

2006: Universal Periodic Review

The UN’s new review system meant that, for the first time, the human rights
records of all Member States would come under regular scrutiny through
the Universal Periodic Review. It gave a clear message that all countries have
scope to improve the way human rights are promoted and protected.

2008: UN Convention on the Rights of Persons with Disabilities (UNCRPD)

The UN Convention on the Rights of Persons with Disabilities (UNCRPD) was
the first human rights treaty of the 21st Century. It reaffirms disabled people's
human rights and signals a further major step in their journey to becoming full
and equal citizens.

2010: the Equality Act

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The Equality Act brought together more than 116 separate pieces of legislation
into one single act - a new, streamlined legal framework to protect the rights of
individuals and advance equality of opportunity for all.
FR IN INDIA
The Fundamental Rights are considered as one of the integral part of Indian
Constitution. The Fundamental Rights are defined as the basic human freedoms
which every individual has a right to enjoy for a proper and harmonious
development of personality. Although many rights are considered as human rights
a specific legal test is used by courts to determine the limitations which can be
imposed on them. These rights find their origin in many places such as England
Bill of Rights, United States Bill of Rights and France Declaration of Bill of
Rights of Man.
The framing of Indian Constitution can be best known by browsing transcripts of
Constituent Assembly debate. The Constituent Assembly was composed of
members elected from various British Indian Provinces and nominated by the
princely states.
The framers if Indian Constitution had three things in mind – ensuring unity,
democracy and creating social revolution. The Constitution of India took nearly
three years in its formation and finally came into force on 26th January 1950.
The biggest challenge before the Constituent Assembly was to evolve a document
that would address the diversity amongst the population, create accountable
governance and an independent republic. The development of fundamental
human rights in India was due to exposure of students to the ideas of democracy,
working of parliamentary democracy and British political parties and was also
inspiredby
the:-
•EnglandBillofRights
•UsBillofRights
•FranceDeclarationoftheRightsofManand
• Development of Irish Constitution.
The inclusion of a set of Fundamental Rights had its genesis in the forces that
operated in the national struggle during British rule. Ms. Annie Besant described
the Constitution of India Bill as ‘home rule bill’ in 1985. This bill envisaged for
India a constitution guaranteeing to every of her citizen freedom of expression ,
inviolability of ones house, right to property, quality before law and in regard to
public offences right to present claims, petition and complains and rights to
personal liberty.
 274

The Indian National Congress at its Bombay session in August 1918 demanded
the inclusion of declaration of rights of the people of India as the British citizens
in the new Government of India Act.
The Declaration Included amongst other things guarantees in regard to equality
before the law, protection in respect to liberty, life and property, freedom of
speech and press and right of association. In its December 1918 session the Indian
National Congress passed another resolution demanding for immediate repeal of
all the laws, regulations and ordinances restricting all the laws, regulations and
ordinances restricting the free discussion of political questions and conferring to
the executive the power to arrest, detain or arrest any British subject in India
outside the process o f ordinary civil or criminal law. The Common Wealth of
India Bill finalized by the National Convention of 1925 embodied a specific
declaration of rights. The resolution passed by Indian National Congress in 1927
at its Madras Session lay down that the declaration of Fundamental Rights should
be the basis of future Constitution of India.
The problems faced by the minorities in India further strengthened the argument.
The Nehru Committee observed that the first care should be to have Fundamental
Rights guaranteed in such a manner which will not permit its withdrawal under
any circumstances. The Indian Statutory Commission refused to enumerate and
guarantee the demand of Fundamental Rights in the Constitution Act. Their
refusal was based on Simons Commission argument that abstract definition of
such rights is useless unless there existed the will and means to make them
effective.
The Indian National Congress at its Karachi session in 1931 again demanded for
a written guarantee for Fundamental Rights in any future Constitutional setup in
India. This demand was also emphasized at the round table conference at London.
A memorandum circulated by the Mahatma Gandhi at the second session of round
table conference demanded that the new constitution should include a guarantee
to the communities concerned to the protection of their cultures, language, scripts,
profession, education and practice of religion and religious endowments and
protect personal laws and protection of other rights of minority communities. The
Joint Select Committee of the British Parliament did not accept the demand for
the constitutional guarantee of Fundamental Rights to British subjects in India.
The Committee observed that:-
….there are also strong practical arguments against the proposal which may be
put in the form of a dilemma: for either the declaration of rights is of so abstract
a nature that it has no legal effect of any kind or its legal effect will be to impose
an embarrassing restrictions on the powers of the legislatures and to create a grave
risk that a large number of laws will be declared invalid or inconsistent with one
or other of the rights so declared….There is this further objection that the state
has made it abundantly clear that no declaration of fundamental rights is to apply
 275

to state territories and it would be anomalous if such a declaration had legal force
in part only of the area of the federation.
The committee conceded that there were some legal principles which could
approximately be incorporated in the new constitution. Accordingly sections 295,
297-300 of Government of India Act 1935 conferred certain rights and forms of
protection on British subjects in India.
By the Objective Resolution adopted on January 22, 1947 the constituent
assembly solemnly pledged itself to draw up for future governance a constitution
wherein “shall be guaranteed and secure to all the people of India justice, social,
economical and political, equality of status, of opportunity and before the law :
freedom of thought, expression, belief, faith, worship, vocation, association and
action, subject to law and public morality” and wherein adequate safeguards
would be provided for minorities, backward and tribal areas and depressed and
other classes. Two days after the adoption of the resolution the assembly elected
Advisory Committee for reporting on minorities fundamental rights and on the
tribal and excluded areas. The advisory committee in turn constituted on Feb27,
1947 five sub-committees which would deal with fundamental rights.
The sub committee on Fundamental Rights at its first meeting on February 27,
1942 had before it proposal of B.N.Rau to divide Fundamental Rights into two
classes i.e. justifiable and non justifiable.
An important question that faced the sub committee was that of distributing such
rights between the Provincial, the Group and the Union Constitution. In the early
sdtages of its deliberation the sub committee proceeded on the assumption of this
distribution and adopted certain rights as having reference only to union and
certain rights as having reference both to the union and to the constitutional units.
However later it was felt that if Fundamental Rights differed from group to group
and from unit to unit or were for that reason not uniformly enforceable, it was felt
the Fundamental Rights of citizens of the union had no value. This reorganization
leads to the realization that certain Fundamental Rights must be guaranteed to
every resident. The sub committee recommended that all the rights incorporated
must be binding upon all the authorities whether of the union or of the units. This
was thought to be achieved by providing definition in the first clause. The
expression the state included the legislature, the government of the union and the
units of all local or other authorities within the territories of the union that the law
of union included any law made by the union legislature and any existing Indian
law as in force within the union or any part thereof.
The sub committee fully discussed various drafts submitted by its members and
others before formulating the list of Fundamental Rights. Dr. Ambedkar pointed
out that the rights incorporated in the draft were borrowed from constitution of
various countries where the conditions are more or less analogous to those
existing in India.
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The draft submitted on April 3, 1947 was circulated to its members with the
explanatory notes on various clauses. The clauses contained in the draft report
were thereafter discussed in the sub committee in the light of the comments
offered by the members and the final report was submitted to the chairman of the
advisory committee on April 16, 1947. Three days later the sub committee on the
minority examined the draft clauses prepared by the fundamental rights sub
committee and reported on the subject of such rights from the point of view of
the minorities. The advisory committee deliberated on the recommendations
made by the two sub committee and accepted the recommendations for
(1) Classification of rights into justifiable or non justifiable.
(2) Certain rights being guaranteed to all persons and certain other only to citizens
(3) All such rights being made uniformly applicable to the union and the units.
The committee also accepted the drafts of clauses 1 and 2 – the former providing
the definition of the state, the unit and the law of the union and latter for the laws
or usages inconsistent with the fundamental rights being void in the form
recommended by the sub committee also the word constitution was replaced by
the word this part of the constitution. The advisory committee incorporated these
recommendations in its interim report to the constituent assembly submitted on
April 23, 1947. The interim report dealt only with justifiable rights i.e
fundamental rights. Later on August 25, 1947 the advisory committee submitted
a supplementary report mainly dealing with non-justifiable rights i.e. the
Directive Principles of State Policy or the Fundamental Principles of Governance.
A notable development took place on 10 December 1948 when the United
Nations General Assembly adopted the Universal Declaration of Human Rights
and called upon all member states to adopt these rights in their respective
constitutions.
The various stages through which the various clauses on fundamental rights
passed were similar to other parts of the constitution. Firstly- the constitutional
adviser prepared a draft embodying a decision of the constituent assembly. This
draft was considered exhaustively and in detail by the drafting committee, which
prepared a revised draft and published it in February 1948. The revised draft was
then widely circulated. The comments and suggestions received from all quarters
were again considered by the drafting committee and in light of these the
committee proposed certain amendments. Discussions in constituent assembly of
the draft provisions took place in November and December 1948 and August,
September and October 1949. During these meetings the committee considered
the various suggestions for amendment made on behalf of Drafting Committee as
well as those proposed by the individual members of the assembly. The
provisions as passed by the assembly were again scrutinized by the Drafting
Committee and incorporated by the drafting changes wherever necessary in the
revised draft constitution. The revised draft was again placed before the assembly
at its final session held in November 1949.
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The fundamental rights were included in the First Draft Constitution (February
1948), the Second Draft Constitution (17 October 1948) and final Third Draft
Constitution (26 November 1949) prepared by the Drafting Committee.
CONCLUSION
The fundamental rights were included in the constitution because they were
considered essential for the development of the personality of every individual
and to preserve human dignity. The writers of the constitution regarded
democracy of no avail if civil liberties, like freedom of speech and religion were
not recognized and protected by the State. Some commentators consider the
Indian Constitution to be an extremely lengthy document that goes into excessive
details about the structure and working of the government machinery. Most of
these rights are enforceable against the State by way of their language, while some
others are directed both against the State and private actors. The most important
feature however is that the fundamental rights gave the higher judiciary a clear
set of criteria to regulate relations between citizens and the government (i.e.
‘vertical application of rights’) as well as among citizens themselves (i.e.
‘horizontal application of rights’). Furthermore, Indian Courts have interpreted
these rights not only in a ‘negative’ dimension (i.e. in terms of protection against
violations) but also in a ‘positive’ dimension (i.e. in terms of entitlements to
benefits).
The right to freedom and personal liberty has a number of limiting clauses, and
thus has been criticized for failing to check the sanctioning of powers often
deemed "excessive" The phrases "security of State", "public order" and
"morality" are of wide implication. The meaning of phrases like "reasonable
restrictions" and "the interest of public order" have not been explicitly stated in
the constitution, and this ambiguity leads to unnecessary litigation. Employment
of child labour in hazardous job environments has been reduced, but their
employment even in non-hazardous jobs, including their prevalent employment
as domestic help violates the spirit and ideals of the constitution.

The Fundamental Rights in India enshrined in the Part III of the Constitution
of India guarantee civil liberties such that all Indians can lead their lives in
peace and harmony as citizens of India. These include individual rights common
to most liberal democracies, such as equality before law, freedom of speech
and expression, freedom of association and peaceful assembly, freedom to
practice religion, and the right to constitutional remedies for the protection of
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civil rights by means of writs such as habeas corpus. Violations of these rights
result in punishments as prescribed in the Indian Penal Code, subject to
discretion of the judiciary. The Fundamental Rights are defined as basic human
freedoms which every Indian citizen has the right to enjoy for a proper and
harmonious development of personality. These rights universally apply to all
citizens, irrespective of race, place of birth, religion, caste, creed, colour or sex.
They are enforceable by the courts, subject to certain restrictions. The Rights
have their origins in many sources, including England's Bill of Rights,
the United States Bill of Rights and France's Declaration of the Rights of Man.
The six fundamental rights are:

1. Right to equality
2. Right to freedom
3. Right against exploitation
4. Right to freedom of religion
5. Cultural and educational rights
6. Right to constitutional remedies
Rights literally mean those freedoms which are essential for personal good as
well as the good of the community. The rights guaranteed under
the Constitution of India are fundamental as they have been incorporated into
the Fundamental Law of the Land and are enforceable in a court of law.
However, this does not mean that they are absolute or that they are immune
from Constitutional amendment.
Fundamental rights for Indians have also been aimed at overturning the
inequalities of pre-independence social practices. Specifically, they have also
been used to abolish untouchability and hence prohibit discrimination on the
grounds of religion, race, caste, sex, or place of birth. They also forbid
trafficking of human beings and forced labour. They also protect cultural and
educational rights of ethnic and religious minorities by allowing them to
preserve their languages and also establish and administer their own education
institutions.
Genesis

The development of constitutionally guaranteed fundamental human rights in

India was inspired by historical examples such as England's Bill of Rights
(1689), the United States Bill of Rights (approved on September 17, 1787, final
ratification on December 15, 1791) and France's Declaration of the Rights of
 279

Man (created during the revolution of 1789, and ratified on August 26, 1789).
Under the educational system of British Raj, students were exposed to ideas of
democracy, human rights and European political history. The Indian student
community in England was further inspired by the workings of parliamentary
democracy and British political parties.
In 1919, the Rowlatt Acts gave extensive powers to the British government and
police, and allowed indefinite arrest and detention of individuals, warrant-less
searches and seizures, restrictions on public gatherings, and intensive
censorship of media and publications. The public opposition to this act
eventually led to mass campaigns of non-violent civil disobedience throughout
the country demanding guaranteed civil freedoms, and limitations on
government power. Indians, who were seeking independence and their own
government, were particularly influenced by the independence of Ireland and
the development of the Irish constitution. Also, the directive principles of state
policy in Irish constitution were looked upon by the people of India as an
inspiration for the independent India's government to comprehensively tackle
complex social and economic challenges across a vast, diverse nation and
population.
In 1928, the Nehru Commission composing of representatives of Indian
political parties proposed constitutional reforms for India that apart from calling
for dominion status for India and elections under universal suffrage, would
guarantee rights deemed fundamental, representation for religious and ethnic
minorities, and limit the powers of the government. In 1931, the Indian National
Congress (the largest Indian political party of the time) adopted resolutions
committing itself to the defense of fundamental civil rights, as well as socio-
economic rights such as the minimum wage and the abolition of untouchability
and serfdom. Committing themselves to socialism in 1936, the Congress leaders
took examples from the constitution of the erstwhile USSR, which inspired the
fundamental duties of citizens as a means of collective patriotic responsibility
for national interests and challenges.

When India obtained independence on 15 August 1947, the task of developing a

constitution for the nation was undertaken by the Constituent Assembly of
India, composing of elected representatives under the presidency of Rajendra
Prasad. While members of Congress composed of a large majority, Congress
leaders appointed persons from diverse political backgrounds to responsibilities
of developing the constitution and national laws. Notably, Bhimrao Ramji
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Ambedkar became the chairperson of the drafting committee, while Jawaharlal

Nehru and Sardar Vallabhbhai Patel became chairpersons of committees and
sub-committees responsible for different subjects. A notable development
during that period having significant effect on the Indian constitution took place
on 10 December 1948 when the United Nations General Assembly adopted
the Universal Declaration of Human Rights and called upon all member states
to adopt these rights in their respective constitutions.
The Fundamental Rights were included in the Ist Draft Constitution (February
1948), the IInd Draft Constitution ( 17 October 1948) and the IIIrd and final
Draft Constitution ( 26 November 1949), being prepared by the Drafting
Committee.
Significance and characteristics

The Fundamental Rights were included in the constitution because they were
considered essential for the development of the personality of every individual
and to preserve human dignity. The writers of the constitution regarded
democracy of no avail if civil liberties, like freedom of speech and religion were
not recognized and protected by the State. According to them, "democracy" is,
in essence, a government by opinion and therefore, the means of formulating
public opinion should be secured to the people of a democratic nation. For this
purpose, the constitution guaranteed to all the citizens of India the freedom of
speech and expression and various other freedoms in the form of the
Fundamental Rights.

All people, irrespective of race, religion, caste or sex, have been given the right
to move the Supreme Court and the High Courts for the enforcement of their
Fundamental Rights. It is not necessary that the aggrieved party has to be the
one to do so. Poverty stricken people may not have the means to do so and
therefore, in the public interest, anyone can commence litigation in the court on
their behalf. This is known as " Public interest litigation". In some cases, High
Court judges have acted on their own on the basis of newspaper reports.
These Fundamental Rights help not only in protection but also the prevention of
gross violations of human rights. They emphasize on the fundamental unity of
India by guaranteeing to all citizens the access and use of the same facilities,
irrespective of background. Some Fundamental Rights apply for persons of any
nationality whereas others are available only to the citizens of India. The right
to life and personal liberty is available to all people and so is the right to
 281

freedom of religion. On the other hand, freedoms of speech and expression and
freedom to reside and settle in any part of the country are reserved to citizens
alone, including non-resident Indian citizens. The right to equality in matters of
public employment cannot be conferred to overseas citizens of India.
Fundamental rights primarily protect individuals from any arbitrary State
actions, but some rights are enforceable against individuals. For instance, the
Constitution abolishes untouchability and also prohibits beggar. These
provisions act as a check both on State action as well as the action of private
individuals. However, these rights are not absolute or uncontrolled and are
subject to reasonable restrictions as necessary for the protection of general
welfare. They can also be selectively curtailed. The Supreme Court has ruled
that all provisions of the Constitution, including Fundamental Rights can be
amended. However, the Parliament cannot alter the basic structure of the
constitution. Features such as secularism and democracy fall under this
category. Since the Fundamental Rights can only be altered by a constitutional
amendment, their inclusion is a check not only on the executive branch, but also
on the Parliament and state legislatures.
A state of national emergency has an adverse effect on these rights. Under such
a state, the rights conferred by Article 19 (freedoms of speech, assembly and
movement, etc.) remain suspended. Hence, in such a situation, the legislature
may make laws which go against the rights given in Article 19. Also,
the President may by order suspend the right to move court for the enforcement
of other rights as well.
Fundamental Rights in the United States and India

The modern trend of guaranteeing fundamental rights to the people may be

traced to the Constitution of the USA.

• The original constitution as drafted in the year 1787 did not contain any
fundamental right.

• There was trenchant criticism of the US Constitution on this point.

• Following the spirit of the Magna Carta of the British and the Declaration of
the Rights of Man and the citizens of France, the Americans incorporated the
Bill of Rights in their Constitution in the year 1791 in the form of ten
amendments and thus the Americans were the first to give the Bill of Rights a
constitutional status.
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Coming to India, a few good reasons made the enunciation of the fundamental
rights in the Constitution rather inevitable.

• Firstly, the main political party, the Congress, had for long been demanding
these rights against the British rule.

• During the British rule in India, human rights were violated by the rulers on a
very wide scale.

• Therefore, the framers of the Constitution, many of whom had suffered

incarceration during the British regime, had a very positive attitude towards
these rights.

• Secondly, Indian society is fragmented into many religions, cultural and

linguistic groups and it was necessary to declare fundamental rights to give to
the people a sense of security and confidence.

Freedom of press is explicitly given under the First Amendment while in India
it is implicit in freedom of speech and expression under Article 19(1)(a).

• Petition to the Supreme Court is a fundamental right in India, whereas in the

US, it is the government that is petitioned (in case of the US, the word
“government” has a wider connotation and encompasses not only the executive,
but also the higher judiciary).

• Under the Second Amendment of the US Constitution, the right to bear arms
is a fundamental right while in India the situation is totally different because not
only is there no such fundamental right, arms in India is strictly regulated.

• In the United States, no person’s life and liberty can be deprived without
following the due process of law, in India on the other hand the life and
personal liberty can be taken away only according to the procedure established
by law.

• India did away with the Right of Property as a fundamental right in the year
1978 but in the United States it still remains a fundamental right as no property
can be taken away without just compensation.

• Further, the 8th Amendment to the US Constitution says that bail shall not be
denied to an accused, the imposed fine should not be excessive and inflicted
punishment shall not be cruel. These rights are also made available to Indian
 283

people because of well-established precedents pronounced by the Supreme

Court under Article 21.

• Furthermore, the Ninth Amendment of the United States Constitution provides

that absence of certain rights from the Constitution or statutes does not mean
that people do not have these rights, this is in consonance with Locke’s theory.
In India, there is no such article which means that Indians only enjoy the rights
that are provided for in statute books, this is in line with the theories
propounded by Austin and Bentham.

FUNDAMENTAL RIGHTS IN USA

Heart of Atlanta Motel v. United States

• Heart of Atlanta Motel v. United States, case in which the U.S. Supreme Court
ruled on Dec. 14, 1964, that in passing Title II of the Civil Rights Act (1964),
which prohibited segregation or discrimination in places of public
accommodation involved in interstate commerce, the U.S. Congress did not
exceed the regulatory authority granted to it by the commerce clause of Article I
of the U.S. Constitution. The court thereby declared that Title II was
constitutional.

• The owner of the Heart of Atlanta Motel in Georgia, who had previously
refused to accept black customers, filed suit in federal district court, alleging
that the prohibition of racial discrimination contained in Title Ix of the Civil
Rights Act represented an invalid exercise of Congress's constitutional power to
regulate interstate commerce. The owner also claimed that the title violated the
Fifth Amendment's guarantees of due process and just compensation for the
taking of private property because it deprived him of the right to choose his
customers and that it violated the Thirteenth Amendment's prohibition of
involuntary servitude because it compelled him to rent rooms to blacks.

WHAT IS THE CIVIL RIGHTS ACT?

Under the Civil Rights Act of 1964, segregation on the grounds of race, religion
or national origin was banned at all places of public accommodation. including
courthouses, parks, restaurants, theatres, sports arenas and hotels, No longer
could blacks and other minorities be denied service simply based on the color of
their skin.
 284

The act also barred race, religious, national origin and gender discrimination by
employers and labor unions, and created an Equal Employment Opportunity
Commission with the power to file lawsuits on behalf of aggrieved workers.

Additionally, the act forbade the use of federal funds for any discriminatory
program, authorized the Office of Education (now the Department of
Education) to assist with school desegregation, gaveextra clout to the
Commission on Civil Rights and prohibited the unequal application of voting
requirements.

The second emancipation..

• Civil rights leader Martin Luther King Jr. said that the Civil Rights Act of1964
was nothing less than a "second emancipation."

• The Civil Rights Act was later expanded to bring disabled Americans, the
elderly and women in collegiate athletics under its umbrella.

It also paved the way for two major follow-up laws: the Voting Rights Act of
1965, which prohibited literacy tests and other

discriminatory voting practices, and the Fair Housing Act of 1968, which
banned discrimination in the sale, rental and financing of property. Though the
struggle against racism would continue, legal segregation had been brought to
its knees in the United States.

Voting rights and fair housing act.

It also paved the way for two major follow-up laws: the Voting Rights Act of
1965, which prohibited literacy tests and other discriminatory Voting practices,
and the Fair Housing Act of 1968, which banned Discrimination in the sale,
rental and financing of property. Though the struggle against racism would
continue, legal segregation had been brought to its knees in the United States.

Title I

Title I did not eliminate literacy tests, which were one of the main methods used
to exclude Black voters, other racial minorities, and poor Whites in the South,
nor did it address economic retaliation, police repression, or physical violence
against non white voters. While the Act did require that voting rules and
procedures be applied equally to all races, it did not abolish the concept of voter
“qualification", that is to say, it accepted the idea that citizens do not have an
automatic right to vote but rather might have to meet some standard beyond
 285

citizenship. It was the Voting Rights Act, enacted one year later in 1965, that
directly addressed and eliminated most voting qualifications beyond citizenship.
Title II

Qutlawed discrimination based on race, color, religion or national origin in

hotels, motels, restaurants, theaters, and all other public accommodations
engaged in interstate commerce; exempted private clubs without defining the
term "private"

Title III

Prohibited state and municipal governments from denying access to public

facilities on grounds of race, color, religion or national origin.

Title IV

Encouraged the desegregation of public schools and authorized the U.S.

Attorney General to file suits to enforce said act.

Title V

• Expanded the Civil Rights Commission established by the earlier Civil Rights
Act of 1957 with additional powers, rules

and procedures.

Title VI

Prevents discrimination by government agencies that receive federal Funds,

IKan agency is found in violation of Title VI, that agency may lose its federal
funding.

Federal assistance conditional...

• This title declares it to be the policy of the United States that discrimination on
the ground of race, color, or national origin shall not occur in connection with
programs and activities receiving Federal financial assistance and authorizes
and directs the appropriate federal departments and agencies to take action to
carry out this policy. This title is not intended to apply to foreign assistance
programs. 이

Section 601 This section states the general principle that no person in the United
States shall be excluded from participation in or otherwise discriminated against
 286

on the ground of race, color, or national origin under any program or activity
receiving Federal financial assistance.

. In seeking the effect compliance with its requirements imposed under this
section, an agency is authorized to terminate or to refuse to grant or to continue
assistance under a program to any recipient as to whom there has been an
express finding pursuant to a hearing of a failure to comply with the
requirements under that program, and it may also employ any other means
authorized by law.

Title VII of the Act, codified as Subchapter VI of Chapter 21 of title 42 of the

United States Code, prohibits discrimination by covered employers on the basis
of race, color, religion, sex or national origin (see 42 U.S.C. § 2000e-2). Title
VII also prohibits discrimination against an individual because of his or her
association with another individual of a particular race, color, religion, sex, or
national origin, such as by an interracial marriage.

• The EEO Title VII has also been supplemented with legislation prohibiting
pregnancy, age, and disability discrimination (See Pregnancy Discrimination
Act of 1978, Age Discrimination in Employment Act,[47] Americans with
Disabilities Act of 1990).

Sexual harassment at workplace

• In the early 1980s, the EEOC and some federal courts began holding that
sexual harassment is also prohibited under the Act. In 1986, the Supreme Court
held in Meritor Savings Bank v. Vinson, 477 U.S. 57(1986), that sexual
harassment is sex discrimination and is prohibited by Title VID This case filed
by plaintiff Mechelle Vinson was the first in the history of the court to
recognize sexual harassment as actionable. bank

Gender identity..

• In 2014, the EEOC initiated two lawsuits against private companies for
discrimination on the basis of gender identity, with additional Litigation under
consideration. As of November 2014, Commissioner Chai Feldblum is making
an active effort to increase awareness of Title VII remedies for individuals
discriminated on the basis of sexual orientation or gender identity.

Black's Law Dictionary (Black & Garner, 1999) defines affirmative action
as "a set of actions designed to eliminate existing and continuing
discrimination, to remedy lingering effects of past discrimination, and to
create systems and procedures to prevent future discrimination."
 287

The legal definition produced for this study described affirmative action as
"consisting of proportionate measures undertaken with the purpose of achieving
full and effective equality in practice for members of groups that are socially or
economically disadvantaged otherwise face the consequences of past or present
discrimination or disadvantage."

Affirmative action measure" should be regarded as an umbrella term covering

all kinds of activities, initiatives, strategies, and interventions that seek to
achieve one or more of the goals identified for affirmative action in both
employment and service provision fate Shafiemes

In the United States, the term affirmative action is used to refer to programs
designed to remedy past and present injustices targeted at marginalized groups
in society.

Affirmative action

The concept of affirmative action was introduced in the early 1960s in the
United States, as a way to combat racial discrimination in the hiring process,
with the concept later expanded to address gender discrimination.

• Affirmative action was first created from Executive Order 10925, which was
signed by President John F. Kennedy on 6 March 1961 and required that
government employers "not discriminate against any Employee or applicant for
employment because of race, creed, color, or national origin" and "take
affirmative action to ensure that applicants are employed, and that employees
are treated during employment, without regard to their race, creed, color, or
national origin"

• On 24 September 1965, President Lyndon B. Johnson signed Executive Order

11246, thereby replacing Executive Order 10925 and affirming federal
Government's commitment to promote the full realization of equal employment
opportunity through a positive, continuing program in each executive
department and agency". Affirmative action was extended to women by
Executive Order 11375 which amended Executive Order 11246 on 13 October
1967, by adding "sex" to the list of protected categories.

• In the U.S. affirmative action's original purpose was to pressure institutions

into compliance with the non-discrimination mandate of the Civil Rights Act of
1964
 288

• The Civil Rights Acts do not cover veterans, people with disabilities, or people
over 40. These groups are protected from discrimination under different laws

• In 2003, a Supreme Court decision regarding affirmative action in higher

education (Grutter v. Bollinger, 539 US 244 - Supreme Court2003) permitted
educational institutions to consider race as a factor when admitting students,

• Alternatively, some colleges use financial criteria to attract racial groups that
have typically been under-represented and typically have lower living
conditions.

In the United States, affirmative action in employment and education has been
the subject of legal and political controversy, and in 2003, a pair of US Supreme
Court decisions (Grutter v. Bollinger and Gratz Bollinger) permitted educational
institutions to consider race as a factor when admitting students while
prohibiting the use of quotas.

Regents of University of California v. Bakke (1978)? Why is this case a

landmark decision ?

• Regents of the University of California v. Bakke, 438 U.S. 265(1978),[1] was

a landmark decision by the Supreme Court of the United States. It upheld
affirmative action, allowing race to be one of several factors in college
admission policy. However, the court ruled that specific racial quotas, such as
the 16 out of 100 seats set aside for minority students by the University of
California, Davis School of Medicine, were impermissible.

• Although the Supreme Court had outlawed segregation in schools, and had
even ordered school districts to take steps to assure integration, the question of
the legality of voluntary affirmative action programs initiated by universities
remained unresolved.

• Proponents deemed such programs necessary to make up for past

discrimination, while opponents believed they were illegal and a violation of the
Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution.

The case fractured the court; the nine justices issued a total of six opinions. The
judgment of the court was written by Justice Lewis F.Powell Jr.; two different
blocs of four justices joined various parts of Powell's opinion. Finding diversity
in the classroom to be a compelling State interest, Powell opined that
affirmative action in general was allowed under the Constitution and the Civil
Rights Act of 1964.
 289

• Questions about whether the Bakke cas was merely a plurality opinion or
binding precedent were answered in 2003 when the court upheld Powell's
position in a majority opinion in Grutter v. Bollinger.

In the cases Grutter v. Bollinger and Gratz v. Bollinger (2003), the Supreme
Court ruled that the use of affirmative action in school admission is
constitutional if it treats race as one factor among many, its purpose is to
achieve a "diverse" class, and it does not substitute for individualized review of
applicant, but is unconstitutional if it Automatically increases an applicant's
chances over others simply because of his or her race.

• The Grutter case involved a lawsuit against the admission process at the
University of Michigan's Law School. The mission of the law School's intensely
competitive admission process was to achieve "a Mix of students with varying
backgrounds and experiences who will Respect and learn from one another."

• Barbara Grutter, a white Michigan resident whose application was Rejected,

sued the school in a lower federal court alleging that its Admissions policy was
unconstitutional. Grutter alleged that the School made race a "predominate"
factor in admissions decisions and That the school intentionally discriminated
against whites, and that This violated the Fourteenth Amendment, which forbids
states from Denying "to any person within its jurisdiction the equal protection of
The law." In its defense, the school maintained that it did not employ
racialQuotas or percentages in its admissions process but simply sought a
"critical mass” of underrepresented minorities in each entering class.

• The lower court found for Grutter, ruling that the law school's Admissions
policy was unconstitutional. After a federal appeals court Reversed the decision,
Grutter appealed to the Supreme Court, which Reviewed the case in 2003.

• Applying the logic of Regents of University of California v. Bakke (1978), the

Supreme Court, in a 5-4 decision written by Justice Sandra Day O'Connor, ruled
that the University of Michigan's affirmative Action program was constitutional.
The Court argued that while the Law school's race-conscious admissions
scheme was presumptively Unconstitutional under the Fourteenth Amendment's
Equal Protection Clause because it intentionally discriminated on the basis Of
race, the school's interest in promoting "student diversity" was Sufficiently
"compelling," and its case-by-case admissions process was "narrowly tailored"
enough, to withstand strict scrutiny.

Gratz v. Bollinger
 290

Gratz v. Bollinger involved a challenge to the University of Michigan's

Undergraduate affirmative action program. The university ranked each
applicant on a 150-point scale, with 100 points generally guaranteeing
Admission.

• Membership in a historically discriminated-against racial group, or

"attendance at a predominately minority or disadvantaged high school,
"Resulted in an automatic bonus of 20 points on the scale. Jennifer Gratz and
Patrick Hammacher, both white residents of Michigan, were denied Admission
to the university. They subsequently sued the university in a Federal court,
alleging that its admissions process was unconstitutional. The Federal court
agreed, and the case was appealed up to the Supreme Court, Which reviewed
the case in 2003.

• The Supreme Court, in a 6-3 decision written by Chief Justice William

Rehnquist, ruled that the University of Michigan's undergraduate Admissions
program was because it violated the Equal Protection Člause. unconstitutional

• The Court noted that the university automatically conferred points based On
an applicant's race, thereby placing some minority candidates ahead of Non-
minorities in admissions rankings. The Court argued that this system Made
"race a decisive factor for virtually every minimally qualified Underrepresented
minority applicant." Thus, because the means Employed by the affirmative
action program were not narrowly tailored Enough" to withstand strict scrutiny,
the university's race-conscious Affirmative action program was declared
unconstitutional under the Equal Protection Clause.

Questioning the federal program

• In the Adarand v. Peña case, in which a federal program rewarded Contractors

for hiring a subcontractor who had been certified as a Small disadvantaged
business by the Small Business Administration, a State highway agency, or
some other certifying authority acceptable To the contracting officer. Another
subcontractor that was not Awarded the guardrail portion of a federal highway
project brought an Action challenging the constitutionality of a federal program
designed To provide highway contracts to disadvantaged business enterprises
(Adarand Constructors, Inc. V. Peña, 515 U.S. 200, 1995).

• Executive order 11246(1973) for federal Contractors ..

• Compliance includes disseminating and enforcing a non Discrimination

policy, establishing a written affirmative action plan And placement goals for
minorities and women, and implementing Voluntary action-oriented programs
 291

for accomplishing these goals. Moreover, federal contractors should assign an

official in the Organization the responsibility for implementation of equal
Employment opportunity and the affirmative action program.

Positive action in Uk

There are no legal instruments in Great Britain that oblige private Sector
organizations to take positive action.

• With regard to public sector organizations, there are a range of legal

Obligations that place public authorities under a duty to promote Equality.
Although these might not constitute positive action per se, They establish
frameworks within which public authorities can be Expected to take positive
action.

Section 75 of the Northern

• Ireland Act 1998 places public authorities under duty to: have due regard to
the need to promote equality of opportunity
Between persons of different religious belief, political opinion,

Racial group, age, marital status, sexual orientation;

(b) Between men and women generally;

• (c) Between persons with a disability and those without; and • (d) Between
persons with dependents and those without.

Schedule 9 of the Act specifies that all public authorities are required To
prepare an "equality scheme" setting out the detailed Arrangements for
complying with the duty. In Great Britain, the Race Relations (Amendment) Act
(2000) introduced an amended section 71(1), which states that a public authority
"shall, in carrying out its Functions, have due regard to the need (a) to eliminate
unlawful Discrimination; and (b) to promote equality of opportunity and good
Relations between persons of different racial groups."

The general duty in the Act was subsequently supplemented by a Series of

legally enforceable specific duties set out in the Race Relations Act 1976
(Statutory Duties Order 2001 No. 3458).

In summary, these create obligations for public authorities to collect Data

relating to the ethnic origin of their employees and, in relation To education
providers, students.
 292

• Race equality scheme

• Disability (Disability Discrimination Act, 2005) and gender (Equality Act,

2006) now complement the race equality duty.

Equality Act, 2010

The government has introduced a single equality duty within the new Equality
Act (2010), which brings together nine separate pieces of Legislation into one
single act simplifying the law and strengthening it In important ways to help
tackle discrimination and inequality.

• Section 159 of the Equality Act (2010),

enacted from April 6, 2011, makes it lawful for an employer to take any of the
nine "protected characteristics" (age, Disability, gender reassignment, marriage
and civil partnership, Pregnancy and maternity, race, religion or belief, sex, and
sexual Orientation) into consideration when deciding whom to recruit or
Promote, where people having the protected characteristic are at a Disadvantage
or are under-represented in the employer's workforce.
This can be done only where the candidates are As qualified as each other!

An example of indirect discrimination

• Example

A health club only accepts customers who are on the electoral Register. This
applies to all customers in the same way. But Gypsies And Travellers are less
likely to be on the electoral register and Therefore they'll find it more difficult to
join. • This could be indirect discrimination against Gypsies and

Travellers Because of the protected characteristic of race. The rule seems fair,
But it has a worse effect on this particular group of people.

• "The question of whether one person is as qualified as another is not A matter

only of academic qualification, but rather a judgement Based on the criteria the
employer uses to establish who is best for The job which could include matters
such as suitability, competence And professional performance.

The Equality Act 2010 does not allow employers to have a policy or Practice of
automatically treating people who share a protected Characteristic more
 293

favourably than those who do not have it in these Circumstances; each case
must be considered on its merits.

• Any action taken must be a proportionate means of addressing such

Disadvantage or under-representation.

• "positive action" of the sort noted above is not compulsory, unlike the Duty
imposed on employers to make "reasonable adjustments in Favour of employees
who suffer from a disability, which can clearly Amount in a rather different
sense to taking positive action

• Unless protected by the specific statutory exceptions described Above,

positive action is vulnerable to legal challenge as direct or Indirect
discrimination.

• Lambeth London Borough Council v. Commission for Racial Equality, ICR

768 (1990) concerned a Council district in which more than half of All tenants
were Afro-Caribbean or Asian. To make the housing Service more sensitive to
the needs of minority ethnic communities, The Council reserved certain posts
for minorities. In relation to those Posts that did not involve substantial contact
with the public, this was Held to constitute unlawful direct discrimination.
Protection from unlawful discrimination is provided by the Equality Act in
Relation to the following characteristics:

• Age disability
• gender reassignment

• pregnancy and maternity (which includes breastfeeding)

• race

• religion and belief

• sex

• Sexual orientation.

• The Equality Act 2010 outlaws a number of forms of discrimination:

• An individual or organisation that provides services to the public Must not

treat someone worse just because of one or more protected Characteristics (this
 294

is called direct discrimination). • However, in the case of direct age-

discrimination, this will be

Permissible if a service provider can show that what it has done is Objectively
justified. An organisation must not do something to someone in a way that Has
a worse impact on them and other people who share a

Particular protected characteristic than it has on people who do

not Share that characteristic. • Unless the organisation can show that what they
have done is Objectively justified, this will be what is called indirect
Discrimination. 'Doing something can include making a decision, or Applying a
rule or way of doing things.

Indirect discrimination

• Example - A shop decides to apply a 'no hats or other headgear' rule To

customers. If this rule is applied in exactly the same way to every Customer.
Sikhs, Jews Muslims and others who may cover their heads As part of their
religion will not be able to use the shop. Unless the Shop can objectively justify
using the rule, this will be indirect Discrimination.

• A village hall has a 'no dogs' rule. If the manager of the hall bars a

• disabled person who uses an assistance dog, not because of their • disability
but because they have a dog with them, this would-be discrimination arising
from disability unless the manager can objectively justify what they have done.

A service provider must not treat someone worse than someone else Because
they are associated with a person who has a protected Characteristic.

• Example - A café refuses to serve a customer who has a disabled child with
them.

• A service provider must not treat someone worse than someone else Because
they incorrectly think that person has a protected characteristic (perception).

• Example -A GP's receptionist tells a woman that they will not

take her on their list because they wrongly think she is a transsexual.
 295

FUNDAMENTAL RIGHTS IN THE FRANCE CONSTITUTION

• Human rights are among the founding values of the French Republic.
Respect for human rights is central to the exercise of democracy in
France and to our commitment as a member of the European Union,
which is why France is standing as a candidate for membership of the
Human Rights Council for the 2014-2016 periods.
• Ever since the coming of the French Revolution (1789), with its
distinctive emphasis upon Liberty, Equality, Fraternity and
Republicanism, and the consequent adoption of the Declaration of the
Rights of Man and of Citizen, the concept of equal rights and liberty for
all has been a passionately cherished ideal of the people of France.
• Human rights in France are contained in the preamble of the Constitution
of the French Fifth Republic, founded in 1958, and the 1789 Declaration
of the Rights of Man and of the Citizen.
• France has also ratified the 1948 Universal Declaration of Human Rights,
as well as the European Convention on Human Rights 1960 and the
Charter of Fundamental Rights of the European Union (2000).
• All these international law instruments take precedence on national
legislation. However, human rights abuses take place nevertheless.
• The state of detention centres for unauthorized migrants who have
received an order of deportation has also been criticized.
• During the French Revolution, deputies from the Third Estate drafted the
Declamation of the Rights. Of Man and of the Citizen, voted by the
General Estates on 26 August 1789. Inspired by the philosophy of the
Enlightenment and by the 1776 United States Declaration of
Independence - Lafayette participated in the drafting of both - in that it
proclaims the "inalienable rights of Man." and is protected by a "Supreme
Being," it mainly granted to the people the right of freedom of
expression, of freedom of thought, freedom of association. liberty,
security and the protection of private property.
• France signed and ratified the Universal Declaration of Human Rights in
1948 as well as all Geneva Conventions, France actively supports the
independence of the Office of the High Commissioner for Human Rights
(OCHCR), whose mandate includes preventing human rights violations,
securing respeet for all human rights, promoting international cooperation
to protect human rights and integrating human rights in the United
Nations syslet.
• France is an active contributor to the task of strengthening the Human
Rights Council, the leading inter-governmental body responsible for
promoting and protecting human rights.
 296

• The protection of human rights, as enshrined in the Universal Declaration

of Human Rights, is central to the work of the United Nations, which
asserts that these rights are universal, indivisible, and interdependent and
interrelated (UN World Conference on Human Rights).
• These rights form part of the founding values of the French Republic as
proclaimed in the preamble to the French Constitution. Respect for
human rights is central to the exercise of democracy in France and to our
commitment as a member of the European Union and of international
organisations,

• The American Declaration of Independence and the French Declaration

of Rights have together provided a formidable basis the concept of
democratic system of government and liberalism.

• The Constitution of the Fifth Republic affirms a in the sovereign equality,

sovereignty and rights and liberties of the people. The Constitution, like
the constitution of the Fourth Republic, provides for several features
which govern the rights and freedom of the citizens of France:

(1) The Constitution guarantees equal rights to men and women

(2) Every person has the right to safeguard his rights. For this
purpose, he can join and form Trade Unions.
(3) Within the limits prescribed by law, every person has the right to
strive for securing his legitimate rights.
(4) Every worker has the right to participate in the determination of
collective agreements in respect of the working conditions of his
profession.
(5) The state has the obligation to provide facilities for the
development of each person and his family.
(6) The institution guarantees to all, especially to children, mothers
and old persons, physical security and the security of health, rest
and leisure.
(7) The Constitution guarantees general education, professional
education and training to all children and adults.
(8) It is the duty of every person to do his work, and he has the right to
get work.
(9) On the basis of equality of rights and duties, irrespective of their
religions, the people of France form the French Union.
(10) If the freedom of any person in any foreign country is
violated, he can come to France and seek shelter. France can give
shelter to all such person.
(11) All French citizens enjoy equal civil and political rights.
Article I accepts Liberty, Equality and Fraternity as the objectives
 297

of the Republic and Articles 2 and 3 grant political rights to the

people. The French Constitution has been a very strong votary of
human rights. However, it provides for no formal constitutional
guarantee for the protection and security of rights. These are
devoid of constitutional protection. These are of the nature of
solemn declarations which are always respected in France. These
are backed by the sanctions of history and traditions of France.

HUMAN RIGHT ISSUES

France is particularly strongly committed to certain causes: universal abolition

of the death penalty. combating impunity, arbitrary detention and enforced
disappearance, respect for women's rights, combating the recruitment and
conscription of child-soldier and combating discrimination based on sexual
orientation and gender identity, In pursuit of its human rights goals, France
works in partnership with the international community international
organisations and with NGOS both French and forcing. Administrative and
judicial courts will decide upon the matters of fundamental rights and freedom
of individuals. In

addition to this, there is Constitutional Council which in check in to the

constitutional validity of the laws passed through the review process. In 1947,
National Consultative commission on Human Rights was created was French
national human rights institution. They conduct wide discussion in the matters
of human rights, humanitarian law and action and fight against racism with
government, Parliament, institutions and civil society. From 2011 to 2016,
France always remains an active member of Human Rights Council and
continues as an observer country. It ensures to stringent mechanism of the HCR
and tries to counter all the activities that affect the universality of human rights.
As a positive impact in 2021 to 2023, France is presenting its candidacy to the
HCR for protecting human rights and to promote effective humanist diplomacy.
France in particularly engaged in the fight against the recruitment of child
soldiers, forced disappenrances, respect for women's rights, freedom of
expression and protection of journalists and the fight against discrimination
based on sexual orientation and gender identity, France is also fully mobilized
in the fight to abolish the death penalty. In New York, it promotes the adoption
of a General Assembly resolution calling for the establishment of a universal
moratorium on the death penalty’s defend its priorities, France commits to
support and natively contribute to all human rights protection mechanisms and
committees and continue its action for the fight against impunity, so that those
responsible of violations be held accountable and brought to justice.
 298

Administrative and judicial courts will decide upon the matters of fundamental
rights and freedom of individuals. In addition to this, there is Constitutional
Council which can chock in to the constitutional validity of the laws passed
through the review process. In 1947, National Consultative commission on
Human Rights was created as French national human rights institution. They
conduct wide discussion in the matters of human rights, humanitarian law and
action and fight against racism with government, Parliament, institutions and
civil society. They also check in to national as well as international cases. There
is institutional ombudsperson: Defender of Rights, an independent institution
which is enshrined with the tasks like defending individual rights and freedoms
in the context of reignitions with the authorities, defending and promoting the
best interests and rights of children, combating discrimination prohibited by law
and promote equality and ensuring compliance with ethics by persons engaged
in security activities. National Data Protection Authority. Controller -General of
Pinces of detention are the specialized agencies working to access justice to the
citizens

In Dupuis v. France (2007) enne, expands expression by finding that the

conviction of formalists for the publication of information likely obtained
illegally and the imposition of a modernte fine constituted a violation of Article
10. In so doing, the Court emphasized the importance of a free press and the
role it plays in n democratic society as a social watchdog in contributing to
matters of public interest, in particular important political debate. The Europenn
Court of Human Rights (ECHR) held that there had been a violation of Article
10 in circumstances where journalists hnd been convicted and fined for
disseminating information obtained illegally but where that information was in
the public interest, on a matter of political debate and about a public figure, The
Court reiterated that interference with freedom of expression might have a
chilling effect on the exercise of that freedom, an effect that would not be
negated by the imposition of even a moderate fine

From 2011 to 2016, France always remains an active member of Human Rights
Council and continues as an observer country. It ensures to use stringent
mechanism of the HCR and tries to counter all the activities that affect the
universality of human rights. As a positive impact in 2021 to 2023, France is
presenting its candidacy to the HCR for protecting human rights and to promote
effective humanist diplomacy.

Human rights are de are defined as the inalienable rights of all human beings,
irrespective of nationality, place of residence, gender, ethnic or national origin,
colour, religion, language or any other status, and cover a multitude of themes,
The protection of human rights, as enshrined in the Universal Declaration of
Human Rights, is central to the work of the United Nations, which asserts that
 299

these rights nre universal, indivisible, and interdependent and interrelated (UN
World Conference on Human Rights). These rights form part of the founding
values of the French Republic was proclaimed in the preamble to the French
Constitution. Respect for human rights is central the exercise of democracy in
France and to our is central to the commitment as a member of the European
Union and of international organisations.

There are various issues in the protection of human rights and fundamental
rights in France. The authorities disproportionately restrict the right to freedom
of peaceful assembly. Thousands of protesters suffered injuries at the hands of
police or were arrested and prosecuted on flimsy grounds or offences that aro
protected under human rights law and standards. Human rights observers,
independent journalists, environmental activists and activists defending the
rights of refugees and migrants, were subjected to frequent police intimidation
and harassment.

EMERGENCY POWERS--INDIA

A state of emergency in India refers to a period of governance that can be

proclaimed by the President of India during certain crisis situations. Under the
advice of the cabinet of ministers, the President can overrule many provisions of
the Constitution, which guarantees Fundamental Rights to the citizens of India.
The emergency provisions are contained in Part XVIII of the Constitution of
India, from Article 352 to 360. These provisions enable the Central government
to meet any abnormal situation effectively. The rationality behind the
incorporation is to safeguard the sovereignty, unity, integrity and security of the
country, the democratic political system and the Constitution.

The Constitution stipulates three types of emergencies-

1. National Emergency

2. Constitutional Emergency
 300

3. Financial Emergency

NATIONAL EMERGENCY

▪ National emergency can be declared on the basis of war, external

aggression or armed rebellion. The Constitution employs the
expression ‘proclamation of emergency’ to denote an emergency of
this type.

▪ Grounds of declaration:

1. Under Article 352, the president can declare a national emergency

when the security of India or a part of it is threatened by war or
external aggression or armed rebellion.

2. The President can declare a national emergency even before the

actual occurrence of war or armed rebellion or external aggression

3. When a national emergency is declared on the grounds of ‘war’ or

‘external aggression’, it is known as ‘External Emergency’. On the
other hand, when it is declared on the grounds of ‘armed
rebellion’, it is known as ‘Internal Emergency’.

This term ‘armed rebellion’ is inserted from the 44th amendment. Before this
term it was known as internal disturbance.

Parliamentary approval and duration -

The proclamation of emergency must be approved by both the houses of

parliament within one month from the date of its issue. However, if the
proclamation of emergency is issued at a time when the Lok Sabha has been
dissolved or the dissolution takes place during the period of one month without
approving the proclamation, then the proclamation survives until 30 days from
 301

the first sitting of Lok Sabha after its reconstitution, provided the Rajya Sabha
has in the meantime approved it. If approved by both the houses, the
Emergency continues for 6 months and can be extended to an indefinite period
with an approval of the Parliament for every six months. Every resolution
approving the proclamation of emergency or its continuance must be passed
by either House of Parliament by a special majority.

Revocation of proclamation -

A proclamation of Emergency may be revoked by the President at any time by

a subsequent proclamation. Such proclamation does not require parliamentary
approval. The emergency must be revoked if the Lok Sabha passes a resolution
by a simple majority disapproving its continuation.

Effects of national emergency -

A proclamation of Emergency has drastic and wide-ranging effects on the

political system. These consequences can be grouped into 3 categories:

1. Effects on the centre-state relations: While a proclamation of Emergency is

in force, the normal fabric of the Centre-State relations undergoes a basic
change. this can be studied under three heads

• Executive: Centre becomes entitled to give executive directions to a

state on ‘any’ matter
• Legislative: The parliament becomes empowered to make laws on
any subject mentioned in the state list, the president can issue
ordinances on State subjects also, if the parliament is not in session.
The laws made on state subjects by the parliament become
inoperative six months after the emergency has ceased to be in
operation.
 302

• Financial: the president can modify the constitutional distribution of

revenues between the centre and the states.

Effect on the life of the Lok Sabha and State Assembly:

• While a proclamation of National Emergency is in operation, the life

of the Lok Sabha may be extended beyond the normal term for one
year at a time. However, this extension cannot continue beyond a
period of six months after the emergency has ceased to operate.
• Similarly, the Parliament may extend the normal tenure of a state
Legislative Assembly by one year each time during a national
emergency, subject to a maximum period of six months after the
emergency has ceased to operate.

Effect on fundamental rights: Articles 358 and 359 describes the effect of a
National Emergency on the Fundamental Rights.

1. Suspension of Fundamental rights under Article 19: According to Article

358, when a proclamation of National Emergency is made, the six
fundamental rights under article 19 are automatically suspended. Article 19
is automatically revived after the expiry of the emergency.
2. The 44th Amendment Act laid out that Article 19 can only be suspended
when the National Emergency is laid on the grounds of war or external
aggression and not in the case of armed rebellion.

3. Suspension of other Fundamental Rights: Under Article 359, the President

is authorised to suspend, by order, the right to move any court for the
enforcement of Fundamental Rights during a National Emergency.
Thus, remedial measures are suspended and not the Fundamental Rights.

4. The suspension of enforcement relates to only those Fundamental Rights

that are specified in the Presidential Order. The suspension could be for
the period during the operation of emergency or for a shorter period. The
 303

Order should be laid before each House of Parliament for approval. The
44th Amendment Act mandates that the President cannot suspend the right
to move the court for the enforcement of Fundamental Rights guaranteed
by Article 20 and 21.

President’s Rule

▪ Article 355 imposes a duty on the centre to ensure that the government
of every state is carried on in accordance with the provisions of the
constitution.

▪ It is this duty in the performance of which the centre takes over the
government of a state under Article 356 in case of failure of
constitutional machinery in a state.

▪ This is popularly known as ‘President’s Rule’.

▪ Grounds of imposition: the president’s ruler can be proclaimed under

Article 356 on two grounds:

1. Article 356 empowers the President to issue a proclamation if

he is satisfied that a situation has arisen in which the
government of a state cannot be carried on in accordance with
the provisions of the constitution.

2. Article 365 says that whenever a state fails to comply with or

to give effect to any direction from the centre, it will be lawful
for the President to hold that a situation has arisen in which
the government of the state cannot be carried on in
accordance with the provisions of the constitution.

▪ Parliamentary approval and duration: A proclamation imposing

president’s rule must be approved by both the houses of parliament
 304

within two months from the date of its issue. However, if the
proclamation of President’s rule is issued at a time when the Lok
Sabha has been dissolved or the dissolution of the Lok Sabha takes
place during the period of two months without approving the
proclamation, then the proclamation survives until 30 days from the
first sitting of the Lok Sabha after its reconstitution, provided that the
Rajya Sabha approves it in the meantime

▪ Consequences of the President’s rule: The President acquires the

following extraordinary powers when the President’s rule is imposed
in a state:

1. He can take up the functions of the state government and

powers vested in the governor or any other executive
authority in the state.

2. He can declare that the powers of the state legislature are

to be exercised by the parliament.

3. He can take all other necessary steps including the

suspension of the constitutional provisions relating to
anybody or authority in the state.

Financial Emergency

Grounds of declaration: Article 360 empowers the president to proclaim a

Financial Emergency if he is satisfied that a situation has arisen due to which
the financial stability or credit of India or any part of its territory is threatened.

Parliamentary approval and duration: A proclamation declaring financial

emergency must be approved by both the Houses of Parliament within two
months from the date of its issue.
 305

However, if the proclamation of Financial Emergency is issued at a time when

the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes
place during the period of two months without approving the proclamation,
then the proclamation survives until 30 days from the first sitting of the Lok
Sabha after its reconstitution, provided the Rajya Sabha has in the meantime
approved it. Once approved by both the houses of Parliament, the Financial
Emergency continues indefinitely till it is revoked.

Effects of Financial Emergency

▪ Extension of the executive authority of the Union over the financial

matters of the States.

▪ Reduction of salaries and allowances of all or any class of persons

serving in the State.

▪ Reservation of all money bills or other financial bills for the

consideration of the President after they are passed by the legislature
of the State.

▪ Direction from the President for the reduction of salaries and

allowances of all or any class of persons serving the Union; and the
judges of the Supreme Court and the High Courts.

Criticism of the Emergency Provision

▪ Some members of the Constituent Assembly criticised the

incorporation of emergency provisions in the constitution on the
following grounds:

1. The federal character of the constitution will be destroyed and the union will
become all-powerful
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2. The powers of the State- both the Union and the Units- will entirely be
concentrated in the hands of the union executive.

3. The president will become a dictator

4. The financial autonomy of the state will be nullified

5. Fundamental rights will become meaningless and, as a result, the democratic

foundation of the constitution will be destroyed.’

France – emergency power

The State of Siege

The state of siege was originally based on two Acts of 1849 and 1878. It has been
introduced in the French Constitution in 1958, at Article 36:

“The state of siege is decreed in the Council of Ministers. Its extension beyond
twelve days can only be authorized by Parliament.”

The 1849 and 1878 Acts have been repealed and replaced by a 2004 Ordinance
(delegated legislation) which codified the state of siege in the Code of Defence.
The triggering of the state of siege is subject to the existence of “imminent danger
resulting from a foreign war or an armed insurrection.” The state of siege is an
emergency regime of a military nature: as soon as the state of siege is decreed,
the powers with which the civilian authority is invested for the maintenance of
order and police are transferred to the military authority. It has not been used in
France since the second World War.

Article 16 of the French Constitution

According to Article 16 of the French Constitution, where

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“the institutions of the Republic, the independence of the Nation, the integrity of
its territory or the fulfilment of its international commitments are under serious
and immediate threat, and where the proper functioning of the constitutional
public authorities is interrupted”,the President of the Republic “shall take
measures required by these circumstances”, including measures on matters which
are ordinarily reserved to the Parliament. There is no substantial limitation apart
from the requirement that they “shall be designed to provide the constitutional
public authorities as swiftly as possible, with the means to carry out their duties”,
which is extremely vague.

The State of Emergency

The State of Emergency Act has been adopted by the French Parliament on the
3rd April 1955. It has been activated several times during the Algerian war (1955,
1958, 1961), secessionist movements in New Caledonia (1984), riots in the
suburbs of Paris (2005) and, finally, following the terrorist attacks in Paris (2015)
until the 1st November 2017. Activating the state of emergency implies the
existence of an “imminent danger resulting from serious breaches of public order
or events which, because of their nature or severity, constitute public calamities”.
The state of emergency is declared by decree in the Council of Ministers (i.e.
signed by the President of the Republic). It cannot be extended beyond twelve
days without the authorization of the Parliament.

The Exceptional Circumstances Doctrine

The exceptional circumstances doctrine is not a textual but a jurisprudential

regime. It appeared, under the name of “war powers doctrine”, in two rulings
related to the circumstances of World War I (Council of State, 28 June
1918, Heyriès and Council of State, 28 February 1919, Dol et Laurent).
According to this doctrine, in the presence of exceptional circumstances (for
example war, insurrection or natural disaster), a decision or action of the
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administration which would normally be considered illegal can be considered

legal if a) the administration has been unable, due to exceptional circumstances,
to act in accordance with the law b) it acted in consideration of an essential public
interest and c) the breach of the principle of legality is proportionate to the other
interests at stake. Administrative courts assess these conditions on a case-by-case
basis.

2 years and less than 5 months after the end of the two-year state of emergency
triggered on the wake of the 2015 terrorist attacks in Paris, a brand new “state of
health emergency” was activated in France on the 23rd March to cope with a new
attack Covid-19.

UK -emergency

The Parliament passed the Emergency Powers Act 1920 (EPA1920) to give the
executive emergency power to forestall the inhibition of a community's access to
the "essentials of life, empowering the government to counter "major strikes, civil
disorders and pre-revolutionary situations." The act was introduced by Parliament
in the midst of a miners' strike. However, as much as the EPA 1920 was
demanded by the representatives of certain parts of the country, it faced
substantial opposition from many other legislators. The dramatic division in
public sentiment is likely the reason why the emergency powers created were far
less extensive than those afforded to the government during the wars in 1914 and
1939. Under the EPA 1920, the executive was again vested with the power to
create regulations after declaring a state of emergency, this time to "restore order
and maintain supplies" whenever it appeared "to the government that the essential
services of the country" were threatened by "any action that has been taken or is
immediately threatened by any persons or body of persons. As was true in the
later EPA, the subjective element of this prescription vastly diminished the
potential scope for judicial review of the executive's actions. Parliament,
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however, perhaps having already learned its lessons from DORA, implemented
several watchdog functions. Though it could not directly annul a regulation, any
regulation which Parliament did not approve within seven days would have
become void. The EPA 1920 was activated 12 times before it was replaced in
2004 by the Civil Contingencies Act (CCA). The CCA again allows the executive
to create regulations, if it is "satisfied [the regulations are] appropriate for the
purpose of preventing, controlling or mitigating an aspect or effect ' of an
emergency that "has occurred, is occurring or is about to occur. This is clearly
another set of subjective criteria, limiting supervision by the judiciary.

Under this legislation, the term "emergency" encompasses war, terrorism, or any
other event or situation that "threatens serious damage" in the form of loss of
human life, human illness or injury, damage to property, the disruption of
communication, transportation, the supply of food or fuel, etc. Parliament
continues to play an important role because regulations will lapse after seven days
if not approved, and may be annulled or amended subsequently.

United States-Emergency

U.S. Constitution itself includes no comprehensive separate regime for

emergencies. Those few powers it does contain for dealing with certain urgent
threats, it assigns to Congress, not the president. For instance, it lets Congress
suspend the writ of habeas corpus—that is, allow government officials to
imprison people without judicial review—“when in Cases of Rebellion or
Invasion the public Safety may require it” and “provide for calling forth the
Militia to execute the Laws of the Union, suppress Insurrections and repel
Invasions.”

Some legal scholars believe that the Constitution gives the president inherent
emergency powers by making him commander in chief of the armed forces,
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or by vesting in him a broad, undefined “executive Power.” Article I S8 of the

Constitution gives the Congress extensive powers relating to war and other
military action, which might be listed in three categories: (a) to declare war; (b)
to raise and support armies, to provide and maintain a navy, and to make rules for
the government and regulation of the land and naval forces; and (c) to provide for
calling forth the militia (generally a state responsibility) for three specified
purposes: (i) to execute the laws of the Union, (ii) to suppress insurrections, and
(iii) to repel invasions. Article II, which vests the Executive Power in the
President, also specifically makes him the Commander in Chief of the army and
navy, as well as of the militia when called into actual federal service (S 2), and
charges her, among other things, with taking care that the laws be faithfully
executed (S 3). In addition to these allocations of responsibility to particular
branches of the federal government, the Constitution contains one other
empowering provision relating to similar circumstances, namely Article IV S 4,
the so-called "guaranty clause", which calls on the federal government not only
to guarantee to every state a republican form of government, but also to protect it
against invasion and domestic violence.

At key points in American history, presidents have cited inherent

constitutional powers when taking drastic actions that were not authorized—
or, in some cases, were explicitly prohibited—by Congress. Notorious
examples include Franklin D. Roosevelt’s internment of U.S. citizens and
residents of Japanese descent during World War II and George W. Bush’s
programs of warrantless wiretapping and torture after the 9/11 terrorist
attacks. Abraham Lincoln conceded that his unilateral suspension of habeas
corpus during the Civil War was constitutionally questionable, but defended
it as necessary to preserve the Union.

The Supreme Court has often upheld such actions or found ways to avoid
reviewing them, at least while the crisis was in progress. Rulings such
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as Youngstown Sheet & Tube Company v. Sawyer, in which the Court

invalidated President Harry Truman’s bid to take over steel mills during the
Korean War, have been the exception. And while those exceptions have
outlined important limiting principles, the outer boundary of the president’s
constitutional authority during emergencies remains poorly defined.

Presidents can also rely on a cornucopia of powers provided by Congress,

which has historically been the principal source of emergency authority for
the executive branch. Throughout the late 18th and 19th centuries, Congress
passed laws to give the president additional leeway during military, economic,
and labor crises. A more formalized approach evolved in the early 20th
century, when Congress legislated powers that would lie dormant until the
president activated them by declaring a national emergency. These statutory
authorities began to pile up and because presidents had little incentive to
terminate states of emergency once declared, these piled up too. By the 1970s,
hundreds of statutory emergency powers, and four clearly obsolete states of
emergency, were in effect. For instance, the national emergency that Truman
declared in 1950, during the Korean War, remained in place and was being
used to help prosecute the war in Vietnam.

Aiming to rein in this proliferation, Congress passed the National

Emergencies Act in 1976. Under this law, the president still has complete
discretion to issue an emergency declaration but he must specify in the
declaration which powers he intends to use, issue public updates if he decides
to invoke additional powers, and report to Congress on the government’s
emergency related expenditures every six months. The state of emergency
expires after a year unless the president renews it, and the Senate and the
House must meet every six months while the emergency is in effect “to
consider a vote” on termination .