ELEMENTS OF JURISPRUDENCE

PROJECT REPORT ON: PUBLIC LAW IN INDIAN LEGAL SYSTEM
Submitted to: Abhik majumdar Submitted by: Sourav chandan padhi BBA.LLB(H) Roll no 51 1st Semester

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Conclusion 7-Bibliography 3 4 5 7 10 13 14 2|Page .Introduction 2-Methodology 3-Development of Indian Legal system 4-Provisions of Constitution of India (like fundamental rights) 5-Change in trends of Judicial decision after Maneka Gandhi’s case 6.ELEMENTS OF JURISPRUDENCE CONTENTS 1.

Union of India A. 5 Olga Tellis v. 7 Bhim Singh v. 180. 1986 S.I.ELEMENTS OF JURISPRUDENCE Table of Cases 1 Cocks v Thanet District council 2 case of Golaknath AIR 1967 SC 1643 3 Basheshar Nath v Commissioner of Income Tax. Union Territory of Delhi A.R.R. 1981 3|Page .I.I.C. 1086.P. 10 Joginder Kumar v. Delhi and Rajasthan and Another.C.C. State of Jammu and Kashmir.R. A. 1959 AIR(SC) 149 4 Maneka Gandhi v. 1978 S. 1987 S. 1985 (4) SCC 677 8 M.R.C. Bombay Municipal Corporation A.C. 597. 9 Francis Coralie Mullin v. 746.R. State of U. 1981 S. Union of India. State of Bihar A.Mehta v.I. L. Administrator.I. 1983 S. 6 Rudal Shah v. 1086..C. 1994 Cr. J.

and duties of administrative authorities. but today . The distinction has never been clearly marked. However in recent years a distinction of a different kind has emerged in our system .public law is mere embryo .It is based not on differences between courts or rules of law but rather on the different procedure to be used where the purpose of the case is to enforce the public duties of state agency rather than to enforce the private rights of a citizen 1. we find that the sphere of private law is diminishing . public law would cover all the instruments of production . In a community where the ideal of state socialism was realized. Constitutional law deals with the distribution of legal power and of the functions of the organs of the state.According to Lord Bacon “that it is a true and received division of law into ius publicum and ius pri-vatum. The test of public and private interest is not sufficiently precise-the whole doctrine of public policy depends on a concept of public interest .the one being sinews of property .for no clear line can be drawn between private and public capacities of the king.” Private Law. where as public law is the realm of political domination. Administrative law deals with rules which determine the organisation. where the state has no intervention. Until and unless the state itself develops.ELEMENTS OF JURISPRUDENCE Introduction Public Law – It is the law which deals with the relation between the state and the person.and the other of government. According to kelsen the traditional distinction between public and private law is that private law deals with co-ordination and the relation between equals .In the days of laissez-faire such a criterian wouldnot give too great a scope to public law. yet much of it undoubtedly belongs to private law. with the entry of the state into business world.In French Legal system private law and public law are subjected to different rules and jurisdiction. But where as in Indian Legal system there is no distinction between private and public law.It is the law which deals with the relation between person and person. powers. The divisions of public law are constitutional law and administrative law . 1 Distinction can be illustrated in the case of Cocks v Thanet District council 4|Page . Even in the days of feudalism there is much confusion.

Since Public law is vast topic therefore I would deal with Indian judiciary and its judicial activism for the development of Indian legal system. For this purpose I have taken help from many sources.Lastly I would like to illustrate How Indian legal system or judiciary has been active in protecting the fundamental rights of the citizen of India. with special reference to constitutional law ? 5|Page .i have also collected my research materials from many websites. Scope of Research -: The research is basically looking at constitution law and not looking to other aspects of Public law like the Administrative law or the Criminal law.Then How the Constitution of India prevents Public law being exploitated in India .I have also referred to some secondary sources as in articles and books.ELEMENTS OF JURISPRUDENCE Methodology Objective -: The main objective of my research is to study Public law in Indian legal system by viewing historical development of Constitution law and administrative law in India.The method followed by me for the research is completely doctrinal. Research Question -: How public Law has developed in Indian legal system.I have taken help of both primary and secondary resources.Some of primary sources include Indian constitution law.

impartial.It is so cumbersome also that it takes years to 2 Indira Gandhi National Open University. Another critism of judicial system in India was its costliness and time consuming .we have the Supreme court . fair and real protector of the rights and liberties of the citizens. In India . it provided a vast scope for the judiciary to exercise judicial discretion . we have a single integrated system of courts for the union as well as .e.equality of all citizens before the law and a person being innocent unless committed by a court of law .below the supreme court we have high courts of the different states .stable & Predictable.It is the third organ of the government and is charged with deliverance of justice to the aggrieved party. as independent .In the case of Golaknath3 of 1967 of supreme court declared that parliament has no power to amend the Constitution.Roleof jjudiciary.The normal judicial process in India is so costly that the poor just cannot enter the courts.ELEMENTS OF JURISPRUDENCE Chapter -1 activism Development of Indian Legal system through judicial RQ-How Indian Legal system developed through judicial activism? An impartial judiciary is a sine-qua-non for the smooth functioning of a political system . In India . we have a unified structure of the judiciary despite the fact that our Constitution is quasi-federal .In modern democratic political system is known as open. unbiased .for this the judiciary also may not necessarily follow the established or prescribed procedure of litigation.to protect the interests of the people .egyankosh. The judiciary operates in accordance with direction of rule of law i. these are the courts which are sub-ordinate to high court.2 Judicial Activism Judicial activism thus means the judiciary’s pronouncement in matters of general social interest or welfare even though these may not be considered in its jurisdiction. but there is seldom a deliberate attempt on the part of the state abrogate the usual process and procedure of justice .Which are called subordinate courts.available at http://www.At the apex.ac. The judiciary’s frequent pronouncements on the parliament’s power on the grounds of infringement of individuals rights not taking into account the social interests and directive are called as judicial activism . Some times.The judiciary does not have alternative in the present society. the judiciary is taken largely .such judicial system believes in the fairness and openness of proceedings .pdf 3 AIR 1967 SC 1643 6|Page .Since the Constitution doesnot lay down any principle guideline for constitutional interpretation to be followed by the courts.also .in/bitstream/123456789/31670/1/Unit10. According to the traditional understanding of law .This was a negative sense of the term. under each high courts there is a hierarchy of other courts.Under our Constitution .consistent . the states which administer both union and state laws.

The significant outcomes of these development were the system of public Interest Litigation (PIL) Lok adalats & Legal Aid.Both the Doctrine of superiority of fundamental rights over directive principles and costly judicial system favours only the rich and deprives the poor from being taken care. avoidance of lawyer and court fee.The purpose was that the cases of the poor .The purpose of lok adalts is to make the process of dispute settlement simple and cheap .is a method of settlement of disputes which are not of very serious in nature are settled by mutual agreements between parties .on account of their poverty . started reforming its own procedural & jurisdictional rules.The arbitrators attempt to settle the disputes an the basis of facts and document .Public interest litigation means that where the poor who . Lok adalats cannot pronounce judgement on criminal cases. any member of the public or a social action group can approach the court on behalf of them .pdf 7|Page . who lacked both resources and awarenwss .Any member of public can file a PIL where there is public injury and breach of public duty. cannot approach the courts incase of the denial of their rights.The Lok adalat system . In 1990s the courts have gone a step further .in early 1980s . 4 National Institute of Open Schooling.They themselves have started taking certain issues on the basis of newspaper reports on their own.The settlements of disputes out of court.the executive and legislature have acted more in cooperation . fixation and payment of maintenance. emphasis an reconciliation.So there was pressure for reforms in the legal system. Then court itself initiates case pronounces a decision and directs the appropriate authorities to act accordingly.org/317courseE/L16%20JUDICIAL%20ACTIVISM.The help of arbitrators who have the necessary knowledge and competence to understand and settle the disputes is made available. The supreme court . Public Interest Litigation (PIL) There emerged a new substitute in judiciary orientation . could be brought to the courts for redreesal. There was increasing pressure from social action groups on behalf of the underprivileged and deprived section of society for the fulfilment of their aspiration. In bringing about this reform judiciary . care of children etc are settled by lok adalats. social disability or lack of awareness .Disputes like divorce .4 Lok Adalat The other area of development in judiciary system was the introduction of the institution of Lok adalats .available at http://nos.Whatever the court fee may be it is relaxed. Judicial Activism.ELEMENTS OF JURISPRUDENCE get justice.

pdf 8|Page .5 5 National Institute of Open Schooling. Judicial Activism.ELEMENTS OF JURISPRUDENCE Legal aid movement As a step towards making the legal system serve the poor and deprived.Directive principle (Art 39A ) directs the state to provide for equal justice and legal aid .The Supreme court has given a positive and broad interpretation . 1) Spread of legal awareness through programme of legal literacy 2) Organisation of the poor and the exploited with a view to building up pressure for enactment and implementation of egalitarian laws 3) Providing legal services to the poor and deprived people 4) Fighting court battles either through social action litigation or through tradition forms to obtain justice for the deprived .available at http://nos.org/317courseE/L16%20JUDICIAL%20ACTIVISM.the judiciary has also taken active interest in providing legal aid to the needy.

It provides for the continuity of executive power .and the machinery of law-making. The only two major features of the Act were that the act 6 T. the precursor of the new Indian renaissance.In other words .It regulates the composition of the council of state .Before the advent of the constitution .Constitution law deals with the functioning of different organs of the constitution very minutely.become effective on January 26th 1950.It describe about the process of election to lower and upper house and the tenure of representatives.lest it come to dominate our lives and interests. The definition of sovereign power in a state necessarily leads to the consideration of its constituent parts.India was governed by the government of India act 1935.sovereignty of the British crown prevailed over the country and it was in the exercise of this sovereignty that the british Parliament had enacted the Act 1935.India was part of the British Empire .Since it is the source of law ." Patrick Henry The primary function of constitutional law is to ascertain the political centre of gravity of any given state. It announces in what portion of the whole is to be found the “internal sovereignty”.HOLLAND.6 Historical perspectives of constitution of India The constitution of India.It prescribes the order of succession to the throne.The function of state goes farbeyond mere presentation of internal order and external independence .its act can never be illegal.it defines the form of government. The distinction between legislative . ‘supremepotestas’.the mode of electing a president. or in a Republic . and these are conveniently classed as executive function.ELEMENTS OF JURISPRUDENCE Chapter-2 Fundamental Rights are Integral Part of Indian Constitution RQ-How fundamental rights affected the relation between state and citizen ? "The Constitution is not an instrument for the government to restrain the people.E .It is also necessary to alter from time to time the existing law and this is a distinct function of the legislative.and of the upper and lower houses of the assembly.executive and judiciary functions.It is expected to promote social and economic ends of every kind .ELEMENTS OF JURISPRUDENCE 370(13th ed.2007) 9|Page . It also mentions about the powers and privileges of the assembly as a whole. it is an instrument for the people to restrain the government -. ‘Staatsgewalt’.

Fundamental rights The Indian Constitution guarantees to the people certain basic human rights and freedoms. in Arts. irrespective of caste.It is under this fundamental law that all laws are made and executed .in substance . A legislative cannot make a law and a govt agency cannot act . freedom of worship and religion. But unless and until we find the limitations on such fundamental rights enacted in the very provisions of the Constitution. freedom to move freely and to reside and settle anywhere in India .it can declare any act of the state invalid if its contradicts the constitution. This has several significant implications.This function of the judiciary entitles it to be called as guardian of the constitution .freedom of person .The judiciary is obligated to see that the provisions of constitution are not violated by any governmental organ. constitute inhibitions on the legislative and executive organs of the state . economically. freedom of speech and expression .g. Delhi and Rajasthan and Another.The Constitution provides a machinery in Arts 32 and 226 for the reinforcement of rights. there is no justification whatever for importing any notions from the United States of America or the authority of cases decided by the Supreme Court there in order to whittle down the plenitude of the fundamental rights enshrined in Part III of our Constitution. The limits on those rights have been enacted in the Constitution itself. educationally and politically.contrary to the constitution. socially.. colour.all government authorities act and the validity of their functioning adjudged.INDIAN CONSTITUTIONAL LAW 15 (5th ed 2009) Basheshar Nath v Commissioner of Income Tax.8 7 8 M.trade or business. Any law or the action of executive can infringe the fundamental rights.Ours is a nascent democracy and situated as we are.ELEMENTS OF JURISPRUDENCE conferred only a very limited right of self government on the Indians. 1959 AIR(SC) 149 10 | P a g e . These rights . creed and religion to all citizens .7 They give emphasis to fundamental unity of the country by guaranteeing the access and use of the same facilities. The Constitution of India being written constitutes the fundamental law of the land . it is the sacred duty of the Supreme Court to safeguard the fundamental rights which have been for the first time enacted in Part III of our Constitution. e.freedom to follow any occupation .JAIN.P. 19.A person can claim Fundamental rights against the state subject to the state imposing some permissible restrictions in the interest of social control.These restriction are also mentioned in the Constitution.equal protection of laws. The executive authority of province was vested in the governor appointed by the crown.the Constitution demarcates an area of individual freedom and liberty where the state cannot interfere.such as inter alia.the Constitution thus conditions the whole governmental process in the country . freedom of assembly and association. 33 and 34.

Olga Tellis v. Chapter -3 Case laws RQ. 11 | P a g e 10 . 597.C. In the post–Maneka period court’s activism blossomed and flourished. 9 Maneka Gandhi v.I. the legislature and the executive. The Supreme Court.R. Thereafter.These rights are similar to those of England’s Bills of Rights. 1978 S. the Supreme Court has made a positive contribution in this fertile field. His letter to the Supreme Court was treated as writ petition and the court granted interim relief to pavement dwellers.I. Bombay Municipal Corporation10. in its anxiety to protect human rights.How the trend of judicial decision have been changing after the Maneka Gandhi case? By playing a vital role in the task of protecting fundamental rights. Union of India. Bombay Municipal Corporation A. The Constitution does not confer such omnipotent power on the Judiciary. just. has at times undertaken the roles of both organs of the government. 1986 S. fair and reasonable and not arbitrary fanciful and oppressive’. there appeared era of progressive judicial activism for protection of human rights. A. The turning point came in 1978 in Maneka Gandhi’s case9 when the Supreme Court held that any state action affecting life and liberty of a person has to be ‘right. 180. one Journalist of Bombay claimed relief against demolition of hutments of pavement dwellers by the Municipal Corporation of Bombay.The United nations Bill of Rights and France’s declaration of the rights of men. In Olga Tellis v.R.C. A new trend was set in Maneka Gandhi’s case.ELEMENTS OF JURISPRUDENCE The different Fundamental Rights the Constitution provides the Indian citizen are 1)Right to freedom 2)Right to equality 3)Right to freedom of religion 4)Right to freedom from exploitation 5)Cultural and educational rights 6)Right to Constitutional remedies These Fundamental rights have been conceived in a liberal spirit and seek to draw a reasonable balance between individual freedom and social control.

the Supreme Court held that the power of the Court under Article 32(1) is not only injunctive in nature.000 as monetary compensation by way of exemplary costs to the petitioner to compensate him.C. The ‘appropriate cases’ are those cases where the infringement of fundamental right is gross and patent. The Court awarded Rs. But the judiciary has evolved a right to compensation in cases of illegal deprivation of personal liberty.ELEMENTS OF JURISPRUDENCE There is no express provision in the Constitution of India for grant of compensation for violation of a fundamental right to life and personal liberty.R. that is. The Court granted monetary compensation of Rs. the Court observed that when there is mala fide arrest.Mehta v. 1086. State of Jammu and Kashmir.Mehta v. the invasion of constitutional or legal right is not washed away by his being set free and in ‘appropriate cases’ the Court has jurisdiction to compensate the victim by awarding suitable monetary compensation. In another case12. 12 | P a g e .I.C.C. ignored the technicalities while granting compensation. State of Bihar A.50. State of Bihar11 is an instance of breakthrough in Human Rights Jurisprudence. 11 12 .I.C.35. 1985 (4) SCC 677 13 M. preventing the infringement of a fundamental right. 1987 S. The power of the Court to grant such remedial relief may include the power to award compensation in appropriate cases. In M. Rudal Shah v. 1086.000 against the Bihar Government for keeping a person in illegal detention for 14 years even after his acquittal. a member of the Legislative Assembly of Jammu and Kashmir was arrested by the police mala fide and he was not produced before the Magistrate within the required time. 1983 S. The Court departed from the traditional approach. Union of India13.R. Rudal Shah v. Holding that his fundamental rights under Article 21 and 22 (1) were violated. but it is also remedial in scope. Bhim Singh v. Union of India A. 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.

C. while elaborating the scope of the right guaranteed under Article 21 observed in Francis Coralie Mullin v. Administrator. clothing and shelter and facilities for reading. 746.R. Except in heinous offences. writing and expressing oneself in diverse forms.15 14 15 Francis Coralie Mullin v. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. Union Territory of Delhi14 that right to life cannot be restricted to mere animal existence.P. an arrest must be avoided. L. In the opinion of the Supreme Court no arrest can be made because it is lawful for the police officer to do so. Union Territory of Delhi A. 1981 13 | P a g e . the bare necessities of life such as adequate nutrition.ELEMENTS OF JURISPRUDENCE The Supreme Court. He should be allowed greater freedom than allowed to an undertrial or a convict as he stands on the higher rung of the ladder. Right to life includes the right to live with human dignity and all that goes along with it. 1981 S. The Supreme Court ruled that the detenu should be treated with more humanity and dignity than the undertrial or a convict. The existence of the power to arrest is one thing. Joginder Kumar v.. Administrator. freely moving about and mixing and co-mingling with fellow human beings. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified.I. namely. State of U. It means something more than just physical survival. 1994 Cr. J. The justification for the exercise of it is quite another.

It does not impose any rule on the citizen of India .These were drawn from the universal Human rights declared by united nation.These rights go much beyond American Bill’s of rights and France’s declaration of rights of men.ELEMENTS OF JURISPRUDENCE Conclusion India incorporated a number of basic Human rights as guaranteed fundamental rights.expansion and flexibility .these rights are adopted by the partIII of our constitution.it can be amended as per the time demands .Though Indian Constitution is rigid . 14 | P a g e .but has dynamism . The fundamental rights are very much required for the development and welfare of citizen of India.However .Its the need hour to have balance between Judicial activism and judicial self-possession.Hence public law in Indian legal system is an important aspect for development of the nation .If fundamental rights are infringed then they can be challenged in the court and various writs are issued according to the infringement.in the quest for socioeconomic justice the judiciary has been overstepping the limits of judicial function and trespassing the areas of executive and legislative.As we saw the role of judiciary in protection of Human rights is commendable.1948.

ELEMENTS OF JURISPRUDENCE BIBLIOGRAPHY BOOKS M.available at http://www.ELEMENTS OF JURISPRUDENCE 370(13th ed.Roleof jjudiciary.egyankosh.INDIAN CONSTITUTIONAL LAW (5th ed 2009) T.ac.ac.in/bitstream/123456789/31670/1/Unit10.org 5) http://ssrn.in 4) http://www. Judicial Activism.P.2007) WEBSITES 1) National Institute of Open Schooling.pdf 2) Indira Gandhi National Open University.org/317courseE/L16%20JUDICIAL%20ACTIVISM.du.available at http://nos.org 15 | P a g e .archive.JAIN.E .HOLLAND.pdf 3) http://www.library.