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These are the topics for the End Semester Examination of Administrative Law, reliable sources

have been referred to prepare the notes and hopefully it will serve the purpose.
I wish you all the best..
OM NAMAH SHIVAYA

1-Meaning of Estoppel in India


Estoppel in simple words is a bar which prevents a party from asserting a fact or putting up claim
inconsistent with the position he previously took. It is said to be a rule which preludes a person
from saying one thing at one time and another thing, totally inconsistent with the earlier one, at
another stage.
In Blacks New Dictionary, estoppel is indicated to mean that a party is prevented by his own
acts from claiming a right to the detriment of other party who was entitled to rely on such
conduct and has acted accordingly.
According to Oxford Dictionary of Law estoppel is a rule of evidence or a rule of law that
prevents a person from denying the truth of a statement he has made or from denying facts that
he has alleged to exist, The denial must have been acted upon (probably to his disadvantage) by
the person who wishes to take advantage of the estoppel or his position must have been altered as
a result.
As a Rule of Evidence
Estoppel, as a rule of evidence, may be read in distinction to equitable principle of promissory
estoppel. While the former is more correctly described as a principle of law. The latter is
known as a rule of equity. As a principle of law estoppel applies only to representations about
past or present facts.
The basic premise of estoppel is that a person, who by some statement or representation of facts
causes another act in reliance on the truth of it, is not allowed to deny it later, even though it is
wrong.

The principle of estoppel embodies in Section 115 of the Indian Evidence Act, 1872 is
commonly known as a rule of evidence. The Section reads as under: When one person has by his
declaration, act or omission, intentionally caused or permitted another person to believe a thing
to be true and to act on such belief, neither he nor his representatives shall be allowed in any suit
or proceeding between himself and such person or his representative, to deny the truth of that
thing. To invoke the principle of estoppel enshrined in the Section, the following three conditions
are necessarily be satisfied:
(1)there must be a declaration, act or omission on the part of a person;
(ii)by the said declaration, etc., that person must have intentionally caused or permitted another
person to believe a thing to be true; and
iii) he must have intentionally caused or permitted the said another person, to act upon such
belief. Section 115 explains that a party is precluded from denying the existence of some state of
facts which he had previously asserted and on which the other party has relied or is entitled to
rely on. That, a man should keep his words, all the more so when the promise is made with the
intention that the other party should act upon it.
As a rule of evidence, embodied in Section 115, estoppel may lie against the Government on a
representation or statement of facts, if the statement does not operate against the statute. In
Delhi University v. Ashok Kumar:- the respondent, a student after passing the Secondary School
Certificate Examination of the Gujarat Board was admitted provisionally in the B.A. I year
course in the Delhi University. After over a year, the University informed him that he was in
eligible to join the course because the Gujarat Board Examination had been recognised by the
appellate University as equivalent to Matric Examination while the qualification to join B.A. I
year Course was passing the Higher Secondary Examination. However, the Statute had
authorised the Academic Council of the University to grant exemption from the admission
requirements. The High Court of accepted the plea of the estoppel raised by the student against
the University.The Court stated that estoppel was within the meaning of Section 115 of the
EvidenceAct, 1872, might arise from the silence as well as words, the Court held inaction of the
University for over a year amounted to a representation by it that it had approved his admission
and therefore the University would now be estopped from doing that.

In Shri Krishna v. Kurukshetra University


,
the Apex Court had ruled that the University could not cancel the candidature of the appellantstudent for the not complying with the attendance requirement, as the respondents failed to take
the adequate care to scrutinize his examination from at the relevant time to ascertain whether the
candidate fulfilled the necessary conditions
Evolution of Doctrine of Promissory Estoppel
Promissory estoppel is a relatively new development. In order to trace the evolution of the
doctrine in England, we need to refer to some of the English decisions. The early cases did not
speak of this doctrine as estoppel. They spoke of it as raising equity. Lord Cairns stated the
doctrine in its earliest form in the following words in
Hughes v. Metropolitan Railway Company:- It is the first principle upon which all courts of
equity proceed, that if parties who have entered into definite and distinct terms involving certain
legal results afterwards by their own act or with their won consent enter upon a course of
negotiation which has the effect of leading one of the parties to suppose that the strict rights
arising under the contract will not been forced, or will be kept in suspense, or held in abeyance,
the person who otherwise might have enforced those rights will not be allowed to enforce them
where it would be inequitable having regard to the dealings which have thus taken place between
the parties.
This principle of equity made sporadic appearances but it was only in 1947 that it was restated
as a recognized doctrine by Lord Denning in
Central London Properties Trust Ltd.v. High Trees House Ltd who asserted
A promise intended to be binding, intended to be acted upon, and in fact acted upon is binding.
In the formative period the doctrine of promissory estoppel could not be invoked by the pr
omisee unless he had suffered detriment or prejudice. All that is required is that the party
asserting the estoppel must have acted upon the assurance given by him. The alteration of
position by the party is the only indispensable requirement of the doctrine.

In India, there are two stages in the evolution of the application of this doctrine; pre-Anglo
Afghan case and post - Anglo Afghan case. Prior to this case, the position was that promissory
estoppel did not apply against the Government. But the position altered with this case.
In Union of India v. Indo Anglo Afghan Agencies Ltd.:- the Government of India announced
certain concessions with regard to the import of certain raw materials in order to encourage
export of woollen garments to Afghanistan. Subsequently, only partial concessions and not full
concessions were extended as announced. The Supreme Court held that the Government was
estopped by its promise. Thereafter the courts have applied the doctrine of promissory estoppel
even against the Government.
Promissory Estoppel: An Outline
Lord Denning in Central London Property Trust Ltd. v. High Trees House Ltd. expressing the
doctrine stated:
Once a promise has been made by a person knowing that it would be acted upon by the person
to whom it is made and in face it is no acted upon, then it is inequitable to allow the party
making the promise to go back upon it.
In this case, during the Second World War, people left London owing to bombardment and as a
result, a number of flats remained unoccupied. A had left out his flat to B for 99 years at the
rate of 2500 a year. He, however, due to war conditions, agreed to reduce the rent by fifty per
cent. After the war was over, the tenants returned. A demanded full amount of rent to which B
objected relying on As assurance. The Court applied the doctrine of estoppel and granted relief
to B. The doctrine of Promissory Estoppel is premised to be conduct of a party making a
representation to the other so as to enable him to arrange its affairs in such a manner as if the said
representation is acted upon.
In Sharma Transport v. Government of Andhra Pradesh,
the principle of promissory estoppel is that where one party has by his words or conduct
made to the other a clear and unequivocal promise or representation which is intended to create
legal relations or affect a legal relationship to arise in the future, knowing or intending that it
would be acted upon by the other party , the promise or representation would be binding on

the party making it and he would not be entitled to go back upon it, if it would be inequitable to
allow him to do so, having regard to the dealings which have taken place between the parties.

It being an equitable principle evolved for doing justice, there is no reason, saidBhagwati, J.,
why it should be given only limited application by way of defence. It can be the basis of cause
of action.
Though commonly named as promissory estoppel, it is neither in the realm of contract nor in
the realm of estoppel. The basis of the doctrine is the interposition of equity which has always,
true to its form, stepped in to mitigate the rigour of strict law.
Application of Doctrine of Promissory Estoppel to Government
The case of Motilal Padampat Sugar Mills v. State of Uttar Pradesh,:- is a trend setter regarding
the application of the doctrine of promissory estoppel against the Government. In this case the
Chief Secretary of the Government gave a categorical assurance that total exemption from sales
tax would be given for three years to all new industrial units in order them to establish
themselves firmly. Acting on this assurance the appellant sugar mills set up a hydrogenation
plant by raising a huge loan. Subsequently, the Government changed its policy and announced
that sales tax exemption will be given at varying rates over three years. The appellant contended
that they set up the plant and raised huge loans only due to the assurance given by the
Government. The Supreme Court held that the Government was bound by its promise and was
liable to exempt the appellants from sales tax for a period of three years commencing from the
date of production.
In Century Spinning and Manufacturing Co. v. Ulhasnagar Municipality:- The municipality
agreed to exempt certain existent industrial concerns in the area from octroi duty for a period of
seven years. However, later on it sought to impose duty. This was challenged and the Supreme
Court, while remanding the case to the High Court, held that where the private party had acted
upon the representation of a public authority, it could be enforced against the authority on the
grounds of equity in appropriate cases even though the representation did not result in a contract
owing to the lack of proper form.

Estoppel against a Statute


The doctrine of estoppel does not apply to statutes. In other words, a person who makes a
statement as to the existence of the provisions of a statute is not estopped, subsequently, from
contending that the statutory provision is different from what he has previously stated. A person
may not represent the true status of a statute or law, but the other person who relies on such a
representation is at liberty to find out the position of law on the matter and as the maxim says,
ignorance of law is no excuse.
In Jit Ram Shiv Kumar v. State of Haryana:- a municipality granted exemption from octroi for
developing a mandi, but subsequently is revoked the exemption. Later it again granted the
exemption in keeping with the terms of the original sale of plots, but levied taxes again. Even so,
a claim of estoppel against its legislative power was not allowed.
So is the case with the tax laws. If the law requires that a certain tax be collected, it cannot be
given up, and any assurances by the Government that the taxes would not be collected would not
bind the Government, when it chooses to collect the taxes. Thus it was held that when there was
a clear and unambiguous provision of law that entitles the plaintiff to a relief, no question of
estoppel arises.
The following conditions have been laid down as necessary to invoke no estoppel against a
statute:
The parties must bilaterally agree to contract irrespective of statutory provisions of the
applicable Act.
The agreement entered into by the parties must be expressly prohibited by the Act.
The provision of law must be made for public interest and not pertain to a particular class of
persons.
The agreement of the parties should not have been merged into an order of the court which by
the conduct of the parties had been dissuaded from performing its statutory obligations. So, it is a
well settled catena of decision that the doctrine of promissory estoppel cannot be invoked against
the provisions of Statutes.

Conclusion
The Doctrine of Estoppel is necessary to maintain flexibility in the law of the land. The
Government and other parties are kept under check from making promises for which they can be
held accountable as discussed before. It is inequitable that the promisor should be allowed to
resize from the assurance or representation having regard to what the promisee has done or
refrained from doing in reliance on the assurance or representation. So the citizens can rest
assured about the lawful promises made.
Also mention these Articles and students are requested to link the same with the aforementioned
points and case laws, (according to Ali Sir(emphaisis required))
Contractual Liability Of Government
INTRODUCTION
In the modern era of a welfare state, government's economic activities are expanding and the
government is increasingly assuming the role of the dispenser of a large number of benefits.
Today a large number of individuals and business organizations enjoy largess in the form of
government contracts, licenses, quotas, mineral rights, jobs, etc. This raises the possibility of
exercise of power by a government to dispense largess in an arbitrary manner.
Therefore there is a necessity to develop some norms to regulate and protect individual interest
in such wealth and thus structure and discipline the government discretion to confer such
benefits.
A contract is an agreement enforceable by law which offers personal rights, and imposes
personal obligations, which the law protects and enforces against the parties to the agreement.
Section 2(h) of the Indian Contract Act, 1872 defines a contract as "An agreement enforceable
by law". The word 'agreement' has been defined in Section 2(e) of the Act as every promise and
every set of promises, forming consideration for each other
A contract to which The Central Government or a State Government is a party is called a
'Government Contract'. According to Common Law, before 1947, the Crown could not be sued

in a court on a contract. This privilege was traceable to the days of feudalism when a lord could
not be sued in his own courts.
Another maxim which was pressed into service was that the 'King can dono wrong'. A subject
could, however, seek redress against the Crown through a petition of right in which he set out his
claim, and if the royal fiat was granted, the action could then be tried in the court. The royal fiat
was granted as a matter of course and not as a matter of right, and there was no remedy if the fiat
was refused.
The Crown Proceedings Act, 1947, abolished this procedure and permitted suits being brought
against the Crown in the ordinary courts to enforce contractual liability, a few types of contracts
being, however, excepted.
The Indian Contract Act, 1872 does not prescribe any form for entering into contracts. A contract
may be oral or in writing. It may be expressed or be implied from the circumstances of the case
and the conduct of the parties. But the position is different in respect of Government Contracts.
A contract entered into by or with the Central or State Government has to fulfill certain
formalities as prescribed by Article 299 of the Indian Constitution.
Contractual Liability Of Government
In respect of Government Contracts the provisions of Article 299(1) must be complied with,
but that does not mean that the provisions of the Indian Contract Act have been superseded.
In the case of State of Bihar v Majeed, the Hon'ble Supreme court held that;
"It may be noted that like other contracts, a Government Contract is also governed by the Indian
Contract Act, yet it is distinct a thing apart. In addition to the requirements of the Indian Contract
Act such as offer, acceptance and consideration, a Government Contract has to comply with the
provisions of Article 299.
Though there is hardly any distinction between a contract between private parties and
Government contract so far as enforceability and interpretation are concerned yet some special
privileges are accorded to the Government in the shape of special treatment under statutes of

limitation. Some privileges are also accorded to Government in respect of its ability to impose
liabilities with preliminary recourse to the courts.
GOVERNMENT CONTRACTS
The executive power of the Union of India and the States to carry on any trade or business,
acquire, hold and dispose property and make contracts is affirmed by Article 298 of the
Constitution of India. If the formal requirements required by article 299 are complied with, the
contract can be enforced against the Union or the States.
Article 299 of the Constitution provides:
"(1) All contracts made in the exercise of executive power of the union or a state shall be
expressed to be made by the President or by the Governor of the State as the case may be, and all
such contracts and all assurances of property made in the exercise of that power shall be
executed on behalf of the President or the Governor by such person and in such manner as he
may direct or authorize.
(2) Neither the President nor the Governor shall be personally liable in respect of any contract or
assurance made or executed for the purpose of any enactment relating to Government of India
hereto before in force , nor shall any such contract or assurance on behalf of any of them be
personally liable in respect thereof".
Thus Article 299 lays down three conditions which the contracts made in the exercise of the
executive power of the Center or a State must fulfill to be valid:
1-The contract must be expressed to be made by the President or the Governor as the case may
be;
2-These contracts made in the exercise of the executive power are to be executed on behalf of the
President/Governor as the case may be;
3-And the execution must be by such person and in such manner as the President or the
Governor of the case as the case may be, may direct or authorize.
If these requirements are fulfilled, a valid contract may result from the correspondence.

It has been held by the Hon'ble Supreme Court in the case of Bhikaraj Jaipuria v Union of
India
"it is clear from the words "expressed to be made" and "executed" that there must be a formal
written contractThe provisions of Article 299(1) are mandatory in character and any
contravention thereof nullifies the contract and makes it void.
The provisions of Article 299(1) have not been enacted for the sake of mere form but they have
been enacted for safeguarding the Government against the unauthorized contracts. The
provisions are embodied in the constitution on the ground of public policy on the ground of
protection of general public and these formalities cannot be waived or dispensed with."
This means that a contract not couched in the particular form stipulated by Article 299(1) cannot
be enforced at the instance of any of the contracting parties. Neither the government can be sued
and held liable for the breach of such a contract nor can the government enforce such a contract
against the other contracting party8.
Article 299(1) is based on public policy. In case the executive engineer has signed the contract
but nowhere in the contract it was offered and accepted or expressed to be made in the name of
the Governor, it was held that it was not a valid and binding contract.
Article 299 does not prescribe any particular mode in which authority must be conferred on a
person to execute a contract. Normally, such conferment will be by notification in the Official
Gazette but it can also be conferred ad hoc on any person.
Where a contract entered into with the Government is void by reason of its non-compliance with
the provisions of Article 299(1) of the constitution of India, but goods have been delivered by the
contractor to the Government in pursuance of such a void contract, then an obligation is imposed
upon the Government, under Section 70 of the Contract Act, to make compensation to the person
delivering the goods, provided the conditions imposed under Section 70 are satisfied, namely, the
promise must have lawfully and must not have acted gratuitously.( Laliteshwar Prasad v.
Baleshwar Prasad, AIR 1966 SC 580: (1966) 2 SCR 63)IMPORTANT

The contractor is also entitled to be restored back any advantage received by the Government as
provided under Section 65 of the Contract Act, and if any amounts are paid to the contractor by
the Government under such a contract, the contractor is, unless the amounts are specially paid
towards particular items comprising such contracts entitled to appropriate such amounts so paid
to his advantage.16
In New Marine Coal Co. v. Union of India, a contract entered into by the appellant with the
Government of India for the supply of coal to the railway administration was found to have been
made in contravention of Section 175(3), Government of India Act, 1935(or of Article 299 of the
present Constitution) and therefore void and unenforceable between the parties. But since the
appellant had performed his part and the Government of India had received the benefit of the
performance of the contract by the appellant, Section 70, Contract Act, was applied and the
Government of India was held bound to make compensation.
Contractual Liability Of Government
IMPLIED CONTRACTS WITH THE GOVERNMENT
In view of Article 299(1) there can be no implied contract between the government and another
person, the reason being that if such implied contracts between the government and another
person were allowed, they would in effect make Article 299(1) useless, for then a person who
had a contract with the government which was not executed at all in the manner provided under
Article 299(1) could get away by saying that an implied contract may be inferred on the facts and
the circumstances of the particular case.
It was held by the Hon'ble Supreme Court in the case of K.P. Chowdhary v State of M.P.
The Court justified this strict view by saying that if implied contracts between the government
and other persons were allowed, they would in effect, make Article 299(1) a dead letter, for then
a person who had a contract with the government which was not executed at all in the manner
provided under Article 299(1) could get away by pleading that an implied contract be inferred
from the facts and circumstances of the case.
A strict compliance with these conditions may be inequitable to private parties, and at the same
time, make government operations extremely difficult and inconvenient in practice.

Consequently, in the context of the facts of some cases, the courts have somewhat mitigated the
rigors of the formalities contained in Article 299(1), and have enforced contracts even when
there have not been full, but substantial, compliance with the requirements of Article 299(1). In
effect, it may be true to say that the judicial view has oscillated between the liberal and rigid
interpretation of Article 299.
contract to be valid under Article 299(1) has to be in writing. It does not, however, mean that
there should always be a formal legal document between the Government and the other
contracting party for the purpose. A valid contract could emerge through correspondence, or
through offer and acceptance, if all conditions of Article 299(1) are fulfilledIMPORTANT
DEVELOPMENTS IN PRINCIPLES OF CONTRACTUAL LIABILITY
Though the government is also governed by the law of contract, yet in some special
circumstances, the government can rescind a contract without any adverse consequences if it is
required for its executive functions. This phenomenon is termed as executive necessity.
In India this issue came in the Indo Afghan case where the Supreme Court held that: we are
unable to accede to the contention that executive necessity releases the Government from
honoring its solemn promises relying on which the citizens have acted to their detriment.
The plea of executive necessity has been negated in ruling given in M/s Sterling Comp Ltd. v.
M/s M&N Publication,where the court said that defense of executive necessity cannot be used
liberally. Thus Executive necessity can constitute a defense to enforcement of contractual
obligation. It can also be used as weapon of offense to rescind contracts. But in Contractual
Liability Of Government both cases it is obligatory for the Government to satisfy the court with
facts justifying the existence of the plea.
The Article 300 of the Constitution of India points out that the extent of liability of the Union of
India and the States will be similar to that of the Dominion of India and the Provinces under the
Government of India Act, 1935.
In early cases, it is observed that contractual liability of the Government, as in the case of
tortuous liability, would depend upon the question whether the liability was incurred in the
course of sovereign or non-sovereign functions. Peacock, C.J. in the P&O Steam Navigation Co.

Case,had asserted that where a contract is entered in the exercise of powers usually called
sovereign powers, no action will lie.
Unfortunately a doubt was cast on the extent of liability of the East India Company in contract in
Nobin Chunder Dey v. Secretary of State for India.In this case, a ganja licence was auctioned.
Nobin Chunder, the highest bidder, sued for specific performance of the contract. It was held that
the suit for specific performance could not succeed because the auction of ganja licence was a
method of collection tax which was a sovereign function.
SCOPE OF CONTRACTUAL LIABILITY OF GOVERNMENT OF INDIA
In regard to the contractual liability of the Government, the generally accepted view has been
that the Governments contractual liability is the same as that of a private individual. In fact,
Article 299(2) immunizes the President, or the Governor, or the person executing any contract on
his behalf, from any personal liability in respect of any contract executed for the purposes of the
Constitution, or for the purposes of any enactment relating to Government of India in force. This
immunity is purely personal and does not immunize the government, as such, from a contractual
liability arising under a contract which fulfills the requirements under Article 299(1).

TORTIOUS LIABILITY OF STATE


Introduction
In order to establish that a particular act was tortious, a plaintiff must prove that an actionable
wrong existed and that damages ensued from that wrong. The state is a legal entity and not a
living entity; it has to act through human agency through its servants. The liability of the state for
the tortious acts of its servant that has to be considered. In other words, it refers to when the state
can be held vicarious liable for the wrongs committed by its servants.
The Vicarious Liability refers to a situation where one person is held liable for act or omission
of other person. Winfield explains the doctrine of vicarious liability thus. The expression
vicarious liability signifies the liability which A may incur to C for damages caused to C by the
negligence or the tort of B. It is not necessary that A shall not have participated in any way in the

commission of the tort nor that duty owed in law by A to C shall have been broken. The master
may be held liable for the torts committed by his servant in the course of employment.
The doctrine of vicarious liability is base on two maxims:
(i) Respondent superior (let the principal be liable) and
(ii) Qui facit per alium facit per se (he who does an act through another does it himself).
As early as in 1839 , Lord Brougham observed: The reason that I am liable is this, by
employing him I set the whole thing in motion and what he does, being done before my benefit
and under my direction, I am responsible for the consequences of doing it.
The Doctrine of Vicarious Liability is based on social convenience and rough justice.
English law: in England, under common law, absolute immunity of the Crown was accepted
could not be sued in tort for wrongs committed by its servants in their employment. The rule was
based upon the well known maxim the King can do no wrong. In 1863, in Tobin v. R. the court
observed if the Crown were liable in tort, the principle (the King can do no wrong) would have
seemed meaningless. But with the increase of governmental functions, the immunity afforded to
the Crown in tortuous liability proved to be incompatible with the demands of justice. In 1947
the Crown Proceeding Act was enacted. This Act placed the Government in the same position as
a private individual.
Indian Law:
a. General
So far as Indian law is concerned, the maxim the king can do no wrong was never fully
accepted. Absolute immunity of the Government was not recognised in the Indian legal system
prior to the commencement of Constitution and in a number of cases the Government was held
liable for tortuous acts of its servants.
b. Constitutional Provision
Under Article 294 (4) of the constitution, the liability of Union Government or a state
Government may arise out of any contract or otherwise. The word otherwise suggests that the

said liability may arise in respects of tortuous acts also. Under article 300 (1), the extent of such
liability is fixed. It provides that the liability of the Union of India or State Government will be
same as that of Dominion of India and the Provision before the commencement of the
Constitution.
c. Sovereign and Non-sovereign functions
Sovereign Functions :
Sovereign functions are those actions of the state for which it is not answerable in any court of
law. For instance, acts such as defence of the country, raising and maintaining armed forces,
making peace or war, foreign affairs, acquiring and retaining territory, are functions which are
indicative of external sovereignty and are political in nature. Therefore, they are not amenable to
jurisdiction of ordinary civil court. The State is immune from being sued, as the jurisdiction of
the courts in such matters is impliedly barred.
In simple words, Sovereign functions are those functions which are of such nature which are
exclusively in the domain of the state and can not be performed by any other entity.
Pre-Constitution Judicial Decisions :
Peninsular & Oriental Steam Navigation Company v Secretary :
A servant of the plaintiff-company was proceeding on a highway in Calcutta, driving a carriage
which was drawn by a pair of horses belonging to the plaintiff. He met with an accident, caused
by negligence of the servants of the Government. For the loss caused by the accident, the
plaintiff

claimed

damages

against

the

Secretary

of

State

for

India.

Distinguishing between sovereign and non-sovereign functions it was held that if a tort were
committed by a public servant in the discharge of sovereign functions, no action would lie
against the Government e.g. if the tort was committed while carrying on hostilities or seizing
enemy property as prize.
The first case, which seriously discussed the question of Sovereign Immunity, is the Pand O
Navigation Company V. Secretary of State for India , in this case a piece of iron funnel carried

by some workmen for conducting repairs of Government steamer hit the plaintiff horse-driven
carriage and got injured. The Plaintiffs sued for damage. The plaintiff filed a suit against the
Secretary of State for India- in council for the negligence of the servants employed by the
Government of India. The Supreme Court delivered a very learned judgment through the Chief
Justice. The Supreme Court at Calcutta, CJ held that the Government will be liable for the
actions done by its servants while doing non-sovereign functions but it wont be liable for
injuries caused while pursuing sovereign functions.

Nobin Chander Dey v. Secretary of State. The plaintiff in this case contended that the
Government had made a contract with him for the issue of a licence for the sale of ganja and had
committed breach of the contract. The High Court held that upon the evidence, no breach of
contract had been proved. Secondly even if there was a contract, the act had been done in
exercise of sovereign power and was thus not actionable.
Secretary of State v. Hari Bhanji :
the court has denied any distinction between sovereign and non-sovereign functions and held that
where an act is done under the sanction of municipal law and in the exercise of powers conferred
by that law, the fact that it is done in the exercise of sovereign function and is not an act which
could possibly be done by a private individual does not oust its justifiability.

However, in Secretary of Secretary of State v. Cockraft, making or repairing a military road was
held to be a sovereign function and the Government was held not liable, for the negligence of its
servants in the stacking of gravel on a road resulting in a carriage accident that injured the
plaintiff.

In the Bombay case of Rao v. Advani, it was held that the Madras view in the Hari Bhanji case
was correct. The Bombay case was not one of a claim to damages for tort, but related to a
petition for certiorari to quash a Government order for the requisitioning of property, as proper
notice had not been given. On appeal, the Supreme Court, in the case of State of Bombay v.

Khushaldas Advani, reversed the High Court, holding that natural justice was not required to be
observed, before requisitioning any property.

Post Constitution Judicial Decisions


1. State of Haryana v. Santra
The respondent in the above case was a poor lady who went under a sterilization
operation at the General Hospital, Gurgaon, as she already had seven children and wanted
to take advantage of the family planning scheme launched by the State Government of
Haryana. Smt. Santra was informed that she would not conceive in future. Smt. Santra
approached the Chief Medical Officer, Gurgaon, for her sterilization in 1988. But she
gave birth to a female child. This led her to file a suit claiming Rs. 2 lakhs as damages for
medical negligence due to failed sterilization The courts were of the opinion that this
exhibited negligence on the part of the Medical Officer who performed the operation.
Smt. Santra, in spite of the unsuccessful operation, was informed that sterilisation
operation was successful and that she would not conceive any child in future. The plea of
estoppel raised by the defendants was also rejected.
Having regard to the above facts the court said that Smt. Santra was entitled to full
compensation from the State Government and appeal was dismissed but without any
order as to cost.

Post Judgement Developments:


In case of any medical negligence, if the doctor acting in the course of employment of the
Government Hospital, the Government is liable for the negligent act as it come under the
preview of State Liability.

2. State of Rajasthan v. Vidyawati :


In this case, a Government Jeep knocked down a pedestrian who died in consequence of
accident. Rejecting the appeal by the State of Rajasthan on the ground of Sovereign Immunity,
the Court ruled that the State is liable for the tort or wrongs committed by its officials. In this
case distinction between sovereign and non-sovereign functions was disregarded, but the court

observed that the State would not be responsible for the Act of State under Article 300 of the
Constitution. The Supreme Court, in this case, added that in modern times, the State has welfare
and socialistic functions and the defence of State immunity based on the old feudalistic notions
of justice cannot be sustained.
2. Kasturilal v. State of UP
In Kasturi lal v. State of U.P. a certainly of gold and silver was attached by police
authorities from one R on suspicion that was stolen property. It was kept in Government
malkhana which was in the custody of Head Constable. The Head constable
misappropriated the court. A suit for damages was filed by R against the state for the loss
caused to him by the negligence of police authorities of the state. The Supreme Court
held that the state was not liable police authorities were exercising sovereign functions.
The Constitution Bench of court, Gajendragadkar, C.J observed:
If a tortuous act is committed by the public servant and it gives rise to claim for damages, the
question to ask is: Was the tortuous act committed by the Public servant in discharge of stuatory
functions or the delegation of sovereign powers of the state to such public servant? If the answer
is in the affirmative, the action for damages for loss caused by such tortuous act will not lie. On
the other hand, if tortuous act has been committed by a public servant in discharging of duties
assigned to him not by virtue of the delegation of any sovereign power an action for damages
would lie.
Distinguishing Vidyawati, the court held that: the employment of a driver to drive the jeep car
for the use of a civil servant is itself an activity which is not connected in any manner with the
sovereign power of state at all. It appears that the Supreme Court itself was satisfied that kasturi
lal did not lay down correct proposition of law and in these circumstances, in subsequent case
either the court did not refer Kasturi lal at all or describing it as not relevant.
The Court also stated that distinction between sovereign and non-sovereign power no more
exists. It all depends on the nature of the power and manner of its exercise. No civilized system
can permit an executive to play with the people of its country and claim that it is entitled to act in
any manner as it is sovereign. The functions state as sovereign and non-sovereign or
governmental and non-governmental is not sound. It is contrary to modern jurisprudence

thinking. Since the doctrine has become outdated and sovereignty now vests in the people, the
state cannot claim any immunity and if a suit is maintainable against the officer personally, there
is no reason to hold that it would not be maintainable against the state.
Other Important Milestones :
Saheli V. Commissioner of Police:
Saheli V. Commissioner of Police was another milestone in the evaluation of compensation
jurisprudence in writ courts. The masterpiece judgement in Vidyawati, which was freezed by
Kasturi Lal was rightly quoted in this case. The State was held liable for the death of nine year
old child by Police assault and beating. Delhi Administration was ordered to pay compensation
of Rs. 75000/-. The significance of this case is that firstly, the revival of Vidyawati ratio and
secondly that the Delhi Administration was allowed to recover money from those officers who
are held responsible for this incident.

Nilabati Behra V. State of Orissa :


Another landmark judgement was Nilabati Behra V. State of Orissa awarding compensation to
the petitioner for the death of her son in police custody. The court held that a claim in public law
for compensation for violation of human rights and fundamental freedoms, the protection remedy
for enforcement and protection of such right, is distinct from and in addition to the remedy in
private law damages for tort. The court expressly held that principle of sovereign immunity does
not apply to the public law remedies under Article 32 and Article226 for the enforcement of
fundamental rights. The Kasturi Lal case ratio is confined to private law remedies only.

The distinction between public and private law and the remedies under the two has been
emphasised in Common Cause, A Registered Society V. Union of India and Chairman, Railway
Board V. Chandrima Das cases. It was held "where public functionaries are involved and the
matter relates to the violation of fundamental rights or the enforcement of public duties, the
remedy would still be available under the public law notwithstanding that a suit could be filed for
damages under private law."

DOCTRINE OF LEGITIMATE EXPECTATION


Doctrine of legitimate expectation, which is an outcome of synthesis between the principle of
administrative fairness (a component of the principles of natural justice) and the rule of estoppel.
The doctrine of legitimate expectation imposes in essence a duty on public authority to act
fairly by taking into consideration all relevant factors relating to such legitimate expectation.
The doctrine is still at a stage of evolution but it has generated a significant body of case law.

The particular manifestation of the duty to act fairly is that part of the recent evolution of
administrative law which may enable an aggrieved party to evoke judicial review if he can show
that he had a reasonable expectation of some occurrence or action preceding the decision
complained of and that reasonable expectation was not fulfilled in the event. The two phrases
reasonable expectation and legitimate expectation are treated as synonymous.

The judicial evolution of the doctrine of legitimate expectation can be traced to the opinion of
the Judicial Committee delivered by Lord Fraser in Attorney-General of Hong Kong vs. Ng Tuen
Shiu.1 Ng. was an illegal immigrant from Macau. The government announced a policy of
repatriating such persons and stated that each would be interviewed and each case treated on its
merits. Ng. was interviewed and his removal ordered. His complaint was that at the interview
he had not been allowed to explain the humanitarian grounds on which he might be allowed to
stay, but only to answer the questions put to him; that he was given a hearing, but not the hearing
in effect promised, as the promise was to give one at which mercy could be argued. The
judicial Committee agreed that, on that narrow point, the governments promise had not been
implemented; his case had not been considered on its merits, and the removal order was quashed.
Ng succeeded on the basis that he had a legitimate expectation that he would be allowed to put

(1983) 2 A.C. 629, (1983) 3 All. E.R. 346.

his case, arising out of the government promise that everyone affected would be allowed to do
so.
Development in India
The legal position in India is more or less the same as in England. The precise content of
this doctrine, which enables an aggrieved person to seek his remedy by judicial review, has also
been the subject matter of evolution through judicial decisions.
In Navjyoti Coop. Group Housing Society v. Union of India , In this case the seniority as per the
existing list of cooperative housing society for allotment of land was altered by subsequent
decision. The previous policy was that the seniority amongst housing societies in regard to
allotment of land was to be based on the date of registration of the society with the Registrar.
But on 20.1.1990, the policy was changed by reckoning seniority as based upon the date of
approval of the final list by the Registrar. This altered the existing seniority of the society for
allotment of land. The Supreme Court held that the societies were entitled to a legitimate
expectation that the past consistent practice in the matter of allotment be followed even if there
was no right in private law for such allotment. The authority was not entitled to defeat the
legitimate expectation of the societies as per the previous seniority list without some overriding
reason of public policy as to justify change in the criterion. No such overriding public interest
was shown.

It means that said actions have to be in conformity of Article 14 of the Constitution, of which
non-arbitrariness is a second facet. Public Authority cannot claim to have unfettered discretion in
public law as the authority is conferred with power only to use them for public good.
A person claiming it has to satisfy the Court that his rights had been altered by enforcing a right
in private law or he has been deprived of some benefit or advantage which he was having in the
past and which he could legitimately expect to be permitted to continue unless it is withdrawn on
some rational ground or he has received assurance from the decision making Authority which is
not fulfilled, i.e., the kind of promissory estoppel.

The next case in which the doctrine of legitimate expectation was considered is
the case of Food Corpn. of India v. Kamdhenu Cattle Feed Industries.

There the Food

Corporation of India invited tenders for sale of stocks of damaged food grains and the
respondents bid was the highest. All tenderers were invited for negotiation, but the respondent
did not raise his bid during negotiation while others did. The respondent filed a writ petition
claiming that it had a legitimate expectation of acceptance of its bid, which was the highest.
Supreme Court held that though the respondents bid was highest, still it had no right to have it
accepted. No doubt, its tender could not be arbitrarily rejected, but if the Corporation reasonably
felt that the amount offered by the respondent was inadequate as per the factors operating in the
commercial field, the non-acceptance of bid could not be faulted. The procedure of negotiation
itself involved giving due weight to the legitimate expectation of the highest bidder and thus was
sufficient.
In Union of India v. Hindustan Development Corporation , the Supreme Court has pointed out
that According to the Supreme Court an element of speculation and uncertainty is inherent in
that very concept. The Court noted that legitimate expectation was not the same thing as a
anticipation. It was also different from a mere wish to desire or hope; nor was it a claim or
demand based on a right. A mere disappointment would not give rise to legal consequences.2
In National Buildings Construction Corporation v S. Raghunathan, The Court further
ruled that the question, whether the expectations and the claims made thereupon were legitimate
or not, was essentially a question of fact and therefore, the rules of pleading would strictly apply.
A party which seeks a relief from the Court claiming expectation, ought to place such facts
before the court as would enable it to satisfy itself that such claim is legitimate. It was observed
by the Supreme Court that the doctrine of legitimate expectation had both substantive and
procedural aspects.
The Supreme Court in the case of Union of India v/s.
Hindustan Development Corporation (1993) 3 SCC 499 elaborately considered this law. In the
case it has been held that the principle of legitimate expectation gave the applicant sufficient

locus standi to seek judicial review and that the doctrine was confined mostly to a right to fair
hearing before a decision which resulted in negativing a promise or withdrawing an undertaking
was taken. It did not involve any crystallized right. The protection of such legitimate expectation
did not require the fulfillment of expectation where the overriding public interest required
otherwise. However, the burden lay on the decision maker to show such an overriding public
interest. In this case several English and Australian cases were referred to and conclusions were
then reached.

Then again in M.P. Oil Extraction V/s State of M.P. (1997) 7 SCC 592, it was held that the
State's Policy to extend renewal of an agreement to selected industries which came to be located
in Madhya Pradesh on the invitation of the State, as against the local industries was not arbitrary
and the said selected industry had a legitimate expectation of renewal under the renewal claims.

The emerged concept of legitimate expectation in administrative law has now undoubtedly
gained sufficient importance. It is observed that legitimate expectation is the latest recruit to a
long list of concepts fashioned by the courts for the review of administrative action. The
legitimate expectation would arise when there is an express promise give by a public authority
that there is a regular practice of certain thing which the claimant can reasonably expect to
continue. It therefore follows that the concept of legitimate expectation consists in inculcating an
expectation in the citizen that under certain rules and scheme he would continue to enjoy certain
benefits of which he shall not be deprived unless there is some overriding public interest to
deprive him of such an expectation. This is a procedural right which in certain contingencies
becomes substantive right. It is rather a safty value against the abuse of discretion by the over
zealous administrative authority. Ostensible it may not have a sound and fury but certainly it
signifies a lot on the right of equality in the modern progressive society with fast changing social
values and a new economic order. new concepts have surfaced, their judicial redress is sought of
it legal injury or legal wrong is inflicted by the acts and omissions of the executive and the
administrative authorities. The doctrine of legitimate expectation is such a concept but judicial
attempts need be made to delineate parameters that embrace both "promissory estoppel" and

legitimate expectation so that they may not interplay and interact to the detriment of the remedy
seeker.
JUDICIAL ACTIVISM AND PUBLIC INTEREST LITIGATION
In Indian law, public interest litigation means litigation for the protection of the 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 courts 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.
However, the person filing the petition must prove to the satisfaction of the court that the petition
is being filed for a public interest and not just as a frivolous litigation by a busy body.
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 cognizance of the matter and proceed suo motu or cases can commence on the petition
of any public-spirited individual.
Origin & Development
The seeds of the concept of public interest litigation were initially sown in India by Krishna Iyer
J., in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai (AIR 1976 SC 1455; 1976 (3) SCC 832)
and the ideal of Public Interest Litigation was blossomed in S.P. Gupta and others vs. Union of
India, (AIR 1982 SC 149).
Public Interest Litigation and Judicial Activism: Public interest litigation or social interest
litigation today has great significance and drew the attention of all concerned. The traditional
rule of Locus Standi that a person, whose right is infringed alone can file a petition, has been
considerably relaxed by the Supreme Court in its recent decisions. Now, the court permits public
interest litigation at the instance of public spirited citizens for the enforcement of constitutional
o- legal rights. Now, any public spirited citizen can move/approach the court for the public cause
(in the interests of the public or public welfare) by filing a petition:
1In Supreme Court under Art.32 of the Constitution

2.in High Court under Art.226 of the Constitution; and


3. in the Court of Magistrate under Sec.133, Cr. P.C.
Justice Krishna layer fertilizer Corporation Kamgar Union vs. Union of India, (1981) enumerated
the following reasons for liberalization of the rule of Locus Standi:Exercise of State power to eradicate corruption may result in unrelated interference with
individuals rights.

2.

Social

justice

wan

ants

liberal

judicial

review

administrative

action.

3. Restrictive rules of standing are antithesis to a healthy system of administrative action.

4. Activism is essential for participative public justice.


Therefore, a public minded citizen must be given an opportunity to move the court in the
interests of the public.
Merits:
In Public Interest Litigation (PIL) vigilant citizens of the country can find an inexpensive legal
remedy because there is only a nominal fixed court fee involved in this.

2. Further, through the so-called PIL, the litigants can focus attention on and achieve results
pertaining to larger public issues, especially in the fields of human rights, consumer welfare and
environment.
Demerits:
Some Jurists have found the PIL as a handy tool of harassment since frivolous cases could be
filed without investment of heavy court fees as required in private civil litigation and deals could
then be negotiated with the victims of stay orders obtained in the so-called PILs.

STEPS NECESSARY:
With the view to regulate the abuse of PIL the apex court itself has framed certain guidelines (to
govern the management and disposal of PILs.) The court must be careful to see that the
petitioner who approaches it is acting bona fide and not for personal gain, private profit or
political or other oblique considerations. The court should not allow its process to be abused by
politicians and others to delay legitimate administrative action or to gain political objectives.
There may be cases where the PIL may affect the right of persons not before the court, and
therefore in shaping the relief the court must invariably take into account its impact on those
interests and the court must exercise greatest caution and adopt procedure ensuring sufficient
notice to all interests likely to be affected.

CASE LAWS
S.P. Gupta vs. Union of India, AIR 1982 SC 149 (Popularly known as 'Judges' Transfer Case'):
In this case, Bhagwati J., firmly established the validity of the public interest litigation. Since
then, a good number of public interest litigation petitions were filed.
People's Union for Democratic Rights vs. Union of India, AIR 1982 SC: 1473 (Popularly known
as 'Asiad Case'): The Govt. of India, in connection with the Asiad Games 1982 employed some
contractors for construction of buildings and projects. The labourers/workmen engaged in the
construction work were paid very meagre wages. The Supreme Court treated the letter by the
People's Union for Democratic Rights as a writ petition and directed the authorities concerned to
pay the wages according to the Minimum Wages Act, 1948.
Bandhu Mukti Morcha Union of India. AIR 1984 SC 802: 1984 (2) SCR 67: In this case. the
Supreme Court treated a letter as PIL petition and directed the Central Government and the State
of Haryana for the release of the bonded labourers and also ordered to pay the appropriate wages
and provide proper working conditions.
Olga Tellis vs. Bombay Municipal Corporation: AIR 1986 SC 180; 1985 (3) 5CC 545; 1985
Supp. (2) SCR 51: The petitioners this case were pavement dwellers. They challenged the
validity of Sections 313, 313-A, 314 and 497 of the Bombay Municipal Corporation Act, 1988,

which empowered the Municipal authorities to remove their huts from pavements and public
places on the ground that it deprives of their right to Svelihood as included in Art.2l of the
Constitution. The Court directed the authorities of the Bombay Municipal Corporation to frame a
Scheme for Hawking and Non-hawking Zones and issue licences to sell their goods in Hawking
Zones.
M.C. Mehta and Another vs. Shri Ram Foods and Fertilizer Industries and others, AIR 1987 SC
965: Shri Ram Foods and Fertilizer Industries is a subsidiary of Delhi Cloth Mills Ltd., located in
a thickly populated area of Delhi. On 4.12.1985, there was a leakage of oleum gas resulting in
the death of an Advocate in the Tees Hazari Court and injuries to several others. The petitioner,
M.C. Mehta, an Advocate of Supreme Court tiled public interest litigation petition in the
Supreme Court under Art.' 21 of the Constitution. The petitioner, in his petition requested the
court to direct the Government to lake necessary steps to avoid such leakages from the industries
engaged in dangerous and hazardous manufacturing processes. He also prayed the Govt. to direct
the Management of the Company to shift the plant to a place far away from the city. The
Supreme Court admitted the petition and evolved the principle of 'Absolute Liability' and laid
dins a the appropriate the petitioner and also appreciated the petitioner and ordered the Shri Ram
Foods and Fertilizer Industries to pay him Rs.10.000 toward, costs.
Supreme Court Advocates on Record Association vs. Union of India. (1993) 4 SCC 441; AIR
1994 SC 268 (Popularly known as ...rhh,btrnerrt/7ransfcr of Judges' Case'): Mr. Subhash
Sharnta, an Advocate of the Supreme Court and the Supreme Court Advocates-on-Record
Association filed public interest litigation petitions under Art.32 of the Constitution in the
Supreme Court. praying the court to fill up the vacancies of Judges in the Supreme Court and
High Courts and the appointment of Chief Justice of India shall be made on the basis of
seniority. A Nine-Judge Bench of the Supreme Court by a 7:2 majority over uled its earlier
decision in S.P- Gupta vs. Union of India. (AIR 1982 SC 149) and laid down the detailed
guidelines governing the appointment and transfer of Judges.
M.C. Mehta vs. Union of India, AIR 1988 SC 1115 (Ganga River Pollution Case): The river
Ganga is very famous for its historical significance and religious importance. It got polluted due
to discharge of industrial wastes, effluents, human excreta into the river. Further, a number of
dead bodies are being thrown into the river at Kasi, with a belief that the dead persons would too

to heaven directly since they consider Kasi as holy place and the river as sacred. The petitioner.
M.C. Mehta, Advocate. Supreme Court filed a PIL petition in the Supreme Court under Art.32 of
the Constitution against the Union of India, Kanpur Municipal Corporation and others for
removal of public nuisance caused by the polluted Ganga water, The Supreme Court allowed the
petition and directed the authorities concerned to take up necessary steps for removal of the
public nuisance and also appreciated the petitioner for taking imitative in this regard.

JUDICIAL REVIEW
The power of Judiciary to review and determine validity of a law or an order may be described as
the power of "Judicial Review."
It means that the constitution is the Supreme law of the land and any law in consistent there with
is void. The term refers to "the power of a court to inquire whether a law executive order or other
official action conflicts with the written constitution and if the court concludes that it does, to
declare it unconstitutional and void."
Judicial Review has two prime functions:
(1) Legitimizing government action; and (2) to protect the constitution against any undue
encroachment by the government.
The power of judicial review was first acquired by the Supreme Court in Marbury vs. Madison
case. 1803 in U.S. Chief Justice John Marshall of the United States emphatically pronounced the
power of the Court to declare the act of the legislature as ultra vires. Marshall claimed this power
of the Court from famous clause of Due Process of Law of the American Constitution. One of
the Bills Of Rights in the American Constitution is that No person shall be deprived of his life,
liberty and property without due process of law

The constitution of India, in this respect, is more a kin to the U.S. Constitution than the British.
In Britain, the doctrine of parliamentary supremacy still holds goods. No court of law there can

declare a parliamentary enactment invalid. On the contrary every court is constrained to enforce
every provision" of the law of parliament.
Under the constitution of India parliament is not Supreme. Its powers are limited in the two
ways. First, there is the division of powers between the union and the states. Parliament is
competent to pass laws only with respect to those subjects which are guaranteed to the citizens
against every form of legislative encroachment.
Being the guardian Fundamental Rights and the arbiter of-constitutional conflicts between the
union and the states with respect to the division of powers between them, the Supreme Court
stands in a unique position where from it is competent to exercise the power of reviewing
legislative enactments both of parliament and the state legislatures.
There are several specific provisions in the Indian constitution, judicial review of legislation such
as Act 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372.
Article 372 (1) establishes the judicial review of the pre-constitutional legislation similarly.
Article 13 specifically declares that any law which contravenes any of the provision of the part of
Fundamental Rights shall be void. Even our Supreme Court has observed, even without the
specific provisions in Article 13.
The court would have the power to declare any enactment which transgresses a Fundamental
Right as invalid. The Supreme and high courts are constituted the protector and guarantor of
Fundamental Rights under Articles 32 and 226. Articles 251 and 254 say that in case of in
consistent if between union and state laws, the state law shall be void.
In Shankari Prasad vs. Union of India (1951) the first Amendment Act of 1951 was challenged
before the Supreme Court on the ground that the said Act abridged the right to property and that
it could not be done as there was a restriction on the amendment of Fundamental Rights under
Article 13 (2).
The Supreme Court rejected the contention and unanimously held. "The terms of Article 368 are
perfectly general and empower parliament to amend the constitution without any exception
whatever.

In the context of Article 13 law must be taken to mean rules or regulations made in exercise of
ordinary legislative power and amendments to the constitution made in exercise of constituent
power, with the result that Article 13 (2) does not affect amendments made under Article 368."
In Sajan Singh's case (1964), the corupetence of parliament to enact 17th amendment was
challenged before the constitution. Bench comprising of five judges on the ground that it violated
the Fundamental Rights under Article 31 (A).
Supreme court reiterated its earlier stand taken in Shankari sad's case and held, "when article 368
confers on parliament the right to amend the constitution the power in question can be exercised
over all the provisions of the constitution, it would be unreason about to hold that the word law'
in article 13 (2) takes in amendment Acts passed under article 368.
Thus, until 1967 the Supreme Court held that the Amendment Acts were not ordinary laws, and
could not be struck down by the application of article 13 (2).
The historic case of Golak Nath vs. The state of Punjab (1967) was heard by a special bench of
11 judges as the validity of three constitutional amendments (1st, 4th and 17th) was challenged.
The Supreme Court by a majority of 6 to 5 reversed its earlier decision and declared that
parliament under article 368 has no power to take away or abridge the Fundamental Rights
contained in chapter II of the constitution the court observed.
(1) Article 368 only provides a procedure to be followed regarding amendment of the
constitution.
(2) Article 368 does not contain the actual power to amend the constitution.
(3) The power to amend the constitution is derived from Article 245, 246 and 248 and entry 97
of the union list.
(4) The expression 'law' as defined in Article 13 (3) includes not only the law made by the
parliament in exercise of its ordinary legislative power but also an amendment of the constitution
made in exercise of its constitution power. ,

(5) The amendment of the constitution being a law within the meaning of Article 13 (3) would be
void under Article 13 (2) of it takes away or abridges the rights conferred by part III of the
constitution.
(6) The First Amendment Act 1951, the fourth Amendment Act 1955 and the seventeenth
Amendment Act. 1964 abridge the scope of Fundamental Rights and, therefore, void under
Article 13 (2) of the constitution.
(7) Parliament will have no power from the days of the decision to amend any of the provisions
of part III of the constitution so as to take away or abridge the Fundamental Rights enshrined
there in.
The constitutional validity of the 14th, 25th, and 29th Amendments was challenged in the
Fundamental Rights case. The Govt. of India claimed that it had the right as a matter of law to
change or destroy the entire fabric of the constitution through the instrumentality of parliament's
amending power.
In Minerva Mills case (1980) the Supreme Court by A majority decision has trunk down section
4 of the 42nd Amendment Act which gave preponderance to the Directive Principles over
Articles 24, 19 and 31 of part III of the constitution, on the ground that part III and part IV of the
constitution are equally important and absolute primacy of one over the other is not permissible
as that would disturb the harmony of the constitution.
The Supreme Court was convinced that anything that destroys the balance between the two part
will ipsoTacto destroy an essential element of the basic structure of our constitution.
Judicial Review of Legislative Enactment and ordinances:
One of the first major case A.K. Gopalan Vs. State of Madras. 1951 that came up before the
Supreme Court in which the preventive Intention Act, 1950 was challenged as invalid.
The court by a unanimous decision declared section 14 of the Act invalid and thus manifested its
competence to declare void any parliamentary enactment repugnant to the provisions of the
constitution.

In Champakan Dorairajan's case, the Supreme Court held that the order of the state government
fixing proportionate scales, for different communities for admission to medical colleges was
unconstitutional.
The presidential order de-recognising privy purses was also challenged in the Supreme Court
which declared the order as unconstitutional and void. Between 1950-1980 parliament passed as
many as 1977 Acts and out of them, the Supreme Court invalidate laws passed on 22 occasions.
Principles of Judicial Review:
Justice VS Deshpande in his book propounded a thesis that Judicial Review of legislation in
India should rest merely on Article 245 (1) and not on Article 13. According to him, Article 245
(1) interpreted broadly would ensure the supremacy of the constitution over all kinds of laws.
Thus, a law to be valid must conform with the constitutional forms. The grave responsibility of
deciding upon the validity of laws, is laid up on the judges of the Supreme Court. If a statue isn't
within the scope of legislative authority or it offends some constitutional restriction or
prohibition, that statue is unconstitutional and hence invalid.
The Statue is not held unconstitutional by the court in a light vein. Both the 'felt necessities of the
time' and 'constitutional fundamentals' are balanced by the court. Accordingly, the Supreme
Court has evolved certain canons, making and norms. H.M. Leervai has enumerated following
rules in this regard.
(1) There is a presumption in favour of constitutionality, and a law will not be declared
unconstitutional unless the case is so clear as to be free from doubt; and the on us to prove that it
is unconstitutional lies upon the person who challenges it.
(2) Where the validity of a statue is questioned and there are two interpretations, one of which
would make the law valid, and the other void, the former must be preferred and the validity of
the law upheld.
(3) The court will not decide constitutional questions of a case is capable of being decided on
other grounds.

(4) The court will not decide a larger constitutional question than is required by the case before
it.
(5) The court will not hear an objection as to the constitutionality of a law by a person whose
rights are not affected by it.
(6) Ordinarily, courts should not pronounce on the validity of an Act or part of an Act, which has
not been brought into force, because till then the question of validity would be merely academic.
Indian judiciary has been able to overcome the restrictions that were put on it by the 42nd
amendment, with the help of the 43rd and 44th amendments.
Now the redeeming quality of Indian judiciary is that no future governments could did its wings
or dilute its right of Judicial Review. In fact, now the 'Judicial Review' is considered to be the
basic feature of out constitution.
OMBUDSMAN
The recent exposes, disclosure of financial scams have highlighted the extent of corruption that
is going on across the country. And corruption can only be fought with a co-ordinate effort.
Therefore, there is a huge cry going on throughout the country in order to eliminate corruption
from the entire political system
There should be established a Lokpal at the central level and a Lokayukta at the state level.
Both will address the inadequacies of the current anti-corruption systems and will have the
power and independence to investigate and prosecute cases of corruption
Lokpal and Lokayukta will work on behalf of the citizens and will prevent their interests from
the abuse by public office both at the central and the state level. These will be an independent
body and the politicians and the bureaucrats will have no interference in their functioning. The
establishment of Lokpal and Lokayukta will give the citizens right to file complaints in the High
Courts and the Supreme Court in case they are not satisfied with the working of any government
official or any other bureaucrat, as the case may be. For the first time, the citizens will have the
right to participate in the making of law. In other words, there will be a system of referendum in
our country.

The origin of the Lokayukta can be traced to the Ombudsmen in Scandinavian countries. The
Administrative Reforms Commission, (1966-70), had recommended the creation of the Lokpal at
the Centre and Lokayukta in the states. The Centre is yet to get a Lokpal so that the malice of
corruption is removed and the citizens are able to live in a disease free country.
The term Lokpal is the Indian version of Ombudsman which is a Swedish term. The institution
of ombudsman was first established in Sweden in 1808. He is an officer of Parliament and
his job is to ensure that the civil servants discharge their functions properly. This institution hase
merged as watch dog of the administration and protector of the common man
The institution of ombudsman originated in Scandinavian countries. Sweden was the first
country to adopt this institution as early as 1809, Since then it has been adopted in a number of
Countries, such as Finland, 1919; Denmark, 1954; Norway, 1960; New Zealand, 1962;
Mauritius, 1966; Guyana, 1966; United Kingdom, 1967; Australia, 1976.
The Prevention of Corruption Act, 1947 was a measure which sought to eradicate corruption.
But this measure failed to check the same. A new technique was adopted on the
recommendations of Santhanam Committee and the Central Vigilance Commission a nonstatutory body established in 1964
OMBUDSMAN IN INDIA
In India, Ombudsman is called as Lokpal or Lokayukta. An Administrative Reforms
Commission (ARC) was set up on 5 January 1966 under the Chairmanship of Shri Morarji Desai.
It recommended a two-tier machinery: Lokpal at the Centre and one Lokayukta each at the State
level for redressal of peoples grievances. However, the jurisdiction of the Lokpal is not
extended for judiciary like in New Zealand. The central Government introduced the first Lokpal
Bill, Lokpal and Lokayuktas Bill in 1968 and lastly in 2005, which has so far not been enacted.
As mentioned in the Draft Bill appended to the Interim Report of the Commission, the Lokpal is
to be appointed by the President, on the advice of the Prime Minister in consultation with the
chief justice of India and the leader of the Opposition in Lok Sabha. The person who is to be
appointed as Lokpal must have served his connection if any with any Political Party, his
Membership in Parliament or the Legislature of state or any office of profit. He can hold office

for five years with eligibility for reappointment. He shall not be removed except by the
procedure for of impeachment, as in the case of Supreme Court Judges. His status and salary will
be the same as the Chief Justice of India.
LOKPAL
The word Lokpal means an ombudsman (Legal Representative) in India. The word has been
derived from the Sanskrit words loka (people) and pala (protector/caretaker). So the word
Lokpal means protector of people. The concept of Lokpal has been drawn up to root out
corruption at all levels in the prevailing Indian polity.
The first Lokpal Bill was introduced by Shanti Bhushan in 1968 and passed in the 4th Lok Sabha
in 1969 but could not get through in the Rajya Sabha. Subsequently, Lokpal bills were
introduced in 1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005 and in 2008, yet they were never
passed. 42 years after its first introduction, the Lokpal bill is still pending in India.
Following this, the Lokpal Bill was for the first time presented during the fourth Lok Sabha in
1968, and was passed there in 1969. However, while it was pending in the Rajya Sabha, the Lok
Sabha was dissolved, and so the bill was not passed at that time. The bill was revived in 1971,
1977, 1985, 1989, 1996, 1998, 2001, 2005, and most recently in 2008. Each time, after the bill
was introduced to the house, it was referred to some committee for improvements, a joint
committee of parliament, or a departmental standing committee of the Home Ministry and before
the government could take a final stand on the issue, the house was dissolved.
Several flaws have been cited in the recent draft of the Lokpal Bill. Meanwhile the activists of
India Against Corruption (IAC) have prepared a draft for the bill called Lokpal Bill. The Lokpal
Bill (Citizens ombudsman Bill) is a draft anti-corruption bill drawn up by prominent civil
society activists seeking the appointment of a Lokpal, an independent body that would
investigate corruption cases, complete the investigation within a year and envisages trial in the
case getting over in the next one year.
Drafted by Justice Santosh Hegde (former Supreme Court Judge and present Lokayukta of
Karnataka), Prashant Bhushan (Supreme Court Lawyer) and Arvind Kejriwal (RTI activist), the
draft Bill envisages a system where a corrupt person found guilty would go to jail within two

years of the complaint being made and his ill-gotten wealth being confiscated. It also seeks
power to the Jan Lokpal to prosecute politicians and bureaucrats without government permission.
A look at the salient features of Jan Lokpal Bill:
An institution called LOKPAL at the centre and LOKAYUKTA in each state will be set up
Like Supreme Court and Election Commission, they will be completely independent of the
governments. No minister or bureaucrat will be able to influence their investigations.
Cases against corrupt people will not linger on for years anymore: Investigations in any case will
have to be completed in one year. Trial should be completed in next one year so that the corrupt
politician, officer or judge is sent to jail within two years.
The loss that a corrupt person caused to the government will be recovered at the time of
conviction.
If any work of any citizen is not done in prescribed time in any government office, Lokpal will
impose financial penalty on guilty officers, which will be given as compensation to the
complainant.
So, you could approach Lokpal if your ration card or passport or voter card is not being made or
if police is not registering your case or any other work is not being done in prescribed time.
Lokpal will have to get it done in a months time. You could also report any case of corruption to
Lokpal like ration being siphoned off, poor quality roads been constructed or panchayat funds
being siphoned off. Lokpal will have to complete its investigations in a year, trial will be over in
next one year and the guilty will go to jail within two years.
The members of the Lokpal will be selected by judges, citizens and constitutional authorities and
not by politicians, through a completely transparent and participatory process, therefore there
would be no corrupt people.
The entire functioning of Lokpal/ Lokayukta will be completely transparent. Any complaint
against any officer of Lokpal shall be investigated and the officer dismissed within two months.

CVC, departmental vigilance and anti-corruption branch of CBI will be merged into Lokpal.
Lokpal will have complete powers and machinery to independently investigate and prosecute any
officer, judge or politician.
It will be the duty of the Lokpal to provide protection to those who are being victimized for
raising their voice against corruption.
DUTIES
To judge the cases and make jurisdictions against corruption cases with the Lokpal.
To judge whether a case is legal or whether a fake complaint has been made.
To potentially impose fines on a fake complaint, or even a short span of jail time, if the case is
not proved to be legally true.
LOKAYUKTA
Lokayukta institution has come into existence in different years, in different States in India.
Orissa is the first state to present a bill on establishment of Lokayukta in 1970; however,
Maharashtra is the first state to have established the institution in 1972. Thereafter, this
institution was established in different States in different years namely: Maharashtra (1972),
Bihar (1974), Uttar Pradesh (1977), Madhya Pradesh (1981), Andhra Pradesh (1983), Himachal
Pradesh (1983), Karnataka (1984), Assam (1986), Gujarat (1988), Delhi (1995), Punjab (1996),
Kerala (1998), Chhattisgarh (2002), Uttaranchal (2002) and West Bengal (2003) and Haryana
(2004). The structure of the Lokayukta is not uniform across all the states. Some states have
UpaLokayukta under Lokayukta and in some states; the Lokayukta doesnt have suo moto
powers of instigating an enquiry.
Kerala State has an Ombudsman for Local Self Government institutions like Panchayats,
Municipalities and Corporations. He or she can enquire/investigate into allegations of action,
inaction, corruption and mal administration. A Retd. Judge of the High Court is appointed by the
Governor for a term of 3 years. The appointment is made under the provisions of the Kerala
Panchayat Raj Act.

In the State of Rajasthan, the Lokayukta institution was established in the year 1973 after the
Rajasthan Lokayukta and Up-Lokayuktas Act, 1973 was passed by the State Legislature and
received assent of the President on 26.3.1973.
The Lokayukta helps people bring corruption to the fore mainly amongst the politicians and
officers in the government service. It is to be noted that the Lokayukta conducts raids. But
surprisingly, it does not have binding powers to punish anyone. Owing to this, many acts of the
LokAyukta have borne not enough fruit since the raided officers manage to free themselves from
the clutches of the Indian Law.
With the view to make the ombudsman system in states more effective and responsive to the
needs of people, the First All India Conference of Lokayukta and Up-Lokayukta held at Shimla
in May, 1986 passed certain resolutions some of them are stated below:
The institution of Lokayukta and Up-Lokayukta should be given constitutional status so that it
could discharge its functions effectively and independently.
That the nomenclature of the institution should be Lokayukta in every state.
That there should be uniformity throughout India in regard to the service conditions of the
Lokayuktas and Up- Lokayuktas.
That suo motu power of investigation should be conferred on the Lokayuktas and UpLokayuktas.
That the Lokayuktas and Up-Lokayuktas be deemed to be a High Court within the meaning of
the Contempt of Courts Act.
While providing for the broad powers of the Lokayukta to facilitate investigations, whether on
complaint or suo motu, into allegations of corruption or grievance of mal administration against
public functionaries, the Model Bill provides for:
Empowering Lokayukta to recommend to the competent authority stay or implementation of
the order or action complained against and to take such mandatory or preventive action as may
be specified.

Taking such action as is necessary including suspension of the public functionary complained
against; and
Granting interim relief to the complainant.
A further provision has been made that if the action of public functionary has resulted in any
injustice or hardship to the complainant, the Lokayukta may recommend remedial action within a
prescribed time frame. It is also provided that he can award compensation for loss or injury due
to arbitral action of the public functionary. A provision has also been made, for initiation of
prosecution of public functionary if Lokayukta is satisfied that the Public functionary has
committed an offence. A provision is also made for providing an independent investigative
agency to function under the exclusive control and direction of Lokayukta. The proposed Model
Bill also provides for vesting of discretion in the Lokayukta to publish reports in public interest
relating to exercise and performance of its functions and duties.
An amendment to the Constitution has been proposed to implement the Lokayukta uniformly
across Indian States. The proposed changes will make the institution of Lokayukta uniform
across the country as a three-member body, headed by a retired Supreme Court judge or high
court chief justice and comprise the state vigilance commissioner and a jurist or an eminent
Issues regarding the institution of Lokpal and Lokayukta
To establish a Lokpal at the centre and Lokayukta in the states, the proposed bill, that is, the
JanLokpal Bill, has been surrounded by many issues. This bill has been compared on various
points
with the Government bill, that is, Lokpal Bill. One of the major issue regarding the Jan
LokpalBill was to settle whether the Prime Minister (PM) be included or not in the purview of
Lokpal.One view emerged saying that PM must be excluded from the scope of the Bill.
In the cabinet form of the Government, the Prime Ministers office(PMO) occupies a locus of
decision making, and PM is the Chief whip of the cabinet. If the civil servants are included in
the Lokpal, the PMO will come under the scope of the bill.

Another point of issue regarding the same was whether MPs should fall within the scope
of Lokpal. The Governments view is that MPs must be excluded from the scope of Jan Lokpal
Billbecause the Lokpal will not deal with corruption allegations against the MPs for how they
voted or spoke in the Parliament. Such allegations are left to be probed by the Parliament itself.
Whereas, the opposite is the view of the supporters of Jan Lokpal Bill. Another side of
objectionis regarding Lokayukta to be implemented by the same bill. Governments view is that
Lokayukta should be implemented by a separate bill and only Lokpal should be implemented at
the centre. But this is also denied by the supporters of Jan Lokpal Bill because they want the
same bill to be implemented for both Lokpal and Lokayukta. It, therefore, can be said that its a
kind of a war going on for establishing these agencies. The Jan Lokpal Bill deals with grievance
redressal of citizens, in addition to the process forprosecuting corruption cases. It requires every
public authority to publish citizen's charters listingits commitments to citizens. But the
government Bill does not deal with grievance redressal