You are on page 1of 93

Subject: Comparative Public Law/ Systems of Governance

MODULE I

Introduction

i) Meaning and definition of Public Law

Generally speaking : Body of law governing relations between a state and its citizens, and
dealing with the structure and operation of the government. It covers administrative law,
constitutional law, and criminal law.

Other good examples of public law are tax law and criminal law.

Jowitt's Dictionary of English Law describes public law as having several branches, as follows:

"... law is either public or private.”

"Public law is that part of the law which deals with the state, either by itself or in its relations
with individuals, and is called constitutional, when it regulates the relations between the various
divisions of the sovereign power; and administrative, when it regulates the business which the
state has to do...."

Public law can be distinguished from private law, which regulates the private conduct between
individuals, without direct involvement of the government.

Private law and public law can overlap. For example, an unsolicited punch in the nose would
constitute a crime for which the government would prosecute under criminal law but for which
there would also be a private legal action possible by the injured party under tort law, which is
private law (although governments can be held responsible under tort law)

Comparison chart
Private Law Public Law

Governs: Relationships between The relationship between individuals and


individuals, such as the the state.
the Law of Contracts

1
Private Law Public Law

and the Law of Torts.

Subdivisions: Civil law, labor law, Constitutional, administrative andcriminal.


commercial law,
corporations law,
competition law.

Other terms: Common law (in None


Canada and much of
the US)

Private law governs relationships between individuals, such as contracts and the law of
obligations. In countries where it is known as “common law,” it also includes contracts made
between governments and individuals.
Public law is law governing the relationship between individuals (such as citizens and
companies) and the state.
Subdivisions

Private law includes civil law (such as contract law, law of torts and property law), labor law,
commercial law, corporations law and competition law.

Public law includes constitutional law, administrative law and criminal law. Constitutional law
considers the relationship between the state and the individual and between different branches of
the state. Administrative law regulates bureaucratic managerial procedures and defines powers of
administrative agencies. Criminal law involves that state imposing sanctions for defined crimes.

Example

Smoking indoors is a classic example of public v. private law regulation. As a public law,
smoking indoors is prohibited is certain countries. However, people formed membership clubs
where the agreement between the member and the property owner is a private law which the
government has no regulation over. Covered by this private law, the members are then allowed
to smoke indoors.

ii) Concept of Public Law

2
Public law (lat. jus publicum) is that part of law which governs relationships between individuals
and the government, and those relationships between individuals which are of direct concern to
the society. Public law comprises constitutional law, administrative law, tax law and criminal
law, as well as all procedural law. In public law, mandatory rules (not optional) prevail. Laws
concerning relationships between individuals belong to private law.

The relationships public law governs are asymmetric and unequal – government bodies (central
or local) can make decisions about the rights of individuals. However, as a consequence of the
rule of law doctrine, authorities may only act within the law (secundum et intra legem). The
government must obey the law. For example, a citizen unhappy with a decision of an
administrative authority can ask a court for judicial review.

Rights, too, can be divided into private rights and public rights. A paragon of a public right is the
right to welfare benefits – only a natural person can claim such payments, and they are awarded
through an administrative decision out of the government budget.

The distinction between public law and private law dates back to Roman law. It has been picked
up in the countries of civil law tradition at the beginning of the 19th century, but since then
spread to common law countries, too.

The borderline between public law and private law is not always clear in particular cases, giving
rise to attempts of theoretical understanding of its basis.

Theoretical distinction between private and public law

In German-language legal literature, there is an extensive discussion on the precise nature of the
distinction between public law and private law. Several theories have evolved, which are neither
exhaustive, nor are they mutually exclusive or separate from each other.

The interest theory has been developed by the Roman jurist Ulpian: "Publicum ius est, quod ad
statum rei Romanae spectat, privatum quod ad singulorum utilitatem. (Public law is that, which
concerns Roman state, private law is concerned with the interests of citizens.) The weak point of
this theory is that many issues of private law also affect the public interest. Also, what exactly is
this public interest?

The subjection theory focuses on explaining the distinction by emphasizing the subordination of
private persons to the state. Public law is supposed to govern this relationship, whereas private
law is considered to govern relationships where the parties involved meet on a level playing
field. This theory fails in areas commonly considered private law which also imply
subordination, such as employment law. Also, the modern state knows relationships in which it
appears as equal to a person.

3
The subject theory is concerned with the position of the subject of law in the legal relationship in
question. If it finds itself in a particular situation as a public person (due to memership in some
public body, such as a state or a municipality), public law applies, otherwise it is private law.

A combination of the subjection theory and the subject theory arguably provides a workable
distinction. Under this approach, a field of law is considered public law where one actor is a
public authority endowed with the power to act unilaterally (imperium) and this actor uses that
imperium in the particular relationship. In other words, all depends whether the public authority
is acting as a public or a private entity, say when ordering office supplies. This latest theory
considers public law to be a special instance and subset of private law.

There are areas of law, which do not seem to fit into either public or private law, such as
employment law – parts of it look like private law (the employment contract), other parts like
public law (the activities of an employment inspectorate when investigating workplace safety).

The distinction between public and private law might seem to be a purely academic debate, but it
also affects legal practice. It has bearing on the delineation between competences of different
courts and administrative bodies. Under Austrian constitution, for example, private law is among
the exclusive compentences of federal legislation, whereas public law is partly a matter of state
legislation.

Areas of public law


Constitutional law

In modern states, constitutional law lays out the foundations of the state. Above all, it postulates
the supremacy of law in the functioning of the state – the rule of law.

Secondly, it sets out the form of government – how its different branches work, how they are
elected or appointed, and the division of powers and responsibilities between them.
Traditionally, the basic elements of government are the executive, the legislature and the
judiciary.

And thirdly, in describing what are the basic human rights, which must be protected for every
person, and what further civil and political rights citizens have, it sets the fundamental borders to
what any government must and must not do.

In most jurisdictions, constitutional law is enshrined in a written document, the Constitution,


sometimes together with amendmends or other constitutional laws. In some countries, however,
such a supreme entrenched written document does not exist for historical and political reasons –
the Constitution of the United Kingdom is an unwritten one.

Administrative law

4
Administrative law refers to the body of law which regulates bureaucratic managerial procedures
and defines the powers of administrative agencies. These laws are enforced by the executive
branch of a government rather than the judicial or legislative branches (if they are different in
that particular jurisdiction). This body of law regulates international trade, manufacturing,
pollution, taxation, and the like. This is sometimes seen as a subcategory of civil law and
sometimes seen as public law as it deals with regulation and public institutions.

Criminal law

Criminal law involves the state imposing sanctions for defined crimes committed by individuals
or businesses, so that society can achieve its brand of justice and a peaceable social order. This
differs from civil law in that civil actions are disputes between two parties that are not of
significant public concern.

iii) Globalization of Comparative Public Law

Public law is the area of law that governs the relationships between governments, administrations
and civil society. Its most essential and traditional branches are constitutional law, administrative
law and public international law (including financial and criminal law to a certain extent).
Indeed, legal orders constantly interact with each other and sometimes overlap (as in Europe
where the Court of Justice of the EU interacts with the European Court of Human Rights).
Globalization further requires the cooperation and the harmonization of legal systems, leading
more or less to their unification. It fosters the emergence of so-called “mixed legal systems”
(E.Orücu). And above all, it blurs the distinction between the public and private spheres of the
society as well as the distinction between public law and private law. It considers law in its many
aspects, including its political aspects, emphasizing on how political and legal orders interact in
the real world.

5
MODULE II

THE BRITISH CONSTITUTION

We enjoy some features of a democracy, but our constitution is profoundly undemocratic. It is


"not worth the paper it's not written on" according to one MP. Professor Stephen Haseler once
described it as "whatever the government wants it to be".

The British constitution is unwritten or, to be more precise, 'uncodified'. This means that, unlike
in most modern democracies, there is no single document which explains how we are governed.

Instead constitutional experts point to a number of treaties, laws and conventions (another word
for 'habits') which together make up the constitution. These include:

 Acts of Parliament
 Treaties
 EU law
 Common Law
 Conventions
 Royal Prerogative
 Works of authority

This means it requires a considerable amount of study and probably a degree in politics or law to
fully understand how Britain is governed. It is one of the least intelligible, least democratic and
least accountable constitutions in the democratic world. Contrast this with, say, Ireland, which
has a simple and readable written constitution, clearly setting out who has what power, how they
got it and how they can be removed from office.

Who gives power to who in Britain

In any constitution, power has to come from somewhere and must reside with someone. In
Britain it comes from the Crown and resides with the government and parliament. The people
barely get a look-in, being given only the occasional chance to participate in the formal political
process.

One key feature of the constitution is the continuation of arbitrary, unlimited and unaccountable
power - all of which derive from the Crown. Most of these are exercised by the government,
some continue to be exercised by the Queen.

The constitutional powers of the monarch

6
The Queen herself retains four key constitutional powers. Only the Queen herself may exercise
these powers. No minister or advisor may exercise these powers on her behalf.

The power to appoint the Prime Minister

Legally, the Queen has the power to appoint whomever she wishes to be the Prime Minister.
Equally, if she so decided, she could appoint nobody to the office and could keep it vacant. There
is no legal requirement even that the person appointed as Prime Minister be a Member of
Parliament. Conventionally, however, the Prime Minister is the leader of the party with an
overall majority of seats in the House of Commons. As long as there is such a majority, and as
long as the party concerned has a clear leader, the Queen will have no real choice. But these
things are not always so clear.

In 1957, when the Conservative party was in office, it was not clear who should succeed Eden as
leader of the party and Prime Minister. The Queen effectively chose Macmillan over Butler. In
1963, when Macmillan was too ill to continue, the Queen, in the words of her biographer,
allowed herself to be 'duped by' Macmillan into once again ensuring that Butler did not become
Prime Minister, inviting Sir Alec Douglas Home to form a Government. The Queen's biographer
describes this as 'the biggest political misjudgement of her reign'. Finally, in 1974 when there
was a Hung Parliament no one party commanded a majority of seats in the Commons. This time
the party leaders acted wisely, effectively keeping the Queen out of it until it had become clear
that Harold Wilson should be invited to form a minority administration. Shockingly, there is no
guarantee that this would necessarily happen again.

The power to dissolve Parliament

A dissolution of Parliament is the device that triggers a General Election. Only the Queen can
dissolve Parliament and she has the power so to act at any time, for any reason, or for none.
Normally the Queen will dissolve Parliament only on the advice of the Prime Minister. But
Edward VII insisted on a dissolution in 1910 before he would agree to act on certain policies
preferred by the Prime Minister of the day (Asquith). A full constitutional crisis was prevented
only by the King's death and his replacement by George V.

In 1974 Prime Minister Harold Wilson called a second election following a very narrow victory
over his Conservative opponents a few months earlier. It has been made clear since that the
Queen was under no obligation to grant this request for an election. The Queen had the power to
tell Wilson that the people had only recently been asked to vote and that their decision should be
respected, that it was up to him to find a way to make his minority government work. In the
event she granted his wish and he was returned with a small majority.

In 1990, when Margaret Thatcher was going through her prolonged removal from office at the
hands of her parliamentary colleagues, there were real fears that she would out-maneuver them
by calling an election. The Queen would have been within her 'rights' to deny such a request on
the grounds that it was self-serving, and not in the interests of the country.

7
The power to dismiss the Government

Legally, the Queen has the power to dismiss the Government at any time and for any reason or
for none. No exercise of this power could be struck down by any court of law. This power was
last exercised in the United Kingdom by William IV in 1834, but it remains in place. It was
exercised with devastating effect in 1975 in Australia.

The power to withhold royal assent to legislation passed by the Houses of Parliament

No Bill can become a legally binding Act of Parliament unless and until it receives the royal
assent. This means that the Queen has a veto on all legislation passed by Parliament. She has the
power to withhold her assent to any legislation for any reason or for none. Were she to exercise
this power no court could hold it illegal. This is an astonishing power. It was last exercised in the
United Kingdom by Queen Anne in 1708 but has been threatened to be exercised several times in
the twentieth century, not least, it is reported, by the current heir to the throne, Prince Charles.

The powers are very real

Even if some of these powers have not been exercised in the United Kingdom in many years, do
not be fooled. Legally, they still exist. Several of them have been much more recently exercised
by the Crown in Australia (where the Queen's appointed representative dismissed the
democratically elected Government of the day in 1975) and in Canada (where the Queen's
appointed representative prorogued Parliament for several weeks in late 2008, preventing it from
performing its democratic and constitutional functions).

Crown powers exercised by the government

None of these powers has ever been conferred on the Government by our elected representatives
in Parliament. They are not democratic powers, but have been inherited by the Government of
the day directly from the Crown, bypassing the people entirely. They confer on the Government
vast power. The exercise of this power is discretionary. Both Parliament and the courts of law
find it exceptionally difficult to subject the exercise of these powers to meaningful standards of
review and accountability. Gordon Brown's Government accepted as much in July 2007, when it
conceded that 'when the executive relies on the power of the royal prerogative [...] it is difficult
for Parliament to scrutinise and challenge the Government's actions'.

The Government's prerogative powers include the following:

 the power to make treaties


 the powers to declare war and to deploy Her Majesty's Armed Forces overseas

8
 the powers to employ civil servants and to change the terms and conditions of their
employment
 the conduct of diplomacy
 the governance of Britain's overseas territories
 the appointment and removal of ministers
 the appointment of peers
 the grant of honours
 the claiming of public interest immunity
 the granting and revoking of passports

In recent years the exercise of several of these powers has proved to be intensely controversial.

 In 1984 Mrs Thatcher unilaterally decided to ban civil servants employed at GCHQ from
joining or forming trade unions
 In 1992 ministers in John Major's Government used (and abused) the power to claim
public interest immunity (PII) in order to prevent embarrassing documents concerning
Britain's arms trade with Iraq being disclosed in court
 In 2003 Tony Blair used the power to declare war to wage war in Iraq, on a false
prospectus, and without needing to acquire prior parliamentary approval. When he
became Prime Minister Gordon Brown said he would surrender this power, but to date he
has yet to make good this promise and, indeed, in 2008 he significantly watered it down

Parliamentary supremacy and the rule of law


In the 19th century, A. V. Dicey, a highly influential constitutional scholar and lawyer, wrote of
the twin pillars of the British constitution in his classic work An Introduction to the Study of the
Law of the Constitution (1885). These pillars are the principle of Parliamentary sovereignty and
the rule of law. The former means that Parliament is the supreme law-making body: its Acts are
the highest source of English law (the concept of parliamentary sovereignty is disputed in Scots
law, seeMacCormick v Lord Advocate). The latter is the idea that all laws and government
actions conform to principles. These principles include equal application of the law: everyone is
equal before the law and no person is above the law, including those in power. Another is no
person is punishable in body or goods without a breach of the law: as held in Entick v
Carrington, unless there is a clear breach of the law, persons are free to do anything, unless the
law says otherwise; thus, no punishment without a clear breach of the law.

According to the doctrine of parliamentary sovereignty, Parliament may pass any legislation that
it wishes. By contrast, in countries with a codified constitution, the legislature is normally
forbidden from passing laws that contradict that constitution: constitutional amendments require
a special procedure that is more arduous than that for regular laws.

There are many Acts of Parliament which themselves have constitutional significance. For
example, Parliament has the power to determine the length of its term. By the Parliament Acts
1911 and 1949, the maximum length of a term of parliament is five years but this may be
9
extended with the consent of both Houses. This power was most recently used during World War
II to extend the lifetime of the 1935 parliament in annual increments up to 1945. Parliament also
has the power to change the make-up of its constituent houses and the relation between them.
Examples include the House of Lords Act 1999 which changed the membership of the House of
Lords, the Parliament Acts 1911 and 1949 which altered the relationship between the House of
Commons and the House of Lords and the Reform Act 1832 which made changes to the system
used to elect members of the House of Commons.

The power extended to Parliament includes the power to determine the line of succession to the
British throne. This power was used to pass His Majesty's Declaration of Abdication Act 1936,
which gave constitutional effect to the abdication of Edward VIII and removed any of his
putative descendants from the succession, and most recently to pass the Succession to the Crown
Act 2013, which changed the succession to the throne to absolute primogeniture (not dependent
on gender) and also removed the disqualification of marrying a Catholic. Parliament also has the
power to remove or regulate the executive powers of the Monarch.

Parliament consists of the Monarch, the House of Commons and the House of Lords. The House
of Commons consists of 650 members elected by the people from single-member constituencies
under a first past the post system. Following the passage of the House of Lords Act 1999, the
House of Lords consists of 26 bishops of the Church of England (Lords Spiritual), 92
representatives of the hereditary peers and several hundred life peers. The power to nominate
bishops of the Church of England and to create hereditary and life peers is exercised by the
Monarch, on the advice of the Prime Minister. By the Parliament Acts 1911 and 1949 legislation
may, in certain circumstances, be passed without the approval of the House of Lords. Although
all legislation must receive the approval of the Monarch (Royal Assent), no Monarch has
withheld such assent since 1708.

Following the accession of the UK to European Economic Community (now the European
Union) in 1972, the UK became bound by European law and more importantly, the principle of
thesupremacy of European Union law. According to this principle, which was outlined by
theEuropean Court of Justice in 1964 in the case of Costa v. ENEL, laws of member states that
conflict with EU laws must be disapplied by member states' courts. The conflict between the
principles of the primacy of EU law and of parliamentary supremacy was illustrated in the
judgment in Thoburn v Sunderland City Council, which held that the European Communities Act
1972, the Act that initiated British involvement in the EU, could not be implicitly
repealed simply by the passing of subsequent legislation inconsistent with European law. The
court went further and suggested that the 1972 Act formed part of a category of special
"constitutional statutes" that were not subject to implied repeal. This exception to the doctrine of
implied repeal was something of a novelty, though the court stated that it remained open for
Parliament to expressly repeal the Act. It is politically inconceivable at the present time that
Parliament would do so and constitutional lawyers have also questioned whether such a step
would be as straightforward in its legal effects as it might seem. The Thoburn judgment was

10
handed down only by the Divisional Court (part of the High Court), which occupies a relatively
low level in the legal system.

The House of Commons alone possesses the power to pass a motion of no confidence in the
Government, which requires the Government either to resign or seek fresh elections (this
principle was codified in the Fixed-term Parliaments Act 2011—see below for more details).
Such a motion does not require passage by the Lords or Royal Assent.
Parliament traditionally also has the power to remove individual members of the government
byimpeachment (with the Commons initiating the impeachment and the Lords trying the case),
although this power has not been used since 1806. By the Constitutional Reform Act 2005 it has
the power to remove individual judges from office for misconduct.
Additionally, Dicey has observed that the constitution of Belgium (as it stood at the time)
"comes very near to a written reproduction of the English constitution."

Constitutional monarchy

The United Kingdom is a constitutional monarchy: succession to the British throne is hereditary.

Under the British Constitution, sweeping executive powers, known as the royal prerogative, are
nominally vested in the Monarch. In exercising these powers the Monarch normally defers to the
advice of the Prime Minister or other ministers. This principle, which can be traced back to the
Restoration, was most famously articulated by the Victorian writer Walter Bagehot as "the
Queen reigns, but she does not rule".

The precise extent of the royal prerogative has never formally been delineated, but in 2004, Her
Majesty's Government published some of the powers, in order to be more transparent:

Domestic powers

 The power to dismiss and appoint a Prime Minister


 The power to dismiss and appoint other ministers
 The power to summon and prorogue Parliament
 The power to grant or refuse Royal Assent to bills (making them valid and law)
 The power to commission officers in the Armed Forces
 The power to command the Armed Forces of the United Kingdom
 The power to appoint members to the Queen's Council
 The power to issue and withdraw passports
 The power to grant Prerogative of mercy (though Capital Punishment is abolished, this
power is still used to remedy errors in sentence calculation)
 The power to grant honours
 The power to create corporations via Royal Charter
 The power to appoint bishops and archbishops of the Church of England.

11
 Foreign powers
 The power to ratify and make treaties
 The power to declare War and Peace
 The power to deploy the Armed Forces overseas
 The power to recognise states
 The power to credit and receive diplomats

The most important prerogative still personally exercised by the Monarch is the choice of whom
to appoint Prime Minister. The most recent occasion the monarch has had to exercise these
powers were in February 1974, when Prime Minister Edward Heath resigned after failing to win
an overall majority at the General Election or to negotiate a coalition. Queen Elizabeth II
appointed Harold Wilson, leader of the Labour Party, as Prime Minister, exercising her
prerogative after extensive consultation with the Privy Council. The Labour Party had the largest
number of seats in the House of Commons, but not an overall majority. The 2010 general
election also resulted in a hung parliament. After several days of negotiations, between the
parties, Queen Elizabeth II invited David Cameron to form a government on the advice of the
outgoing Prime Minister Gordon Brown.

The Monarch formerly enjoyed the power to dissolve Parliament (normally on the request of the
Prime Minister). However, this power was explicitly removed from the Monarch by the Fixed-
term Parliaments Act 2011.

The last Monarch to dismiss a Prime Minister who had not suffered a defeat on a motion of
confidence in the House of Commons, or to appoint a Prime Minister who clearly did not enjoy a
majority in that House, was William IV who in 1834 dismissed the Government of Lord
Melbourne, replacing him with Robert Peel (The Duke of Wellington briefly heading a caretaker
ministry as Peel was on holiday in Italy at the time). Peel resigned after failing to win the 1835
General Election - prior to the 1832 Reform Act, which reduced the number of rotten and pocket
boroughs, it would have been very unusual for a government with Royal backing to be defeated
in this way.

Queen Victoria was the last Monarch to veto a ministerial appointment. In 1892, she refused
William Ewart Gladstone's advice to include Henry Labouchère (a radical who had insulted the
Royal Family) in the Cabinet.

The last Monarch to veto legislation passed by Parliament was Queen Anne, who withheld assent
from the Scottish Militia Bill 1708. However, the possibility that a royal veto might be exercised
independently by the Monarch remained for at least two further centuries. Pitt the Younger
resigned in 1801 when George III made clear that he would veto Catholic Emancipation, which
he regarded as a breach of his oath to uphold the Church of England - the measure did not pass
until 1829 when George IV was persuaded to drop his opposition. As late as 1914, George V
12
took legal advice on withholding the Royal Assent from the Third Irish Home Rule Bill, which
the Liberal government was pushing through parliament having recently removed the Lords' veto
(Parliament Act 1911) and in the teeth of threatened armed resistance in Ulster. The King
decided that he should not withhold the Assent without "convincing evidence that it would avert
a national disaster, or at least have a tranquillizing effect on the distracting conditions of the
time".

Prime Minister and Government

The Prime Minister is appointed by the Monarch. When one party has an absolute majority in the
House of Commons, the Monarch appoints the leader of that party as Prime Minister. When
there is a hung parliament, or the identity of the leader of the majority party is not clear (as was
often the case for the Conservative Party up to the 1960s, and for all parties in the nineteenth
century), the Monarch has more flexibility in his or her choice. The Monarch appoints and
dismisses other ministers on the advice of the Prime Minister (and such appointments and
dismissals occur quite frequently as part of cabinet reshuffles). The Prime Minister, together with
other ministers, form the Government. The Government often includes ministers whose posts are
sinecures (such as the Chancellor of the Duchy of Lancaster) or ministers with no specific
responsibilities (minister without portfolio): such positions may be used by the Prime Minister as
a form of patronage, or to reward officials such as the Chairman of the ruling Party with a
governmental salary.

If the Commons votes against the Government on a motion of no confidence, the Fixed-term
Parliaments Act 2011 specifies that Parliament automatically dissolves unless a subsequent
motion of confidence is passed within fourteen days. The Prime Minister and government would
have the option of resigning in order to allow a replacement government the chance to obtain a
vote of confidence within the required timeframe, or remaining in office to fight the subsequent
general election. The Government usually resigns immediately after defeat in a general election,
though this is not strictly required. For example, Stanley Baldwin's government lost its majority
in the general election of December 1923, but did not resign until defeated in a confidence vote
in January 1924.

The Prime Minister and all other ministers take office immediately upon appointment by the
Monarch. In the United Kingdom, unlike many other countries, there is no requirement for a
formal vote of approval by the legislature (either of the Government as a whole or of its
individual members) before they may assume office.

The Prime Minister and all other Ministers normally serve concurrently as members of the House
of Commons or House of Lords, and are obliged by collective responsibility to cast their
Parliamentary votes for the Government's position, regardless of their personal feelings or the
interests of their constituents. The Prime Minister is normally a member of the House of
Commons. The last Prime Minister to be a member of the House of Lords was Alec Douglas-

13
Home; however, he resigned from the Lords and became a member of the Commons shortly after
his appointment as Prime Minister in 1963 (there was a period of about two weeks during which
he served as Prime Minister despite belonging to neither House). The last Prime Minister to
serve a full administration from the House of Lords was Robert Cecil, 3rd Marquess of
Salisbury, who served until 1902.

Thus the executive ("Her Majesty's Government") is "fused" with Parliament. Because of a
number of factors, including the decline of the Monarch and the House of Lords as independent
political actors, an electoral system that tends to produce absolute majorities for one party in the
Commons, and the strength of party discipline in the Commons (including the built-in payroll
vote in favour of the Government), the Prime Minister tends to have sweeping powers checked
only by the need to retain the support of his or her own MPs. The phrase elective dictatorship
was coined by former Lord Chancellor Quintin Hogg in 1976 to highlight the enormous potential
power of government afforded by the constitution.[21]

The need of a Prime Minister to retain the support of her own MPs was illustrated by the case of
Margaret Thatcher, who resigned in 1990 after being challenged for the leadership of the
Conservative Party. The strength of party discipline within the Commons, enforced by the whip
system, is shown by the fact that the two most recent motions of no confidence in which a
Government was defeated occurred in 1924 and 1979.

Judiciary

As mentioned above, there are three separate judicial systems in the United Kingdom: that of
England and Wales, that of Scotland, and that of Northern Ireland. Under the Constitutional
Reform Act 2005 the final court of appeal for all cases, other than Scottish criminal cases, is the
newly created Supreme Court of the United Kingdom: for Scottish criminal cases, the final court
of appeal remains the High Court of Judiciary.

Vacancies in the Supreme Court are filled by the Monarch based on the recommendation of a
special selection commission consisting of that Court's President, Deputy President, and
members of the judicial appointment commissions for the three judicial systems of the UK. The
choice of the commission may be vetoed by the Lord Chancellor (a government minister).
Members of the Supreme Court may be removed from office by Parliament, but only for
misconduct.

Judges may not sit or vote in either House of Parliament (before the 2005 Act, they had been
permitted to sit and vote in the House of Lords).

14
Disputes about the nature of the UK Constitution

The legal scholar Eric Barendt argues that the uncodified nature of the United Kingdom
constitution does not mean it should not be characterised as a "constitution", but also claims that
the lack of an effective separation of powers, and the fact that parliamentary sovereignty allows
Parliament to overrule fundamental rights, makes it to some extent a 'facade' constitution.

In one article, Lord Scarman presents a spirited argument for a written constitution for the UK,
but still refers to the 1688 compromise and resulting Acts of Parliament as a constitution.

A. V. Dicey identified that ultimately "the electorate are politically sovereign," and Parliament is
legally sovereign. Barendt argues that the greater political party discipline in the House of
Commons that has evolved since Dicey's era, and the reduction in checks on governmental
power, has led to an excessively powerful government that is not legally constrained by the
observance of fundamental rights. A Constitution would impose limits on what Parliament could
do. To date, the Parliament of the UK has no limit on its power other than the possibility of
extra-parliamentary action (by the people) and of other sovereign states (pursuant to treaties
made by Parliament and otherwise).

Proponents of a codified constitution argue it would strengthen the legal protection of democracy
and freedom. As a strong advocate of the "unwritten constitution", Dicey highlighted that
English rights were embedded in the general English common law of personal liberty, and "the
institutions and manners of the nation". Opponents of a codified constitution argue that the
country is not based on a founding document that tells its citizens who they are and what they
can do. There is also a belief that any unwarranted encroachment on the spirit of constitutional
authority would be stiffly resisted by the British people, a perception expounded by the 19th
century American judge Justice Bradley in the course of delivering his opinion in a case heard in
Louisiana in 1873: "England has no written constitution, it is true; but it has an unwritten one,
resting in the acknowledged, and frequently declared, privileges of Parliament and the people, to
violate which in any material respect would produce a revolution in an hour."

Constitution of USA
The Constitution of the United States is the supreme law of the United States of America. The
Constitution originally consisted of seven Articles. The first three Articles embody the doctrine
of the separation of powers, whereby the federal government is divided into three branches: the
legislature, consisting of the bicameral Congress; the executive, consisting of the President; and
the judiciary, consisting of the Supreme Court and other federal courts. The fourth and sixth
Articles frame the doctrine of federalism, describing the relationship between State and State,

15
and between the several States and the federal government. The fifth Article provides the
procedure for amending the Constitution. The seventh Article provides the procedure for
ratifying the Constitution.

The Constitution was adopted on September 17, 1787, by the Constitutional Convention in
Philadelphia, Pennsylvania, and ratified by conventions in eleven States. It went into effect on
March 4, 1789.

Since the Constitution was adopted, it has been amended twenty-seven times. The first ten
amendments (along with two others that were not ratified at the time) were proposed by
Congress on September 25, 1789, and were ratified by the necessary three-fourths of the States
on December 15, 1791. These first ten amendments are known as the Bill of Rights.

The Constitution is interpreted, supplemented, and implemented by a large body of constitutional


law. The Constitution of the United States was the first constitution of its kind, and has
influenced the constitutions of many other nations.

The Articles of Confederation and Perpetual Union was the first constitution of the United States
of America. It was drafted by the Continental Congress in mid-1776 to late 1777, and formal
ratification by all 13 states was completed in early 1781. The chief problem with the new
government under the Articles of Confederation was, in the words of George Washington, "no
money."

The Continental Congress could print money; but, by 1786, the currency was worthless. (A
popular phrase of the times chimed that a useless object or person was .. not worth a Continental,
referring to the Continental dollar.) Congress could borrow money, but couldn't pay it back. No
state paid all their U.S. taxes; Georgia paid nothing, as did New Jersey in 1785. Some few paid
an amount equal to interest on the national debt owed to their citizens, but no more. No interest
was paid on debt owed foreign governments. By 1786, the United States would default on
outstanding debts as their dates came due.

In the world of 1787, the United States could not defend its sovereignty as an independent
nation. Most of the troops in the 625-man U.S. Army were deployed facing—but not
threatening—British forts being maintained on American soil. Those troops had not been paid;
some were deserting and others threatening mutiny. Spain closed New Orleans to American
commerce; U.S. officials protested, to no effect. Barbary Pirates began seizing American ships of
commerce; the Treasury had no funds to pay the pirates' extortionate demands. If any extant or
new military crisis required action the Congress had no credit or taxing power to finance a
response.

The new government (of the United States) was proving inadequate to the obligations of
sovereignty within the confederation of the individual states. That is, although the Treaty of Paris
(1783) was signed between Great Britain and the United States and each of the states by name,

16
the various individual states proceeded blithely to violate it. New York and South Carolina
repeatedly prosecuted Loyalists for wartime activity and redistributed their lands over the
protests of both Great Britain and the Confederation Congress. Individual state legislatures
independently laid embargoes, negotiated directly with foreigners, raised armies and made war,
all violating the letter and the spirit of the “Articles of Confederation and Perpetual Union”.

During Shays' Rebellion in Massachusetts, Congress could provide no money to support an


endangered constituent state. Nor could Massachusetts pay for its own internal defense; General
Benjamin Lincoln was obliged to raise funds from Boston merchants to pay for a volunteer army.
During the next Convention, James Madison angrily questioned whether the Articles of
Confederation was a binding compact or even a viable government. Connecticut paid nothing
and "positively refused" to pay U.S. assessments for two years. A rumor had it that a "seditious
party" of New York legislators had opened a conversation with the Viceroy of Canada. To the
south, the British were said to be openly funding Creek Indian raids on white settlers in Georgia
and adjacent territory. Savannah was fortified and the State of Georgia was under martial law.

Congress was paralyzed. It could do nothing significant without nine states, and some legislation
required all thirteen. When a state produced only one member in attendance, its vote was not
counted. If a state's delegation were evenly divided, its vote could not be counted towards the
nine-count requirement.[10] The Articles Congress had "virtually ceased trying to govern." The
vision of a "respectable nation" among nations seemed to be fading in the eyes of revolutionaries
such as George Washington, Benjamin Franklin and Rufus King. Their dream of a republic, a
nation without hereditary rulers, with power derived from the people in frequent elections, was in
doubt.

Why a Constitution?

The need for the Constitution grew out of problems with the Articles of Confederation, which
established a "firm league of friendship" between the states, and vested most power in a
Congress of the Confederation. This power was, however, extremely limited — the central
government conducted diplomacy and made war, set weights and measures, and was the final
arbiter of disputes between the states. Crucially, it could not raise any funds itself, and was
entirely dependent on the states themselves for the money necessary to operate. Each state sent a
delegation of between two and seven members to the Congress, and they voted as a bloc with
each state getting one vote. But any decision of consequence required a unanimous vote, which
led to a government that was paralyzed and ineffectual.

A movement to reform the Articles began, and invitations to attend a convention in Philadelphia
to discuss changes to the Articles were sent to the state legislatures in 1787. In May of that year,

17
delegates from 12 of the 13 states (Rhode Island sent no representatives) convened in
Philadelphia to begin the work of redesigning government. The delegates to the Constitutional
Convention quickly began work on drafting a new Constitution for the United States.

Drafting the Constitution


The Constitutional Convention began deliberations on May 25, 1787. The delegates were
generally convinced that an effective central government with a wide range of enforceable
powers must replace the weaker Congress established by the Articles of Confederation. The high
quality of the delegates to the convention was remarkable. As Thomas Jefferson in Paris wrote to
John Adams in London, "It really is an assembly of demigods." According to one view, the
Framers embraced ambiguity in the constitutional text, since it allows for compromise and
cooperation about broad concepts rather than specific circumstances.[16]
Delegates used two streams of intellectual tradition, and any one delegate could be found using
both or a mixture depending on the subject under discussion: foreign affairs, the economy,
national government, or federal relationships among the states. The Virginia Plan recommended
a consolidated national government, generally favoring the most populated states. It used the
philosophy of John Locke to rely on consent of the governed, Montesquieu for divided
government, and Edward Coke to emphasize civil liberties. The New Jersey Plan generally
favored the less populated states, using the philosophy of English Whigs such as Edmund
Burke to rely on received procedure, and William Blackstone to emphasize sovereignty of the
legislature.
The Convention devolved into a “Committee of the Whole” to consider the fifteen propositions
of the Virginia Plan in their numerical order. These discussions continued until June 13, when
the Virginia resolutions in amended form were reported out of committee.
All agreed to a republican form of government grounded in representing the people in the states.
For the legislature, two issues were to be decided: how the votes were to be allocated among the
states in the Congress, and how the representatives should be elected. The question was settled
by the Connecticut Compromise or "Great Compromise". In the House, state power was to be
based on population and the people would vote. In the Senate, state power was to be based on
state legislature election, with two Senators generally to be elected by different state legislatures
to better reflect the long term interests of the people living in each state.
The Great Compromise ended the stalemate between “patriots” and “nationalists”, leading to
numerous other compromises in a spirit of accommodation. There were sectional interests to be
balanced by the three-fifths compromise; reconciliation on Presidential term, powers, and
method of selection; and jurisdiction of the federal judiciary. Debates on the Virginia resolutions
continued. The 15 original resolutions had been expanded into 23.
On July 24, a committee of five (John Rutledge (SC), Edmund Randolph (VA), Nathaniel
Gorham (MA), Oliver Ellsworth (CT), and James Wilson (PA)) was elected to draft a detailed
constitution. The Convention adjourned from July 26 to August 6 to await the report of this

18
"Committee of Detail". Overall, the report of the committee conformed to the resolutions
adopted by the Convention, adding some elements.
From August 6 to September 10, the report of the committee of detail was discussed, section-by-
section, and clause-by-clause. Details were attended to, and further compromises were effected.
Toward the close of these discussions, on September 8, a "Committee of Style" of five was
appointed. Its final version was taken up on Monday, September 17, at the Convention's final
session. Several of the delegates were disappointed in the result, a makeshift series of
unfortunate compromises. Some delegates left before the ceremony, and three others refused to
sign. Of the thirty-nine signers, Benjamin Franklin summed up addressing the Convention,
"There are several parts of this Constitution which I do not at present approve, but I am not sure I
shall never approve them." He would accept the Constitution, "because I expect no better and
because I am not sure that it is not the best."
The advocates of the Constitution were anxious to obtain the unanimous support of all twelve
states represented in the Convention. Their accepted formula was “Done in Convention, by the
unanimous consent of the States present.” George Washington noted in his diary that night, the
proposal was agreed to by eleven state delegations and the lone Mr. Hamilton for New York.
Transmitted to the Articles Congress then sitting in New York City, the Constitution was
forwarded to the states by Congress recommending the ratification process outlined in the
Constitution. Each state legislature was to call elections for a “Federal Convention” to ratify the
Constitution. They expanded the franchise beyond the Constitutional requirement to more nearly
embrace “the people”. Eleven ratified initially, and all thirteen unanimously did so a year later.
The Articles Congress certified eleven states' beginning the new government, and called the
states to hold elections to begin operation. It then dissolved itself on March 4, 1789, the day the
first session of the First Congress began. George Washington was inaugurated as President two
months later.

The Bill of Rights

One of the principal points of contention between the Federalists and Anti-Federalists was the
lack of an enumeration of basic civil rights in the Constitution. Many Federalists argued, as in
Federalist No. 84, that the people surrendered no rights in adopting the Constitution. In several
states, however, the ratification debate in some states hinged on the adoption of a bill of rights.
The solution was known as the Massachusetts Compromise, in which four states ratified the
Constitution but at the same time sent recommendations for amendments to the Congress.

James Madison introduced 12 amendments to the First Congress in 1789. Ten of these would go
on to become what we now consider to be the Bill of Rights. One was never passed, while
another dealing with Congressional salaries was not ratified until 1992, when it became the 27th
Amendment. Based on the Virginia Declaration of Rights, the English Bill of Rights, the

19
writings of the Enlightenment, and the rights defined in the Magna Carta, the Bill of Rights
contains rights that many today consider to be fundamental to America.

 The First Amendment provides that Congress make no law respecting an establishment of
religion or prohibiting its free exercise. It protects freedom of speech, the press,
assembly, and the right to petition the Government for a redress of grievances.

 The Second Amendment gives citizens the right to bear arms.

 The Third Amendment prohibits the government from quartering troops in private homes,
a major grievance during the American Revolution.

 The Fourth Amendment protects citizens from unreasonable search and seizure. The
government may not conduct any searches without a warrant, and such warrants must be
issued by a judge and based on probable cause.

 The Fifth Amendment provides that citizens not be subject to criminal prosecution and
punishment without due process. Citizens may not be tried on the same set of facts twice,
and are protected from self-incrimination (the right to remain silent). The amendment
also establishes the power of eminent domain, ensuring that private property is not seized
for public use without just compensation.

 The Sixth Amendment assures the right to a speedy trial by a jury of one's peers, to be
informed of the crimes with which they are charged, and to confront the witnesses
brought by the government. The amendment also provides the accused the right to
compel testimony from witnesses, and to legal representation.

 The Seventh Amendment provides that civil cases also be tried by jury.

20
 The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual
punishments.

 The Ninth Amendment states that the list of rights enumerated in the Constitution is not
exhaustive, and that the people retain all rights not enumerated.

 The Tenth Amendment assigns all powers not delegated to the United States, or
prohibited to the states, to either the states or to the people.

Federalism
Federalism is a political concept in which a group of members are bound together by covenant
(Latin: foedus, covenant) with a governing representative head. The term "federalism" is also
used to describe a system of government in which sovereignty is constitutionally divided
between a central governing authority and constituent political units (such as states or provinces).
Federalism is a system based upon democratic rules and institutions in which the power to
govern is shared between national and provincial/state governments, creating what is often called
a federation.

In Europe, "Federalist" is sometimes used to describe those who favor a common federal
government, with distributed power at regional, national and supranational levels. Most
European federalists want this development to continue within the European Union. European
federalism originated in post-war Europe; one of the more important initiatives was Winston
Churchill's speech in Zurich in 1946.

In the United States, federalism originally referred to belief in a stronger central government.
When the U.S. Constitution was being drafted, the Federalist Party supported a stronger central
government, while "Anti-Federalists" wanted a weaker central government. This is very different
from the modern usage of "federalism" in Europe and the United States. The distinction stems
from the fact that "federalism" is situated in the middle of the political spectrum between a
confederacy and a unitary state. The U.S. Constitution was written as a reaction to the Articles of
Confederation, under which the United States was a loose confederation with a weak central
government. Further, during the American Civil War, members of the Confederate States of
America, which seceded in favor of a weaker central government, referred to pro-Union soldiers
of the United States government as "Federals." Thus in the United States "federalism" argued for
a stronger central government, relative to a confederacy.

21
In contrast, Europe has a greater history of unitary states than North America, thus European
"federalism" argues for a weaker central government, relative to a unitary state. The modern
American usage of the word is much closer to the European sense. As the power of the Federal
government has increased, some people have perceived a much more unitary state than they
believe the Founding Fathers intended. Most people politically advocating "federalism" in the
United States argue in favor of limiting the powers of the federal government, especially the
judiciary (see Federalist Society, New Federalism).

In Canada, federalism typically implies opposition to sovereigntist movements (most commonly


Quebec separatism).

The governments of Argentina, Australia, Brazil, India, and Mexico, among others, are also
organized along federalist principles.

Federalism may encompass as few as two or three internal divisions, as is the case in Belgium or
Bosnia and Herzegovina. In general, two extremes of federalism can be distinguished: at one
extreme, the strong federal state is almost completely unitary, with few powers reserved for local
governments; while at the other extreme, the national government may be a federal state in name
only, being a confederation in actuality.

In 1999, the Government of Canada established the Forum of Federations as an international


network for exchange of best practices among federal and federalizing countries. Headquartered
in Ottawa, the Forum of Federations partner governments include Australia, Brazil, Canada,
Ethiopia, Germany, India, Mexico, Nigeria, and Switzerland.

Some Christian denominations are organized on federalist principles; in these churches this is
known as ecclesiastic or theological federalism.

Examples of federalism

Australia

On January 1, 1901 the Australian nation emerged as a federation. The Australian continent was
colonized by the United Kingdom in 1788, who subsequently established six self-governing
colonies there. In the 1890s the governments of these colonies all held referendums on becoming
a unified, independent nation. When all the colonies voted in favour of federation, the Federation
of Australia commenced, resulting in the establishment of the Commonwealth of Australia in
1901. Whilst the Federation of Australia emerged in 1901, the States of Australia remained
colonies of Britain until 1986 when the UK and Australia passed the Australia Acts. The model

22
of Australian federalism adheres closely to the original model of the United States of America,
though through a Westminster system.

Brazil

In Brazil, the fall of the monarchy in 1889 by a military coup d'état led to the rise of the
presidential system, headed by Deodoro da Fonseca. Aided by well-known jurist Ruy Barbosa,
Fonseca established federalism in Brazil by decree, but this system of government would be
confirmed by every Brazilian constitution since 1891, although some of them would distort some
of the federalist principles. The 1937 Constitution, for example, granted the federal government
the authority to appoint State Governors (called interventors) at will, thus centralizing power in
the hands of President Getúlio Vargas. Brazil also uses the Fonseca system to regulate interstate
trade.

The Brazilian Constitution of 1988 introduced a new component to the ideas of federalism,
including municipalities as federal entities. Brazilian municipalities are now invested with some
of the traditional powers usually granted to states in federalism, and although they are not
allowed to have a Constitution, they are structured by an organic law.

Canada
In Canada, the system of federalism is described by the division of powers between the federal
parliament and the country's provincial governments. Under the Constitution Act (previously
known as the British North America Act) of 1867, specific powers of legislation are allotted.
Section 91 of the constitution gives rise to federal authority for legislation, whereas section 92
gives rise to provincial powers.

For matters not directly dealt with in the constitution, the federal government retains residual
powers; however, conflict between the two levels of government, relating to which level has
legislative jurisdiction over various matters, has been a longstanding and evolving issue. Areas
of contest include legislation with respect to regulation of the economy, taxation, and natural
resources.

23
India
The Government of India (referred to as the Union Government) was established by the
Constitution of India, and is the governing authority of a federal union of 29 states and 7 union
territories.

The governance of India is based on a tiered system, in which the Constitution of India
delineates the subjects on which each tier of government has executive powers. The Constitution
originally provided for a two-tier system of government, the Union Government (also known as
the Central Government), representing the Union of India, and the State governments. Later, a
third tier was added in the form of Panchayats and Municipalities. In the current arrangement,
The Seventh Schedule of the Indian Constitution delimits the subjects of each level of
governmental jurisdiction, dividing them into three lists:

Union List includes subjects of national importance such as defence of the country, foreign
affairs, banking, communications and currency. The Union Government alone can make laws
relating to the subjects mentioned in the Union List.

State List contains subjects of State and local importance such as police, trade, commerce,
agriculture and irrigation. The State Governments alone can make laws relating to the subjects
mentioned in the State List.

Concurrent List includes subjects of common interest to both the Union Government as well as
the State Governments, such as education, forest, trade unions, marriage, adoption and
succession. Both the Union as well as the State Governments can make laws on the subjects
mentioned in this list. If their laws conflict with each other, the law made by the Union
Government will prevail.

United States

Federalism in the United States

Federalism in the United States is the evolving relationship between state governments and the
federal government of the United States. American government has evolved from a system of
dual federalism to one of associative federalism. In "Federalist No. 46," James Madison asserted
that the states and national government "are in fact but different agents and trustees of the
people, constituted with different powers." Alexander Hamilton, writing in "Federalist No. 28,"
suggested that both levels of government would exercise authority to the citizens' benefit: "If
their [the peoples'] rights are invaded by either, they can make use of the other as the instrument
of redress."

Because the states were preexisting political entities, the U.S. Constitution did not need to define
or explain federalism in any one section but it often mentions the rights and responsibilities of
state governments and state officials in relation to the federal government. The federal

24
government has certain express powers (also called enumerated powers) which are powers
spelled out in the Constitution, including the right to levy taxes, declare war, and regulate
interstate and foreign commerce. In addition, the Necessary and Proper Clause gives the federal
government the implied power to pass any law "necessary and proper" for the execution of its
express powers. Other powers—the reserved powers—are reserved to the people or the states.
The power delegated to the federal government was significantly expanded by the Supreme
Court decision in McCulloch v. Maryland (1819), amendments to the Constitution following the
Civil War, and by some later amendments—as well as the overall claim of the Civil War, that the
states were legally subject to the final dictates of the federal government.

The Federalist party of the United States was opposed by the Democratic-Republicans, including
powerful figures such as Thomas Jefferson. The Democratic-Republicans mainly believed that: -
The Legislature had too much power (mainly because of the Necessary and Proper Clause) and
that they were unchecked. -The Executive had too much power, and that there was no check on
the executive. A dictator would arise. -A bill of rights should be coupled with the constitution to
prevent a dictator (then believed to eventually be the president) from exploiting citizens. The
federalists, on the other hand, argued that it was impossible to list all the rights and those that
were not listed could be easily overlooked because they were not in the official bill of rights.
Rather, rights in specific cases were to be decided by the judicial system of courts.

After the American Civil War, the federal government increased greatly in influence on everyday
life and in size relative to the state governments. Reasons included the need to regulate
businesses and industries that span state borders, attempts to secure civil rights, and the provision
of social services. The federal government acquired no substantial new powers until the
acceptance by the Supreme Court of the Sherman Anti-Trust Act.

From 1938 until 1995, the U.S. Supreme Court did not invalidate any federal statute as
exceeding Congress' power under the Commerce Clause. Most actions by the federal government
can find some legal support among the express powers, such as the Commerce Clause, whose
applicability has been narrowed by the Supreme Court in recent years. In 1995 the Supreme
Court rejected the Gun-Free School Zones Act in the Lopez decision, and also rejected the civil
remedy portion of the Violence Against Women Act of 1994 in the United States v. Morrison
decision. Recently, the Commerce Clause was interpreted to include marijuana laws in the
Gonzales v. Raich decision.

Dual federalism holds that the federal government and the state governments are co-equals, each
sovereign.

However, since the Civil War Era, the national courts often interpret the federal government as
the final judge of its own powers under dual federalism. The establishment of Native American
governments (which are separate and distinct from state and federal government) exercising
limited powers of sovereignty, has given rise to the concept of "bi-federalism."

25
MODULE III

Public Interest Litigation


locus standi
The word locus (plural loci) is Latin for "place". “Locus standi” is Latin for ‘place to stand’- In
law, the right to bring an action.

In law, locus standi means the right to bring an action, to be heard in court, or to address the
Court on a matter before it. Locus standi is the ability of a party to demonstrate to the court
sufficient connection to and harm from the law or action challenged to support that party’s
participation in the case. For example, in the United States, a person cannot bring a suit
challenging the constitutionality of a law unless the plaintiff can demonstrate that the plaintiff is
(or will be) harmed by the law. Otherwise, the court will rule that the plaintiff “lacks standing” to
bring the suit, and will dismiss the case without considering the merits of the claim of
unconstitutionality. In order to sue to have a court declare a law unconstitutional, there must be a
valid reason for whoever is suing to be there. The party suing must have something to lose in
order to sue unless they have automatic standing by action of law.

In law, standing or locus standi is the term for the ability of a party to demonstrate to the court
sufficient connection to and harm from the law or action challenged to support that party's
participation in the case. Standing exists from one of three causes:

1. The party is directly subject to an adverse effect by the statute or action in question, and
the harm suffered will continue unless the court grants relief in the form of damages or a
finding that the law either does not apply to the party or that the law is void or can be
nullified. This is called the "something to lose" doctrine, in which the party has standing
because they directly will be harmed by the conditions for which they are asking the
court for relief.

2. The party is not directly harmed by the conditions by which they are petitioning the court
for relief but asks for it because the harm involved has some reasonable relation to their
situation, and the continued existence of the harm may affect others who might not be
able to ask a court for relief. In the United States, this is the grounds for asking for a law
to be struck down as violating the First Amendment, because while the plaintiff might
not be directly affected, the law might so adversely affect others that one might never
know what was not done or created by those who fear they would become subject to the
law – the so-called "chilling effects" doctrine.
26
3. The party is granted automatic standing by act of law. Under some environmental laws in
the United States, a party may sue someone causing pollution to certain waterways
without a federal permit, even if the party suing is not harmed by the pollution being
generated. The law allows them to receive a portion of any fines collected by the
government from their violation of law. In some U.S. states, a person who believes a
book, film or other work of art is obscene may sue in their own name to have the work
banned directly without having to ask a District Attorney to do so.

4. The Supreme Court of Canada developed the concept of public interest standing in three
constitutional cases commonly called "the Standing trilogy": Thorson v. Canada
(Attorney General), Nova Scotia Board of Censors v. McNeil, and Minister of Justice v.
Borowski. The trilogy was summarized as follows in Canadian Council of Churches v.
Canada (Minister of Employment and Immigration):

5. It has been seen that when public interest standing is sought, consideration must be given
to three aspects. First, is there a serious issue raised as to the invalidity of legislation in
question? Second, has it been established that the plaintiff is directly affected by the
legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there
another reasonable and effective way to bring the issue before the court?

6. Public-interest standing is also available in non-constitutional cases, as the Court found


in Finlay v. Canada (Minister of Finance).

In British administrative law, the applicant needs to have a sufficient interest in the matter to
which the application relates. This sufficient interest requirement has been construed liberally by
the courts. As Lord Diplock put it:

"[i]t would...be a grave lacuna in our system of public law if a pressure group...or even a single
public spirited taxpayer, were prevented by outdated technical rules of locus standi from
bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful
conduct stopped."

27
In United States law, the Supreme Court of the United States has stated, "In essence the
question of standing is whether the litigant is entitled to have the court decide the merits of the
dispute or of particular issues."
There are a number of requirements that a plaintiff must establish to have standing before a
federal court. Some are based on the case or controversy requirement of the judicial power
of Article Three of the United States Constitution, § 2, cl.1. As stated there, "The Judicial Power
shall extend to all Cases . . .[and] to Controversies . . ." The requirement that a plaintiff have
standing to sue is a limit on the role of the judiciary and the law of Article III standing is built on
the idea of separation of powers. Federal courts may exercise power only "in the last resort, and
as a necessity".
In 2011, in Bond v. United States, the U.S. Supreme Court held that a criminal defendant has
standing to challenge the federal statute he or she is charged with violating as being
unconstitutional under the Tenth Amendment.
There are three constitutional standing requirements:

Injury: The plaintiff must have suffered or imminently will suffer injury - an invasion of a
legally protected interest which is concrete and particularized. The injury must be actual or
imminent, distinct and palpable, not abstract. This injury could be economic as well as non-
economic.

Causation: There must be a causal connection between the injury and the conduct complained
of, so that the injury is fairly traceable to the challenged action of the defendant and not the result
of the independent action of some third party who is not before the court.

Redress ability: It must be likely, as opposed to merely speculative, that a favorable court
decision will redress the injury.

Concept and development of the rule of Locus Standi is clearly stated by a DB of the Hon. High
Court of Kerala in Dr. George Mampilly v. State of Kerala - 1984 KLT SN 17 (C.No.29)

“Law, it is said, is dynamic. Naturally, our perception of locus standi also has been undergoing
transformation. The traditional conception in regard to locus standi is that judicial redress is
available to a person who has suffered a legal injury by reason of violation of his legal right or.
legally protected interest by the impugned action of the State or a public authority or who is
likely to suffer a legal injury by such reason. Courts have, during recent years, evolved a number
of exceptions to this rule. Courts have now acknowledged that where there has been violation of
constitutional or legal rights of persons who, by reason of their socially or economically
disadvantaged position, are unable to approach the court for judicial redress, a member of the
public could move the court for enforcement of such rights of such persons. Members of the
public are enabled, in appropriate cases to come forward to protect the rights of person or
persons belonging to a determinate class who, by reason of poverty, helplessness or disability or
socially or economically disadvantaged position, are unable to approach the court for relief. This

28
principle has been extended to cases where no specific regal injury is caused to a person or to a
determinate class or group of persons by the act or omission of State or public authority and
injury is caused only to public interest. Where there is a public wrong of public injury by an act
or omission by the State or a public authority which is contrary to the Constitution or to any law,
any member of the public having sufficient interest can maintain an action to or redress such
public wrong or public, injury. Courts have begun to recognize that they exist not merely to
vindicate individual rights but also to vindicate public rights and therefore permit members of the
public to agitate such rights. Any member of the public having sufficient interest can maintain an
action for judicial redress of public injury arising from breach of public duty or violation of some
provision of the Constitution or the law and seek enforcement of such public duty and
observance of such constitutional or legal provision. Of course, it must be ensured that the
person who comes forward is acting bona fide and not for personal gain or private profit or out of
political motivation or other oblique consideration. Relied AIR 1982 SC 149; (1982) 3 SCC 235;
AIR 1983 1 SC 130.

Worth reading SC’s decision in K.Anbazhagan v. Superintendent of Police & ors decided on 18-
11-03 by J.S.N. Variava & H.K. Sema in TP (Crl) 77-78 of 2003.

Example: The Madras High Court reserved its order on the early release plea of Nalini, who is
serving a life sentence for her involvement in former prime minister Rajiv Gandhi's
assassination. Advocate General G. Masilamani told Court that the Government needed time to
file a detailed counter affidavit to explain its stand and that it opposed Janata Party leader
Subramanian Swamy's petition seeking to implead himself in the case opposing her release.
Judge S. Nagamuthu reserved his orders on the matter. Appearing for Nalini, her counsel S.
Doraiswamy also opposed Swamy's intervention in the matter saying he had no locus standi.

Judicial Activism
Judicial activism describes judicial rulings suspected of being based on personal or political
considerations rather than on existing law. It is sometimes used as an antonym of judicial
restraint. The definition of judicial activism, and which specific decisions are activist, is a
controversial political issue, particularly in the United States. The question of judicial activism is
closely related to constitutional interpretation, statutory construction, and separation of powers.

29
Arthur Schlesinger Jr. introduced the term "judicial activism" in a January 1947 Fortune
magazine article titled "The Supreme Court: 1947".

Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making


whereby judges allow their personal views about public policy, among other factors, to guide
their decisions.

Judicial activism is gaining prominence in the present days. In the form of Public Interest
Litigation (PIL), citizens are getting access to justice.

Judiciary has become the centre of controversy, in the recent past, on account of the sudden (Me
in the level of judicial intervention. The area of judicial intervention has been steadily expanding
through the device of public interest litigation.

The judiciary has shed its pro-status-quo approach and taken upon itself the duty to enforce the
basic rights of the poor and vulnerable sections of society, by progressive interpretation and
positive action.

The Supreme Court has developed new methods of dispensing justice to the masses through the
public interest litigation. Former Chief Justice PN. Bhagwat, under whose leadership public
interest litigation attained a new dimension comments that "the supreme court has developed
several new commitments.

It has carried forward participative justice. It has laid just standards of procedure. It has made
justice more accessible to citizens".

The term 'judicial activism' is intended to refer to, and cover, the action of the court in excess of,
and beyond the power of judicial review. From one angle it is said to be an act in excess of, or
without, jurisdiction. The Constitution does not confer any authority or jurisdiction for 'activism'
as such on the Court.

Judicial activism refers to the interference of the judiciary in the legislative and executive fields.
It mainly occurs due to the non-activity of the other organs of the government.

Judicial activism is a way through which relief is provided to the disadvantaged and aggrieved
citizens. Judicial activism is providing a base for policy making in competition with the
legislature and executive. Judicial activism is the rendering of decisions, which are in tune with
the temper and tempo of the times.

In short, judicial activism means that instead of judicial restraint, the Supreme Court and other
lower courts become activists and compel the authority to act and sometimes also direct the
government regarding policies and also matters of administration.

Judicial activism has arisen mainly due to the failure of the executive and legislatures to act. Sec-
ondly, it has arisen also due to the fact that there is a doubt that the legislature and executive

30
have failed to deliver the goods. Thirdly, it occurs because the entire system has been plagued by
ineffectiveness and inactiveness.

The violation of basic human rights has also led to judicial activism. Finally, due to the misuse
and abuse of some of the provisions of the Constitution, judicial activism has gained
significance.

Besides the above mentioned factors, there are some other situations that lead to judicial
activism. These are:

(i) When the legislature fails to discharge its responsibilities.


(ii) In case of a hung parliament where the government is very weak and instable.
(iii) When the governments fail to protect the basic rights of the citizens or provide an honest,
efficient and just system of law and administration,
(iv) When the party in power misuses the courts of law for ulterior motives as was done during
the Emergency period, and
(v) Finally, the court may on its own try to expand its jurisdiction and confer on themselves more
functions and powers.

Areas of Judicial Activism

During the past decade, many instances of judicial activism have gained prominence. The areas
in which judiciary has become active are health, child labour, political corruption, environment,
education, etc.

Through various cases relating to Bandhua Mukti Morcha, Bihar Under trials, Punjab Police,
Bombay Pavement Dwellers, Bihar Care Home cases, the judiciary has shown its firm
commitment to participatory justice, just standards of procedures, immediate access to justice,
and preventing arbitrary state action.

Public Interest Litigation: An Innovative Step towards Judicial Activism

Public interest litigation means a suit filed in a court of law for the protection of public interest
such as pollution, terrorism, road safety etc. Judicial activism in India acquired importance due
to public interest litigation. It is not defined in any statute or act.

It has been interpreted by judges to consider the intent of public at large. The court has to be
satisfied that the person who has resorted to PIL has sufficient interest in the matter.

In India, PIL initially was resorted to towards improving the lot of the disadvantaged sections of
the society who due to poverty and ignorance were not in a position to seek justice from the
courts. After the Constitution (Twenty Fifth Amendment Act, 1971), primacy was given to
Directive Principles of State Policy by making them enforceable. The courts to improve

31
administration by taking up PIL cases, for ensuring compliance constitutional provisions has also
increased.

PIL is filed for a variety of cases such as maintenance of ecological balance, making municipal
authorities comply with statutory obligations of provision of civic amenities, violation of
fundamental rights etc. It has provided an opportunity to citizens, social groups, consumer rights
activists etc., easier access to law and introduced a public interest perspective. Justices P.N.
Bhagwati and V.R. Krishna Ayer have played a key role in promoting this avenue of
approaching the apex court of the country, seeking legal remedies in areas where public interests
are at stake.

PIL has been considered a boon, as it is an inexpensive legal remedy due to nominal costs
involved in filing the litigation. But there are some problems also in the PIL cases.

There has been an increase in the number of frivolous cases being filed due to low court fees.
Genuine cases got receded to the background and privately motivated interests started gaining
predominance in PIL cases. In view of this, the Supreme Court has framed certain guidelines
governing the PIL.

Presently the court entertains only writ petitions filled by an aggrieved person or public spirited
individual or a social action group for enforcement of the constitutional or the legal rights of a
person in custody or of a class of persons who due to reasons of poverty, disability, socially or
economically disadvantaged position are finding it difficult to approach the court for redress.

PIL is an extraordinary remedy available at a cheaper cost. As Justice Bhagwati observed in the
case of Asiad workers case, 'now for the first time the portals of the court are being thrown open
to the poor and the downtrodden. The courts must shed their character as upholders of the
established order and the status quo. The time has come now when the courts must become the
courts for the poor and the struggling masses of this country'.

During the framing of the Indian Constitution in the 1940’s, the engrafting of Directive
Principles of State Policy was inspired from the Irish example. The common experience of
colonial rule in both countries also makes it viable for us to draw comparative insights in the
matter of analysing legislations, the judicial process and of course precedents themselves. The
phrase ‘judicial activism’ carries more than one connotation. The common law tradition
conceives of courtroom litigation as an adversarial process where the onus is on the pleaders to
shape the overall course of the proceedings through their submissions. In this conception, the
role of the judge is cast in a passive mould and the objective is to dispassionately evaluate the
arguments made by both sides. However the actual experience of a courtroom clearly bears
witness to the tendency on part of some judges to pose incisive questions before the practitioners.
This may have the consequence of proceedings being judicially-directed to a certain degree.
While this literal understanding of activism from the bench may have its supporters as well as

32
detractors, the focus of my talk will be on another understanding of ‘judicial activism’. In the
Indian context, there has been a raging debate on the proper scope and limits of the judicial role
– especially of that played by the higher judiciary which consists of the Supreme Court of India
at the Centre and the High Courts in the various States that form the Union of India. The terms of
that debate have been broadly framed with respect to the considerations of ensuring an effective
‘separation of powers’ between the executive, legislature and the judiciary as well as concerns
about the efficacy and legitimacy of judicial interventions in the long-run. In the course of this
talk, I will attempt to present some background information as well as the main themes of these
debates.

One basic and fundamental question that confronts every democracy, run by a rule of law is,
what is the role or function of a judge. Is it the function of a judge merely to declare law as it
exists-or to make law? And this question is very important, for on it depends the scope of judicial
activism. The anglo-saxon tradition persists in the assertion that a judge does not make law; he
merely interprets. Law is existing and eminent; the judge merely finds it. He merely reflects what
the legislature has said. This is the photographic theory of the judicial function.

Ithas long held the field in England and its most vigorous exposition is to be foundin a speech
made by Lord Chancellor Jowett at the Australian Law Convention where he said, "The function
of a judge is merely to find the law as it is. The lawmaking function does not belong to him, it
belongs to the legislature."Milestones of Public Interest Litigation in India One of the earliest
cases of public interest litigation was reported as Hussainara Khatoon (I) v. State of Bihar.24
This case was concerned with a series of articles published in a prominent newspaper - the Indian
Express which exposed the plight of undertrial prisoners in the state of Bihar. A writ petition was
filed by an advocate drawing the Court’s attention to the deplorable plight of these prisoners.
Many of them had been in jail for longer periods than the maximum permissible sentences for
the offences they had been charged with. The Supreme Court accepted the locus standi of the
advocate to maintain the writ petition. Thereafter, a series of cases followed in which the Court
gave directions through which the ‘right to speedy trial’ was deemed to be an integral and an
essential part of the protection of life and personal liberty.

Soon thereafter, two noted professors of law filed writ petitions in the Supreme Court
highlighting various abuses of the law, which, they asserted, were a violation of Article 21 of the
Constitution. These included inhuman conditions prevailing in protective homes, long pendency
of trials in court, trafficking of women, importation of children for homosexual purposes, and the
non-payment of wages to bonded labourers among others. The Supreme Court accepted their
locus standi to represent the suffering masses and passed guidelines and orders that greatly
ameliorated the conditions of these people.

In another matter, a journalist, Ms. Sheela Barse, took up the plight of women prisoners who
were confined in the police jails in the city of Bombay. She asserted that they were victims of
custodial violence. The Court took cognizance of the matter and directions were issued to the

33
Director of College of Social Work, Bombay. He was ordered to visit the Bombay Central Jail
and conduct interviews of various women prisoners in order to ascertain whether they had been
subjected to torture or ill-treatment. He was asked to submit a report to the Court in this regard.

Based on his findings, the Court issued directions such as the detention of female prisoners only
in designated female lock-ups guarded by female constables and that accused females could be
interrogated only in the presence of a female police official.

Public interest litigation acquired a new dimension – namely that of ‘epistolary jurisdiction’ with
the decision in the case of Sunil Batra v. Delhi Administration, It was initiated by a letter that
was written by a prisoner lodged in jail to a Judge of the Supreme Court. The prisoner
complained of a brutal assault committed by a Head Warder on another prisoner. The Court
treated that letter as a writ petition, and, while issuing various directions, opined that:

“…technicalities and legal niceties are no impediment to the court entertaining even an informal
communication as a proceeding for habeas corpus if the basic facts are found”.

In Municipal Council, Ratlam v. Vardichand, the Court recognized the locus standi of a group of
citizens who sought directions against the local Municipal Council for removal of open drains
that caused stench as well as diseases. The Court, recognizing the right of the group of citizens,
asserted that if the: "…centre of gravity of justice is to shift as indeed the Preamble to the
Constitution mandates, from the traditional individualism of locus standi to the community
orientation of public interest litigation, the court must consider the issues as there is need to
focus on the ordinary men."

In Parmanand Katara v. Union of India, the Supreme Court accepted an application by an


advocate that highlighted a news item titled "Law Helps the Injured to Die" published in a
national daily, The Hindustan Times. The petitioner brought to light the difficulties faced by
persons injured in road and other accidents in availing urgent and life-saving medical treatment,
since many hospitals and doctors refused to treat them unless certain procedural formalities were
completed in these medico-legal cases. The Supreme Court directed medical establishments to
provide instant medical aid to such injured people, notwithstanding the formalities to be followed
under the procedural criminal law.

In many other instances, the Supreme Court has risen to the changing needs of society and taken
proactive steps to address these needs. It was therefore the extensive liberalization of the rule of
locus standi which gave birth to a flexible public interest litigation system. A powerful thrust to
public interest litigation was given by a 7-judge bench in the case of S.P. Gupta v. Union of
India.30 The judgment recognized the locus standi of bar associations to file writs by way of
public interest litigation. In this particular case, it was accepted that they had a legitimate interest
in questioning the executive’s policy of arbitrarily transferring High Court judges, which
threatened the independence of the judiciary. Explaining the liberalization of the concept of locus
standi, the court opined:

34
“It must now be regarded as well-settled law where a person who has suffered a legal wrong or a
legal injury or whose legal right or legally protected interest is violated, is unable to approach the
court on account of some disability or it is not practicable for him to move the court for some
other sufficient reasons, such as his socially or economically disadvantaged position, some other
person can invoke the assistance of the court for the purpose of providing judicial redress to the
person wronged or injured, so that the legal wrong or injury caused to such person does not go
unredressed and justice is done to him.”

The unique model of public interest litigation that has evolved in India not only looks at issues
like consumer protection, gender justice, prevention of environmental pollution and ecological
destruction, it is also directed towards finding social and political space for the disadvantaged
and other vulnerable groups in society. The Courts have given decisions in cases pertaining to
different kinds of entitlements and protections such as the availability of food, access to clean
air, safe working conditions, political representation, affirmative action, anti-discrimination
measures and the regulation of prison conditions among others. For instance, in People’s Union
for Democratic Rights v. Union of India, a petition was brought against governmental agencies
which questioned the employment of underage labourers and the payment of wages below the
prescribed statutory minimum wage-levels to those involved in the construction of facilities for
the then upcoming Asian Games in New Delhi. The Court took serious exception to these
practices and ruled that they violated constitutional guarantees. The employment of children in
construction-related jobs clearly fell foul of the constitutional prohibition on child labour and the
non-payment of minimum wages was equated with the extraction of forced labour.

Similarly, in Bandhua Mukti Morcha v. Union of India, the Supreme Court’s attention was
drawn to the widespread incidence of the age-old practice of bonded labour which persists
despite the constitutional prohibition. Among other interventions, one can refer to the Shriram
Food & Fertilizer case where the Court issued directions to employers to check the production of
hazardous chemicals and gases that endangered the life and health of workmen. It is also through
the vehicle of PIL, that the Indian Courts have come to adopt the strategy of awarding monetary
compensation for constitutional wrongs such as unlawful detention, custodial torture and extra-
judicial killings by state agencies. In the realm of environmental protection, many of the leading
decisions have been given in actions brought by renowned environmentalist M.C. Mehta. He has
been a tireless campaigner in this area and his petitions have resulted in orders placing strict
liability for the leak of Oleum gas from a factory in New Delhi, directions to check pollution in
and around the Ganges river, the relocation of hazardous industries from the municipal limits of
Delhi, directions to state agencies to check pollution in the vicinity of the Taj Mahal and several
afforestation measures. A prominent decision was made in a petition that raised the problem of
extensive vehicular air pollution in Delhi. The Court was faced with considerable statistical
evidence of increasing levels of hazardous emissions on account of the use of diesel as a fuel by
commercial vehicles. The Supreme Court decided to make a decisive intervention in this matter
and ordered government-run buses to shift to the use of Compressed Natural Gas (CNG), an

35
environment-friendly fuel. This was followed some time later by another order that required
privately-run ‘autorickshaws’ (three-wheeler vehicles which meet local transportational needs) to
shift to the use of CNG.

At the time, this decision was criticized as an unwarranted intrusion into the functions of the
pollution control authorities, but it has now come to be widely acknowledged that it is only
because of this judicial intervention that air pollution in Delhi has been checked to a substantial
extent. Another crucial intervention was made in Council for Environment Legal Action v.
Union of India, wherein a registered NGO had sought directions from the Supreme Court in
order to tackle ecological degradation in coastal areas. In recent years, the Supreme Court has
taken on the mantle of monitoring forest conservation measures all over India, and a special
‘Green bench’ has been constituted to give directions to the concerned governmental agencies.
At present, I am part of this Green bench and can vouch for the need to maintain judicial
supervision in order to protect our ecological resources from rampant encroachments and
administrative apathy.

An important step in the area of gender justice was the decision in Vishaka v. State of Rajasthan.
The petition in that case originated from the gang-rape of a grassroots social worker. In that
opinion, the Court invoked the text of the Convention for the Elimination of all forms of
Discrimination Against Women (CEDAW) and framed guidelines for establishing redressal
mechanisms to tackle sexual harassment of women at workplaces. Though the decision has come
under considerable criticism for encroaching into the domain of the legislature, the fact remains
that till date the legislature has not enacted any law on the point. It must be remembered that
meaningful social change, like any sustained transformation, demands a long-term engagement.
Even though a particular petition may fail to secure relief in a wholesome manner or be slow in
its implementation, litigation is nevertheless an important step towards systemic reforms. A
recent example of this approach was the decision in People’s Union for Civil Liberties v. Union
of India, where the Court sought to ensure compliance with the policy of supplying mid-day
meals in government-run primary schools. The mid-day meal scheme had been launched with
much fanfare a few years ago with the multiple objectives of encouraging the enrolment of
children from low-income backgrounds in schools and also ensuring that they received adequate
nutrition. However, there had been widespread reports of problems in the implementation of this
scheme such as the pilferage of food grains. As a response to the same, the Supreme Court issued
orders to the concerned governmental authorities in all States and Union Territories, while giving
elaborate directions about the proper publicity and implementation of the said scheme.

The principles of judicial accountability

Ways in which judges are restrained and which together, ensure that judges are accountable for
their actions.

36
We have already discussed the peculiar constitutional position of the judiciary and the
conventions that protect their independence. In this section we look at the numerous ways in
which judges are restrained and which together, ensure that judges are accountable for their
actions.

We must first ask what it means to say someone is accountable for their actions. In many areas
accountability means that, just like football managers, an individual who fails to perform
satisfactorily in their job should be sacked or should resign. Some people have called this form
of accountability, ‘sacrificial accountability’, meaning that the only solution is for the individual
concerned to no longer continue in their role.

In the case of the judiciary, however, safeguards are needed to ensure that Judges are free to
make their judicial decisions without fear or favour and thus to preserve their independence. For
example, if a politician or senior judge felt able to sack a particular judge, or remove him or her
from a case, simply because they did not like the decision reached, the principle of judicial
independence would be greatly undermined and there could be no possibility of a fair trial. It
could also lead judges to make decisions they felt might be more acceptable to whoever had the
right to decide whether they should continue serving as judges or be promoted. If, for instance,
the permanent or continued appointment of a part-time temporary judge was in some way
determined by one of the parties to the case, there would be a real risk that independent and
impartial judicial decision-making could be subverted by self-interest. Prior to 2000 this was the
position in Scotland in respect of temporary criminal court judges, or sheriffs, who were
appointed for a fixed period of twelve months and the renewal of their appointment was
effectively at the discretion of the Lord Advocate, a government minister who is the head of the
prosecuting authority In other words there might well be a risk that such judges could improperly
favour the prosecuting authority with an eye to securing a permanent appointment. The Scottish
Courts recognised this in 1999 in Starrs v Ruxton [2000] SCCR 136

This risk is perhaps best demonstrated – albeit as an extreme example – in dictatorships where
judges are often appointed specifically because of their loyalty to the regime, and will almost
always make decisions in favour of it, regardless of the interests of the individual, the facts and
the law. The independence and transparency of the appointments process in England and Wales
rebuts any suggestion that such factors could be relevant to the appointment of judicial office
holders in this jurisdiction.

We have stated that judges who commit a criminal offence may be subject to an investigation by
the Office for Judicial Complaints and may be subject to a disciplinary sanction in accordance
with the relevant statutory provisions. Apart from this, however, it is clear that judges are not
subject to this ‘sacrificial accountability’. However, they are subject to a different form of
accountability, which has been referred to as ‘explanatory accountability’. Put simply this form
of accountability means that individuals can be asked to give an account as to why they have
behaved in a particular way. The judiciary is subject to this form of accountability in a multitude
of ways. Taken together, these ensure a considerable degree of accountability.

Put simply, judges must be accountable to the public for their constitutional role of applying the
law fairly and impartially. Judicial accountability, however, is a concept that is frequently

37
misunderstood at best and abused at worst. It has become a rallying cry for those who want in
reality to dictate substantive judicial outcomes.

The notion of accountability is superficially attractive: judges who reach outcomes that part ways
with the will of the majority—often mislabeled “activist” judges—should be held “accountable.”
This simplistic understanding of accountability—judicial accountability for the majority’s
desired substantive outcomes—ignores the role of the judiciary and indeed the very structure of
our democratic governments, State and federal. Worse, this perversion of the concept of judicial
accountability threatens to undermine the safeguards of democracy and liberty that were so
brilliantly conceived by those who first designed our governmental institutions and drafted our
Constitution. In short, “populist, substance-based accountability for judges is precisely what the
Founders feared.”

The Framers placed at the core of the judiciary’s design the concept of judicial independence as
a means to guarantee the Rule of Law. Judicial independence is the vital mechanism that
empowers judges to make decisions that may be unpopular but nonetheless correct. In so doing,
the judiciary vindicates the principle that no person or group, however powerful, is above the
law. And it gives life to the promise that the Rule of Law safeguards the minority from the
tyranny of the majority. Alexander Hamilton, one of the Framers of the United States
Constitution, wrote in The Federalist No. 78 to defend the role of the judiciary in the
constitutional structure. He emphasized that “‘there is no liberty, if the power of judging be not
separated from the legislative and executive powers.’ . . . [L]iberty can have nothing to fear from
the judiciary alone, but would have everything to fear from its union with either of the other
departments.” Only with judicial independence can the reality and the appearance of zealous
adherence to the Rule of Law be guaranteed to the people.

As former U.S. President Woodrow Wilson wrote, government “keeps its promises, or does not
keep them, in its courts. For the individual, therefore, . . . the struggle for constitutional
government is a struggle for good laws, indeed, but also for intelligent, independent, and
impartial courts.”

This principle undergirds the place of the judiciary in the United States. The Founders of the
United States recognized that it is essential to the effective functioning of the judiciary that it not
be subject to domination by other parts of the government. To accomplish this goal, the United
States Constitution established an independent federal judiciary by separating the law-making
function of the legislative branch from the law-applying role of the judicial branch. This
separation of the legislative and judicial powers has proven essential in maintaining the Rule of
Law. When the roles of lawmaker and judge are played by different state actors, the danger of
government arbitrariness is greatly diminished. When the power to make laws is separated from
the power to interpret and apply them, the very foundation of the Rule of Law—that
controversies are adjudicated on the basis of previously established rules—is strengthened.

38
An independent judiciary requires both that individual judges are independent in the exercise of
their powers, and that the judiciary as a whole is independent, its sphere of authority protected
from wrongful interference by the other two branches of government. Judicial independence has
both individual and institutional aspects. As for the independence of individual judges, there are
at least two avenues for securing that independence: First, judges must be protected from the
threat of reprisals, so that fear does not direct their decision-making. Second, the method by
which judges are selected, and the ethical principles imposed upon them, must be constructed so
as to minimize the risk of corruption and outside influence. The first endeavor is to protect
judicial independence from outside threats. The second is to ensure that judicial authority is not
abused, and it is the core concern of the enterprise of judicial accountability.

True judicial accountability furthers another necessary characteristic of a functioning judiciary:


judicial integrity. An independent and honorable judiciary is indispensable to the Rule of Law.
Alexander Hamilton captured this necessity well when he wrote that a “steady, upright, and
impartial administration of the laws” is essential because “no man can be sure that he may not be
tomorrow the victim of a spirit of injustice, by which he may be the gainer today.” If judges are
to be the independent guardians of Rule of Law values, they must be incorruptible.

Judges are entrusted with ultimate decisions over the life, freedoms, duties, rights, and property
of citizens. But judges will never win the respect and trust of the citizens if they are subject to
corrupt influences. Whenever a judge makes a decision for personal gain, or to curry favor, or to
avoid censure, that act denigrates the Rule of Law. A third value may be advanced through
judicial accountability properly construed: judicial competence. A fundamental value of the Rule
of Law is that judicial decisions are not made arbitrarily, but through a process of reasoned
decision making. The Rule of Law therefore requires that “official decisions be justified in law,
and therefore be reasoned and nonarbitrary with respect to general legal standards.”

“Power corrupts, and absolute power corrupts absolutely.” – John Emerich Edward
Dalberg Acton.

“Corruption is like a hidden tiger in the bushes, waiting to pounce on the deer (rule of law), catch
it by the neck and finally strangulate it to death. Unless the tiger is caged it will continue to
wreak havoc.”

Indian Judiciary system is the most powerful judiciary in the world after USA. Judiciary in India
being a democratic country is vested with the highest power by the people and is considered as
strongest pillar of the democracy. Judiciary in India has been given Supreme powers by the
Legislature which has lead to the non-accountability of the judiciary to anyone. Judiciary in India
enjoys judicial independence but this independence sometimes results in misuse of the powers
and privileges by the Judges. Thus, the concept of Judicial Accountability is nowadays is in
question. All over the world various conferences and discussions are going on as to whether
judiciary can be held accountable for actions. The author of this paper would deal with the need

39
for judicial accountability and meaning of ethics in context with the judges. The author would
like to discuss the Judicial Standard and Accountability Bill, 2010 in detail and would like to
suggest some measures along with conclusion which can be used to improve standard of judicial
accountability in India. The author would also deal with the fact as to how corruption is
hampering the judicial system in India. The author would throw some light on the status of
judicial accountability in other nations of the world like USA, Australia etc.

Judicial Accountability: Why there is a need?

The word ‘accountable’ as defined in the Oxford Dictionary means ‘responsible for your own
decisions or actions and expected to explain them when you are asked’ . Accountability is the
sine qua non of democracy. Associated with the higher cause of truth and justice, judiciary and
the judges have been accorded a distinct position. What the Constitutional provisions provide for
is that “there should be an impartial and independent judicial body to adjudicate upon the matters
and to act as the interpreter and guardian of the Constitution.” It is also a well settled principle of
modern day governance that an authority deriving its existence from same source cannot claim to
be absolute and unaccountable. It must be accountable either to the source of its origin, to the
institution and more importantly to the people. All wings of Government belong to the people,
when the legislature and the executive both are accountable, the judiciary cannot remain
unaccountable and absolute. No person, howsoever high is above the law similarly, no institution
howsoever sanctified can claim to be unaccountable. Ultimately, every institution is accountable
to the people in every democratic polity like ours. Several countries in their constitutions have
already provided for ensuring accountability of judiciary. This to prevent concentration of power
in the hands of a single organ of the state especially in countries where judicial activism
interferes with and invades into the domain of other organs. But at the same time Judicial
independence is a pre- requisite for every judge whose oath of office requires him to act without
fear or favour, affection of ill- will and to uphold the constitution and laws of the country. Thus,
here arises a tension between Judicial Independence and Judicial Accountability.

Ethics of Judges

Hon’ble Mr. Justice S.H. Kapadia, Chief Justice of India said:

“When we talk of ethics, the judges normally comment upon ethics among politicians, students
and professors and others. But I would say that for a judge too, ethics, not only constitutional
morality but even ethical morality, should be the base.

40
The basic code of ethics is the principle that no man can be judge in his own cause; it means that
a judge should not adjudicate those cases in which he has any kind of interest. A judge should
follow the motto of “Fiat justitia, ruat caelum” that is “let justice be done though the heavens
fall”. A judge should guard against intimidation of powerful outside interests, which often
threatened the impartial administration of justice and keep himself free from application of crude
pressure, which may result in manipulation of the law for political purposes at the behest of the
government in power or anybody else.

A judge is the judge of all people. He does not belong to any person or any section of society. A
judge must follow the principle of equity in treating the parties to the dispute. The Supreme
Court said in the celebrated case “No man’s right should be affected without an opportunity to
ventilate his views” . The Supreme Court in Ram Pratap Sharma v Daya Nand issued a note of
caution to the effect that it is proper for a Judge not to accept any invitation and hospitality of
any business or commercial organization or of any political party or of any club or organization
run or sectarian, communal or parochial lines . Lord Widgery, Lord Chief Justice of England
since 1971 to 1980, said that “the best judge is the man who should not court publicity and
should work in such a way that they don’t catch the eyes of the newsmen”. Lord Hailsham said
that the “best judges are those who do not find their names in the The Daily Mail and still, who
abhor it”

Constitutional provisions for making the Judiciary Accountable

Definition of “misbehaviour”: According to Black’s Law Dictionary: Ill-conduct; improper or


unlawful behavior.

The fact that the powers of judges are very wide is in itself an indication that the powers may not
be allowed to be absolute. Among the constitutional limitations on the judges, the most important
one is the provision for ‘removal’ of judges of the High Courts /Supreme Court by address of the
Houses of Parliament to the President on the ground of ‘proved misbehavior or incapacity’. This
is provided in Constitution of India, art. 124 (2) and (4) in respect of judges of the Supreme
Court and in view of art. 217, that procedure is attracted to the ‘removal’ of judges of the High
Court also.

In pursuance of the provisions of Article 124(5) of the Constitution the Judges (Inquiry) Act,
1968 was enacted to regulate the procedure for investigation and proof of the “misbehavior” or
incapacity of a Judge of the Supreme Court or of a High Court and for the presentation of an
address by Parliament to the President and for matters connected therewith.

Judicial Standards and Accountability Bill, 2010

41
The Judicial Standards and Accountability Bill, 2010 replaces the Judges (Inquiry) Act, 1968. It
seeks to create enforceable standards for the conduct of judges of High Courts and the Supreme
Court, change the existing mechanism for investigation into allegations of “misbehaviour” or
incapacity of judges of High Courts and the Supreme Court, change the process of removal of
judges, enable minor disciplinary measures to be taken against judges, and require the
declaration of assets of judges.

Questions raised against the Bill…..

• Whether the balance between independence and accountability is maintained by the proposed
mechanism in the Bill?

• It is not clear whether the power of the Oversight Committee to impose minor measures is
constitutionally valid?

• The Bill does not mention whether a judge has the right to appeal to the Supreme Court against
an order of removal issued by the President after Parliament finds him guilty of “misbehavior”?

The issues of Judicial Standards must be seen in the context of Art 124(4) of the Constitution
which provides for the process of impeachment of a judge on the grounds of proved “mis-
behaviour” or incapacity.” Art 124(5) empowers Parliament only to make laws to regulate the
procedure for presentation of address of impeachment, and for the investigation and proof for the
“mis-behaviour” or incapacity of a judge. Article 124(5) does not empower Parliament to create
any other forum for recommending impeachment proceedings, or allow complaints to be made
by any person, or to make a judge liable for minor penalties. What can be done only by a
hundred or more members of the Lok Sabha or fifty or more members of the Rajya Sabha (i.e.
initiation of impeachment proceedings) can now theoretically be done by only one person.

Loopholes in the Bill

• The Bill seeks to provide a straight definition of “mis-behaviour” in Clause 2(j), but by laying
down a strict definition, the concept loses its elasticity and becomes both under-inclusive and
over-inclusive.

42
• The Bill also provides a list of standards of judicial conduct to which all judges are expected to
adhere. The very idea of statutorily providing for judicial standards, irrespective of their content,
is violative of judicial independence.

• Under the Bill, “any” person may file a complaint in a prescribed format. This is likely to lead
to a multiplicity of complaints and even though the Bill proscribes false and vexatious
complaints under Clause 53, this is unlikely to prove much of a deterrent, and since each of them
will have to be checked by the Scrutiny Panel, it is also likely to result in a huge waste of time.

• The Attorney-General has the responsibility of regularly appearing on behalf of the government
before the court. The possibility of his appearing before a judge against whom a complaint has
been filed cannot be ruled out. In such a circumstance, there is clearly a conflict of interest since
the Attorney-General will be a member of the Oversight Committee to look into the complaints
made against the former.

• The Scrutiny Panel is to consist of three members, two of whom will be judges sitting in the
same court as the judge against whom the complaint is made. Since these judges would be
colleagues sitting in the same court, it is likely that this will, either way, influence their conduct.

• The idea of “minor” punishments is unworkable and has the potential to seriously undermine
judicial status.

• The Bill completely excludes the operation of the RTI. This establishes an atmosphere of total
secrecy more regressive than the present system, and for which, there does not appear to be any
rational reason to make a change.

• The Bill makes no mention of whether a judge who has been removed has a right to appeal to
the Supreme Court. The Standing Committee had stated that there should not be any provision
for appeal as the finality of a Presidential order should not be challenged.

Thus, it is totally impermissible for the legislature to strike upon the independence and
fearlessness of the judiciary. A judge of a superior court cannot be treated as an employee of the
government. The present Bill is incapable of salvage and must be rejected in totality. In a system
where half the litigants must necessarily lose their cases, and where most of the complaints
against judges are frivolous and made by disgruntled litigants, this bill, if implemented, would
mark the beginning of the end of the judiciary.

43
Judicial Accountability in Other Nations of the World

South Africa:

South Africa is currently in the process of adopting new laws on judicial ethics and discipline,
financial disclosure, judicial codes of conduct and training for judges. Issues of judicial
accountability have been on the legislative agenda since the late 1990’s the subject of wide
public debate. During the current parliamentary term (January to May 2007) Parliament’s
Portfolio Committee on Justice and Constitutional Development will be deliberating the latest
versions of two judiciary bills- the Judicial Services Commission Amendment Bill B-2007
(dealing with judicial discipline and ethics) and the South Africa Judicial Education Institute Bill
B 4-2007 (dealing with judicial education).

Australia:

The federal judiciary enjoys constitutional protection in terms of appointment and removal of
judges by virtue of section 72 of the Federal Court of Australia Act Removal can only occur
through proved misbehavior or incapacity. Removal must be effected by the Governor General
on an address from both houses of parliament in the same sitting on either of the two grounds
listed above. A more formal mechanism for considering complaints was established to address
the Judicial Commission of New South Wales. The New South Wales statute requires the
Commission to dismiss complaints in a number of specified circumstances: including where
there is a right of appeal, where the complaint is frivolous or trivial, or where further
consideration is unnecessary or unjustifiable

Canada:

In Canada the independence of the federally appointed judiciary is guaranteed by the Canadian
Constitution (namely sections 96 to 100 of the Constitution Act, 1867) which provides for the
appointment, security of tenure and financial security of superior court judges. This provision
aims to ensure judicial independence by making it extremely difficult to remove judges from
office for political or other reasons. The 1971 amendments to the Judges Act created the
Canadian Judicial Council and gave it statutory authority to investigate complaints against
federally appointed judges. Judicial Independence in also guaranteed by the Canadian Charter of
Rights and Freedoms, Schedule B to the Constitution Act, 1982. Under section 63(2) of the

44
Judges Act, any member of the public (including a provincial attorney general or the federal
Minister of Justice) may make a complaint about a federally appointed judge by writing to the
Canadian Judicial Council.

United States:

Article III of the US Constitution establishes the judiciary as an independent third branch of
government. Article III gives the judiciary the power to hear and adjudicate all cases arising out
of the constitution and laws of the USA with impartiality. Article III also states that federal
judges can only be removed through impeachment by the House of Representatives and
conviction by the US Senate for “treason, bribery or other high crimes or misdemeanours”. Short
of removal, federal judges can be disciplined for violations of the Code of Conduct for United
States Judges- a set of ethical principles and guidelines adopted by the Judicial Conference of the
United States.

Most states have adopted the Model Code of Judicial Conduct compiled by the American Bar
Association in 1990, which governs judges’ conduct during judicial proceedings, as well as
speech, business activities, civic, charitable, political and other associations. The detail of the
actual complaints procedure at federal district level is set out in the Judicial Councils Reform and
Judicial Conduct and Disability Act.

To bring a complaint, individuals submit written statements to the clerk for the chief judge of the
relevant court. A chief judge can also initiate a proceeding based on informal complaints
received. Complaints about the behavior of state court judges can be filed as a grievance with the
state’s judicial conduct organization referred to above.

Corruption-Hampering the Rule of Law in India

Democracy means rule of law and it is the primary duty of the government to ensure that the rule
of law is obeyed. Wherever rule of law is broken, corruption and injustice will flourish. Every
unpunished crime will give birth to a thousand new crimes, creating conditions of anarchy.
Corruption corrodes the values people cherish and projects the State as predatory and unjust.
Corruption tends to undercut the legitimacy of the State and make a mockery of the rule of law..
Corruption, which springs from the basic human tendency of greed, distorts the whole process of
law.

45
The basic defect in the manner in which the candidates are elected to the legislature has its
impact on the law making. Corruption distorts not only the composition of the legislatures but
also the process of law making and implementation.

Due to corruption, the very constitutional institutions, which are supposed to protect and uphold
liberty and rule of law, turn against them. Therefore to the majority of Indians, the only way left
is resorting to the local mafia, who are more than willing to dispense rough and ready justice for
a price, leading to criminalisation of Indian society. Rule of law and access to justice are the very
essence of a modern democracy and without them we cannot call ourselves a great democracy in
any sense.

A report by Transparency International (TI) called the “Global Corruption Report 2007″. The
report, based on a 2005 countrywide survey of “public perceptions and experiences of corruption
in the lower judiciary,” conducted by the Centre for Media Studies, finds that a very high 77
percent of respondents believe the Indian judiciary is corrupt. It says that ‘’bribes seem to be
solicited as the price of getting things done”. The estimated amount paid in bribes in a 12-month
period it found was around 580 million dollars. ‘’Money was paid to the officials in the
following proportions: 61 percent to lawyers; 29 percent to court officials; 5 percent to
middlemen.

So, just as predator kills the pray, Corruption kills Rule of Law therefore wherever corruption
exists rule of law has no place there.

Instances

Justice Sinha is the only Judge impeached. Our Fore-Fathers represented by Constituent
Assembly of India framers of Constitution of India then in 1949 impeached Mr. Justice Sinha
finding him “guilty of improper exercise of judicial functions, the cumulative effect of which
was to lower the dignity of his office and undermine the confidence of the public in the
administration of justice…”

Justice V. Ramaswami, May 11, 1993 will be remembered as a black day for Parliament and for
the judiciary in this country. The impeachment motion against Justice V. Ramaswami of the
Supreme Court was established. Thus, despite the motion for removal being passed unanimously
by the members who voted, it failed. The result, therefore, is that despite a high-power inquiry
committee of three eminent judges having come to the conclusion that Ramaswami was guilty of
several acts of gross mis-behavior which warranted his removal, the judge is still entitled to
discharge judicial functions from the highest court of the land. It is another matter that after the
impeachment motion failed, Ramaswami was persuaded to resign by the Congress (I) which

46
belatedly behavior that it would have to pay a heavy price for being seen to have supported a
corrupt judge. The failure of the motion, especially after the tortuous course it went through,
raises several grave issues for the future of the administration of justice in this country and
indeed for probity in public life in general.

Sex for Acquittal


In November 2002, Sunita Malviya, a Jodhpur-based doctor, alleged that a deputy registrar of the
Rajasthan High Court had sought sexual favours for himself and for Justice Arun Madan to “fix”
a case in her favour. A committee set up by former CJI G.B. Pattanaik found prima facie
evidence against Madan, who does not attend court anymore. Judge Resigned.

Conclusion with Suggestion for Improving Judiciary System

The legal system in India and the judiciary has reached a stage now where the public openly
criticise the judiciary and the News Channels debate even the judgments delivered by the
Constitutional Courts. It is an open fact in author’s opinion that the public opinion at the legal
system in India and as to how the judiciary is not able to deliver results meeting the expectations
of the public, has taken away the caution to be exercised while referring to the judiciary or the
legal system. The respect can never forcibly be received and the respect should come voluntarily.
The functioning of judiciary or the legal system has a direct impact on the society and the rights
of the people. If a criminal could manage a magistrate or court dealing with his case, then, who
will protect the society from evil forces? We cannot expect the government to be very clean and
responsive given the complications in the Indian political system. As such, the Judiciary or the
legal system has a big role to play in protecting the rights of the people, ensuring orderliness in
the system and even making a judgment on the executive actions when those are not in
conformity with the public interest. There are critics on the allegations of corruption and lack of
transparency in the Judiciary. In my opinion, many people talk about the judiciary and the
judicial reforms only because people have the hope that Judiciary can protect their rights and
ensure ‘right to life’ as guaranteed under Article 21 of Constitution of India and further
expanded.

Suggestion

The problem with judicial reforms in India is that we lack clarity as to who is ultimately
responsible to the citizens. But, with experience, the collegiums system has invited so much
criticism and the executive do not bother to address the issue showing judicial independence and
they will say that they can do nothing given the legal position in this regard. Likewise, the

47
problem is where to start and whose responsibility it is to address the issue of delay in disposal of
cases before various courts in this country. It is for sure that we can certainly curtail the delay in
justice delivery and can ensure speedy justice to the citizens. For which what we need is
commitment from Government and the concerned ministry. We have so many eminent judges
with vast experience who also command great respect among the professionals and people. We
need to utilize their services and get their guidance as to how to cure the system and make the
speedy disposal of cases a reality. Judicial reforms will transform this country to a great extent
and we can see lot of change in the things in the society if we are able to bring the judicial
reforms. There will not be any illegality in the society or at least we can see substantial reduction
in illegal activities in the society if there is an effective judicial system in place. This is the
impact of effective judicial system in the Country.

Alleged corruption in Judiciary and particularly lower judiciary is a matter of grave concern. We
need to address the issue of corruption in Higher Judiciary first and we need to concentrate on
the issue of judicial appointments. The judge’s accountability is a serious issue as options are
less to deal with the judge who is not accountable or who is corrupt. So, the responsibility of
appointing efficient and clean judges is to be given to executive and they should not be allowed
to take a defence that they are not concerned with the appointments and as such they can do
nothing when it comes to corruption in judiciary. Our country is really facing a serious problem
with the allegations of corruption in judiciary and the public are slowly losing their faith in
judiciary or finding the ways to get relief by adopting unethical means. When we make the
system very transparent, then, there is a chance of reducing the corruption to a great extent and
such the executive should concentrate as to how to make the entire judicial system in the country
transparent.

All that needed is:

1. Speedy justice not amounting to justice buried.

2. Simplistic procedures where even a common man with basic knowledge can directly approach
the court.

3. Transparency in the system and reduction of corruption to a great extent.

4. Appointment of efficient and clean professionals as judges.

5. Ensuring the required standards in the legal professional or the person concerned.

The institution of judiciary in a democratic setup is perhaps one of the most important organs as
it is entrusted with the great responsibility of administering justice, one of the core needs of the

48
citizenry. As the custodian of rights of the citizens of a country, the judiciary is bestowed with
the task of realizing the constitutional values to its fullest extent, in furtherance of the vision of
the Constitution Makers. The Preamble to the Constitution enshrines the ideals of securing
social, economic and political justice to all its citizens. Justice, failed to be meted out in a fair
manner, jeopardizes the interests of the civil society, vitiating the principle of rule of law. An
independent judiciary can be stated to be the cornerstone of a democracy. In Union of India v.
Sankalchand Himmatlal Seth, Untwalia J. called the judiciary as a “watching tower above all the
big structures of the other limbs of the state from which it keeps a watch like a sentinel on the
functions of the other limbs…”.

Therefore, the presence of a strong, independent and efficient judiciary, both in letter and spirit,
is an absolute necessity to achieve the laudatory goals imbibed in the Constitution, for it is an
established principle of natural justice that justice is not only to be done but should be manifestly
seen to be done. It is needless to say that the judiciary and the judicial decisions, over the years,
have shaped the Indian polity to a great extent. The role played by the judiciary has been pivotal
in ensuring a process of fairness in governance and administration. Thus, be it the pragmatic
interpretation of Article 21 or propounding doctrines of equality, the judicial decisions in India
have infiltrated through every strata of the society.

While many of these decisions are laudable, in recent times, allegations, questioning the integrity
of this great institution have multiplied. Lack of accountability and the alleged wide spread
corruption have endangered the spirit of democracy, calling into question the integrity of the
conscience keepers of the law. As a result, constant public debates and scrutiny have subjected
the judiciary to stand the touchstone of accountability to ensure an increased transparency in the
judicial process and restore the lost public faith. However, the demand for greater accountability
in the judiciary has been met with resistance from within the judiciary, afraid of encroachment
into the realm of judicial independence.

THE IMPERVIOUS JUDICIARY: DOES ACCOUNTABILITY NECESSARILY


IMPEDE INDEPENDENCE?

“While unconstitutional exercise of power by the executive and legislative branches of the
government is subject to judicial restraint, the only check upon our own exercise of power is our
own sense of self restraint.” Corruption is a malaise which has penetrated through all strata of the
society. The absence of a mechanism to curb the menace of corruption leads to an unchecked
arbitrariness which in turn results in a widespread malaise of corruption and delinquent
environment. It is, thus, in an attempt to bypass such perverse manifestation of widespread
arbitrariness and corruption that the underlying philosophy of accountability operates.
Accountability functions on the framework of seeking integrity, a sine qua non for the efficient

49
functioning of any authority entrusted with responsibility. Justice Krishna Iyer, emphasizing the
need for an accountable mechanism in a democratic framework considered it to be fundamental,
so that the dreams of Constitution makers envisioned in Part III, IV and IVA of the Constitution
do not remain a mere illusion.5 The need for accountability, thus, cannot be over emphasized.
While the need for the same is desirable for the efficient functioning of any institution, it
assumes a greater degree of responsibility when Judiciary is called into question.

Judiciary, as one understands, is the edifice of a strong democracy as it endeavors not merely to
interpret the black letter of the law but also adopting an activist stance of creatively interpreting
it to suit the needs of the society. The office of the robed brethren is based on the great trust
reposed by the citizens who seek recourse to judicial powers to defend their democratic rights.

Hence, the need for accountability in Judiciary arises from within, to ensure a system of checks
and balances operative to prevent any unwarranted usurpation of power. Of late however, as
stated earlier, the integrity of this great institution has been called into question, more so since
there has been a complete absence of a transparent mechanism in place to cure the malady. It is
interesting to note that while the demand for greater accountability on such counts has been
constantly pressed for, unanimous voices of dissent have also risen in a defence “to enforce
silence in the disguise of preserving dignity.”

THE RELATIONSHIP BETWEEN JUDICIAL ACCOUNTABILITY

AND INDEPENDENCE

“The principle of the complete independence of the judiciary from the executive is the
foundation of many things in our island life. It has been widely imitated in varying degrees
throughout the free world .It is perhaps one of the deepest gulfs between us and all forms of
totalitarian rule.”-Sir Winston Churchill

The existence of an independent judiciary can be said to be the bulwark of governance. Needless
to say, there has always existed a tussle between the legislature and the executive to assume
control over the judiciary as can be traced back to the Constituent Assembly Debates in India.
Deciding on the independence of the judiciary was thus a key concern that the Members of the
Constituent Assembly thereby sought to address. At this juncture, one needs to take note of the
fact that the facet of independence was sought to be achieved by enactment of various
constitutional provisions, most importantly the appointment of the Judges. Appointment of
Judges in England by the Lord Chancellor and in America by the Senate was felt to be an
unsupervised and politicized process and was a sentiment shared by many in the Constituent
Assembly.

50
THE JUDICIARY AND THE RIGHT TO INFORMATION

ACT : TO TELL OR NOT TO TELL?

The deliberation surrounding the lack of transparency and the demand for an accountability
mechanism has gathered much momentum in the recent past with various fora vociferously
demanding the same. While there have been ambitious citizen initiatives like CJAR, a number of
members within the judiciary too have voiced their opinions in unison with the civil society.
Undoubtedly, the public debate surrounding the Bill has catalyzed the need for accountability
emphasizing on the need of preserving the sacrosanct judiciary in the environment of weakening
credibility. In the present contextual understanding, it is also imperative to appreciate the need of
a regulatory framework in the form of the proposed legislation as opposed to a code of conduct
to be adhered to which is formulated on the lines of a self-regulatory mechanism. As former CJI
Hon’ble Justice J S Verma puts it, “I believe most of us prefer voluntary correct behaviour
instead of outside imposition. That, in my humble view, is the dignified course for judges of the
higher judiciary, which appears to have been the view also of the framers of the Constitution.”

This led to adoption of a self-regulation mechanism by the Supreme Court on May 7, 1997. The
later Chief Justice’s Conference of 1999 endorsed the same, followed by the Bangalore
Principles of 2002.36Since there were no mechanisms to verify the suitability or compliance of
what was declared, thus there has never been any verification. There have not been any instances
of action taken against any judge for lack of or wrong disclosure, though many judges have come
forward and openly expressed their views in newspapers, blogs etc..., and even taken a stance
opposed to that of the CJI.

Amidst the controversies surrounding the issue of asset disclosure and the proposed legislation,
September 2, 2009 welcomed a bold decision by the ‘activist’ Delhi High Court in the CPIO,
Supreme Court of India v. Subhash Chandra Agarwal38 (hereinafter Supreme Court Judges
Assets case), wherein Justice S. Ravindra Bhat inter alia ruled that CJI could not claim immunity
from applicability of the Right to Information Act, 2005.Without questioning the propriety of the
ruling, in our humble opinion, it is still a watershed given that it realizes the importance of a
transparency measure in governance, which in other words also endorses the right of the citizens
to know the acts of public authorities. And this act of demanding information about governance
is a necessary concomitant of the RTI legislation. Hence, the attempt in this § would be to
contextualize the same in light of the asset disclosure controversy and the judgment of the Delhi
High Court.

A similar approach was taken by the Apex Court in Union of India v. Association for
Democratic Reforms and People’s Union for Civil Liberties v. Union of India, which concerned
the candidature for elections. The Court held:

51
“There is no question of knowing personal affairs of MPs or MLAs. The limited information is
whether the person who is contesting election is involved in any criminal case and if involved
what is the result? Further there are widespread allegations of corruption against the persons
holding post and power. In such a situation, question is not of knowing personal affairs but to
have openness in democracy for attempting to cure cancerous growth of corruptions by few rays
of light.

Hence, citizens who elect MPs or MLAs are entitled to know that their representative has not
miscomputed himself in collecting wealth after being elected. This information could be easily
gathered only if prior to election, the assets of such person are disclosed.”

52
MODULE IV

Domestic violations

National and International

Comparative studies in crime and justice cover two independent but overlapping areas. First is
the area of comparative criminology for which interest is in the study of crime as a social
phenomenon (the focus is more on the crime) and as social behavior (the focus is more on the
offender). Second is comparative criminal justice with its interest in determining how various
countries attempt to maintain social order and accomplish justice.

This chapter is about comparative criminal justice and has as its theme the procedures and
processes established to identify, adjudicate, and punish law violators in countries around the
world. This chapter, however, focuses on comparative criminology because a complete
understanding of a country’s criminal justice system must include an appreciation of that
country’s domestic crime and criminals. Similarly, because the phenomenon of transnational
crime propels much of today’s multinational cooperation, it behooves comparative criminal
justice to understand transnational crime and criminals.

Comparative Criminology Looks at Crime as a Social Phenomenon

When comparative criminologists study crime as a social phenomenon, they try to identify
commonalities and differences in crime patterns among divergent cultures (Barak-Glantz &
Johnson, 1983). There is obvious overlap with the next section because variation in crime rates
(crime as a social phenomenon) must first be established before behavioral explanations (crime
as social behavior) are offered.

Criminologists seeking to compare crime in two or more countries encounter two primary
problems. The first is to ensure that crime data from different countries have been defined,
reported, and recorded in a similar manner.

The second is compiling crime data in a manner that allows researchers to conveniently compare
many different countries. Both problems are addressed here. There is an understandable tendency
to compare, contrast, and even rank countries in terms of general and specific crime rates, yet
this is too often done without understanding the limits of such a portrayal. Countries increasingly
appreciate the importance of comparative work but are concerned that statistics will be used for
developing more “best places to live” types of rankings rather than for increasing the
understanding of domestic crime issues.

53
Numerical rankings based on crime data should be undertaken only with caution for very good
reasons. Consider, for example, differences in the legal definitions of crime. In the absence of a
universally agreed upon definition of what constitutes a particular crime, there is always the
chance that data on a specific crime in two countries do not actually compare similar acts. The
European Sourcebook of Crime and Criminal Justice Statistics provides a relevant example
(Council of Europe, 2003a). Countries were asked to use the following crime definition when
recording data about rape: Rape means sexual intercourse with a person against her/his will (per
vaginam or other). Where possible, the “other” than vaginal penetration could include violent
intramarital intercourse, sexual intercourse without force with a helpless person, or sexual
intercourse with force with a minor. However, sexual intercourse with a minor without force and
other forms of sexual assault were to be excluded.

When providing their crime data for the European Sourcebook (Council of Europe, 2003a),
countries were asked to indicate when they deviated from the provided definition of a crime. If a
person simply compared Switzerland’s rape rate with that of Latvia (2.6 per 100,000 population
in both countries in 2000) without attention to definitional differences, the two countries appear
to have similar rape rates. However, Switzerland’s data followed the standard definition in all
respects, but Latvia excluded acts other than vaginal penetration.

Upon recognizing the additional acts included in Switzerland’s data compared with the Latvia
data, we can understand that—despite the similar statistics— the two countries may not have
similar rape rates.

In addition to the problems presented by differences in legal definitions of crime, cross-national


comparison of crime rates is hindered by the way crime is reported in countries. For example, the
2000 International Crime Victims Survey (van Kesteren, Mayhew, & Nieuwbeerta, 2000) of 17
industrialized countries shows considerable range in how often crimes are reported in different
countries.

• Fewer than one-third of robbery offenses were reported to the police in

Japan and France, but more than 70% of the robberies in Northern

Ireland were reported.

• Nearly 80% of bicycle thefts were reported in Belgium compared to

about one-half in the United States.

• Car thefts were usually reported in all 17 countries.

The willingness of victims to report crime is not the only factor affecting

reporting rates. Also important are factors such as accessibility to police so a

54
report can be made (e.g., the number of police stations or telephones), the level of insurance
coverage available (certainly one reason that automobile theft reporting is high in industrialized
countries), and the level of trust that the public has for its police (a population under
authoritarian rule is less likely to report crime). Finally, the greater the difference in social,
economic, and political context between countries, the more unwise it is to make any comparison
of their crime rates. For example, different social norms in some societies may make it almost
impossible for women to report cases of rape or sexual abuse while in other societies women are
encouraged to come forward. Upon comparing Mexico’s 2002 rape rate (14.26 per 100,000
population) to that of the United States (32.99), one might assume that rape occurs less often in
Mexico (U.N. Office on Drugs and Crime, 2005a). Upon considering how social norms in
Mexico dramatically inhibit the reporting of rape ( Jordan, 2002a); however, it is apparent that
such comparison would yield inaccurate conclusions.

In addition to considering how accurately a crime is reported in countries being compared, it is


also necessary to determine how recording practices may vary. Van Dijk and Kangaspunta
(2000) highlight differing recording practices by noting that police in some countries are very
careful about recording every theft of a bicycle while in other countries the tracking of bicycle
thefts may have low— or even no—priority. Savage (1997) found errors such as the
miscalculation of rates and percentages by more than 100 errors in cross-national crime data
reported by the Interpol. Also, the efficiency of criminal justice agencies is likely to make a
difference. Higher rates of recorded crime in some countries may simply reflect more efficient
and thorough systems for reporting and recording crime in those countries. Similarly, low rates
of recorded crime rates may simply reflect system inefficiency. The result of all of this is that
crime statistics probably tell us as much about a country’s justice organization as about its crime
rate.

VICTIMIZATION RATES

Information from victimization studies can be quite useful for increasing our understanding of
crime within countries. The following are examples of information learned from the 2000
International Crime Victims Survey (van Kesteren et al., 2000).

• The risk of having a car stolen was highest in Australia, England and Wales, and France, but
victims of auto theft in Belgium, Japan, the Netherlands, and Poland were least likely to get their
cars back— suggesting proportionally more professional theft.

• Having something stolen from a car (e.g., luggage, radios, car mirrors) was more common in
Australia, England and Wales, Poland, and the United States.

• Bicycle theft is highest in countries where more bicycles are owned and, where bicycle theft is
common, stealing cars occurs less often.

55
• Robbery was comparatively uncommon in all countries, but risks were highest in Australia,
England and Wales, and Poland. Robbery risks were lowest in Japan and Northern Ireland.

• Women in Australia, England and Wales, Finland, and Sweden were most at risk of sexual
assault (i.e., incidents described as rape, attempted rape, or indecent assaults) while women in
Japan, Northern Ireland, Poland, and Portugal were least at risk.

• The most common reason for not reporting in all countries was that the incident was “not
serious enough” or there was “no loss.” The idea that police could not do anything about what
happened was also frequently mentioned, but few victims mentioned fear or dislike of the police
as their reason for not reporting.

• When asked how safe they feel walking alone in their area after dark, persons in Australia,
Catalonia, and Poland were most anxious, and those in Sweden and the United States were least
anxious.

TRANSNATIONAL CRIME

Louise Shelley (n.d.), director of the Transnational Crime and Corruption Center, suggests that
transnational crime will be as much a defining issue for 21st-century policymakers as was the
Cold War for the 20th century and colonialism for the 19th century. Few comparative
criminologists would disagree with her assessment. As a simple indication of the increasing
globalization of crime, consider just the following:

• In a dimly lit Internet café in Nigeria, clusters of teenage boys hover around aging computer
screens composing deceptive e-mails that will be sent to foreign (especially American) e-mail
addresses in an attempt to get the recipient to send money (McLaughlin, 2005).

• The DEA’s Operation “Cyber Chase” targeted e-traffickers who illicitly distributed drugs
worldwide using “rogue” Internet pharmacies. Arrests were made in Australia, Canada, Costa
Rica, India, and the United States (U.S. Department of State, 2005b).

• Following an established “Balkan route,” traffickers move women and children—who have
been deceived with promises of a better life—from Bulgaria, through Romania and Hungary, to
Germany (Di Nicola, 2005). In contrast to the general agreement about the growing impact of
transnational crime is the divergence of opinion regarding the specific crimes included in that
categorization. That problem is, in turn, linked to the difficulty of defining transnational crime.
In reference to similar acts, authors have used the terms cross-national crime, global crime,
international crime, and transnational crime. Of those, both international crime and transnational
crime have shown staying power and are being distinguished from one another. Natarajan (2005)

56
explains that international crime is generally used to refer to acts that threaten world order and
security (e.g., crimes against humanity, war crimes, and genocide), whereas transnational crimes
are criminal acts that span national borders, violating the laws of several countries.

Provisions relating to rape

What is Rape?

Rape under English law is defined more particularly where the law cover all the aspect of rape.
Under the Sexual Offences Act 2003, which came into force in April 2004, rape in England and
Wales was redefined from non-consensual vaginal or anal intercourse, and is now defined as
non-consensual penile penetration of the vagina, anus or mouth of another person. The changes
also made rape punishable with a maximum sentence of life imprisonment. Although a woman
who forces a man to have sex cannot be prosecuted for rape under English law, if she helps a
man commit a rape she can be prosecuted for the crime (see, for example, the conviction of
Claire Marsh in 2001). A woman can also be prosecuted for causing a man to engage in sexual
activity without his consent, a crime which also carries a maximum life sentence if it involves
penetration of the mouth, anus or vagina. The statute also includes a new sexual crime, called
“assault by penetration”, which also has the same punishment as rape, and is committed when
someone sexually penetrates the anus or vagina with a part of his or her body, or with an object,
without that person’s consent.

Sexual offence act, 2003 states as follows:-

Rape

(1) A person (A) commits an offence if-

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances,
including any steps A has taken to ascertain whether B consents.

57
With compare to this law, law of India under penal code not cover the penetration of mouth and
if such happened then that not amount to rape under our present law above all in India it is
observe by our Hon’ble courts that in case of rape if any woman help to commit such rape she
will be not charge for the offence of rape as she help to commit the rape but in England it
happens and their punishment are also more than us so any one before committing this must
think and in the mind of people there is some fear about law and it’s punishment.

Like every other country, laws relating to rape do exist in India. However, justice is rarely
achieved. In most cases, rape victims themselves hesitate to make a complaint due to the stigma
attached to it in society. Sometimes, even if a complaint is made, the offender gets away due to
wide spread ignorance of the laws relating to the offense.

Rape means an unlawful intercourse done by a man with a woman without her valid consent.
(Section 375 of the Indian Penal Code, 1860 )

A man is said to commit “rape” if he has sexual intercourse with a woman under circumstances
falling under any of the six following descriptions :-

1. Against her will.

2. Without her consent.

3. With her consent, when her consent has been obtained by putting her or any person in whom
she is interested in fear of death or of hurt.

4. With her consent, when the man knows that he is not her husband, and that her consent is
given because she believes that he is another man to whom she is or believes herself to be
lawfully married.

5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind
or intoxication or the administration by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature and consequences of that to
which she gives consent.

6. With or without her consent, when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence
of rape.

58
Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen
years of age, is not rape.

Rape is a stigma which exists in the society from a long time. The dictionary meaning of word
rape is “the ravishing or violation of a woman.” The rape victim i.e. a woman as woman cannot
commit rape due to biological reasons. She is traumatized after the event; it is very difficult for a
woman to come out of this trauma. Rape in India is a cognizable offence. There are many
provisions in various Acts. The word rape is legally defined u/s 375 of Indian Penal Code, 1860.
It defines the rape and also prescribes its punishment. Whenever a man penetrates or does sexual
intercourse with a woman without her consent or will it amounts to rape. Penetration here means
that only a slightest of the touch of penis to vagina amounts to rape, unruptured hymen of woman
does not prove that rape was not committed. There are exceptions to it also i.e. when a man does
sexual intercourse with his wife who is above 15 years of age. The rape law under Indian Penal
Code had gone through a lot of amendments. In 1983, amendment was made and S. 376(2) i.e.
Custodial rape, S. 376(A) i.e. marital rape & S. 376(B to D) i.e. Sexual Intercourse not
amounting to rape were added.

U/s 228A of Indian Penal Code, No person can disclose the name of the rape victim and if
anybody discloses the name, he shall be punished with either description for a term which may
extend to two years and shall also be liable for fine.

U/s 114-A of Indian Evidence Act, presumption can be made as to the absence of consent in
certain prosecutions for rape.

U/s 53(1) of Code of Criminal Procedure, When a person is arrested on a charge of committing
an offence of such a nature and alleged to have been committed under such circumstances that
there are reasonable grounds for believing that an examination of his person will afford evidence
as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting
at the request of a police officer not below the rank of sub-inspector, and for any person acting in
good faith in his aid and under his direction, to make such an examination of the person arrested
as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to
use such force as is reasonably necessary for that purpose.

U/s 164A of Code of Criminal Procedure, provisions for medical examination of rape victim are
given.

U/s 327(2) of Code of Criminal Procedure, there should be in camera trial for all rape victims.

59
The Judiciary in India is burdened with a lot of work and therefore judgment of the rape cases
comes very late. Sometimes it comes so late that either of the parties had died. So, there should
be speedy trials in rape cases so that the victim gets justice as it is rightly stated that “Justice
delayed is justice denied.”

As every coin has two sides, in this case also there are two sides. Many a times girls also make
fake complaints just to ruin the life of a boy, sometimes the parents of girl compels her to file a
complaint against the boy she loves, as the law shows a lot of sympathy towards the girl. The
accused is left with nothing, when the complaint is made his life is ruined irrespective of the fact
that he was proved guilty or not. So, in my views there must come an amendment which
equalizes the burden of proof on both the sides and the law works smoothly. It should be such
that is contradicts the statement i.e. “Law is there for vigilant.”

South Africa has the highest per capita rate of reported rapes in the world: 119 per 100000
people, according to the UN. That compares with 30 per 100000 in the US. Analysts and
women’s advocacy groups argue South Africa’s total, including unreported rapes could be five to
nine times higher .

Police statistics show more than 50000 rapes are reported every year . In 1987 and 1991 number
of cases reported were7767 and 9793 respectively. About 26% (11112) increase in number in the
year 1992 – (NCRB). There is one rape in every 54 minutes .

The National Commission for Women has identified nine areas for review . These are:

1. Review of the definition of rape

2. Reduction of procedural delays

3.Uniformity in age of consent under sections 375 and 376 of Indian Penal Code, 1860, to bring
it in conformity with the Child Marriage Restraint Act, 1869

4. Whether exception to section 375 should be deleted

5. Whether section 155 clause 4 of the Indian Evidence Act 1872 needs to be amended or
deleted.

6. Whether statutory provisions are needed for compensation to the rape victim

60
7. Whether provisions for counseling legal aid should be made mandatory under laws.

8. Death penalty to persons convicted for rape

9. Recommendation for enhancement of punishment in cases where the accused, with the
knowledge of suffering from HIV infection/AIDS, infects the victim as a result of rape.

Plea Bargaining

A plea bargain is a procedure incorporated in Chapter XXI-A of the Criminal Procedure Code
for a mutually satisfactory disposition of a criminal case.

In plea bargain proceedings, the Investigating Officer, the Public Prosecutor, the victim of a
crime, the complainant and the person accused of an offence join hands to voluntarily settle a
pending criminal case to each other’s mutual satisfaction. The process is completely voluntary.

If the plea bargain succeeds, the criminal case is disposed of in terms of the agreed settlement. If
the plea bargain does not succeed, the criminal case proceeds from the stage when the plea
bargain application was filed.

On receipt of an application for Plea Bargaining, the Metropolitan Magistrate will


scrutinize it and if it is in order, he or she will send to Plea Bargaining Magistrate through
office of Chief Metropolitan Magistrate at Tis Hazari Court complex and office of ACMM
at Karkardooma Court Complex. The application will be taken up for consideration by the
Plea Bargain Magistrate as soon as possible and in any event on the next working day.

Where does the Plea Bargain Magistrate hold a sitting?


The Plea Bargain Magistrate will initially be available in Room No. 238, (2nd Floor), Tis
Hazari Courts, Delhi on all working days between 10.00 pm to 5.00 pm and in Room No-
67 Block -B, fourth floor at Karkardooma Court Complex between 2.00pm to 5.00pm

What will the Plea Bargain Magistrate do on receipt of such an application?


The Plea Bargain Magistrate will consider the application and issue notice to the
Investigating Officer in the case, the Public Prosecutor, the victim of the offence (if any)
and the complainant. Whenever necessary, if it is found that the applicant/accused is not
represented by a lawyer, he will be provided the services of a free legal aid lawyer.

After all the concerned parties receive the notice, what is the first step to be
taken?
61
Preferably, before meeting the Plea Bargain Magistrate at time fixed in response to the
notice, all the parties concerned in the Plea Bargain should try to arrive at a settlement in
consultation with the Public Prosecutor. If it is not possible to reach a settlement in
advance, the Plea Bargain Magistrate will assist the parties in arriving at an amicable
settlement.

What is the next step required to be taken?


If an amicable settlement is not arrived at, the Plea Bargain Magistrate will duly inform the
Chief Metropolitan Magistrate / ACMM concerned. Failed proceeding are kept in the Plea
Bargaining centre. However, if a Plea Bargain is being arrived at :
 The Plea Bargain Magistrate will have an in camera or Private discussion with the
 applicant in the presence of his lawyer to determine
 Whether the Plea Bargain is voluntary,
 Whether the Plea Bargain is acceptable to the applicant,
 Whether the applicant has understood the meaning and effect of the Plea Bargain.
If the Plea Bargain Magistrate is satisfied that the Plea Bargain meets all the legal
requirements, he will accept it and pass an order disposing of the case in terms of the
settlement and inform the Chief Metropolitan Magistrate / ACMM concerned accordingly.
 All the parties to the Plea Bargain are required to sign the order recording the settlement.

Are the Plea Bargain proceedings confidential?

Yes, the entire Plea Bargain proceedings are absolutely confidential. If the Plea Bargain
fails, then no party can use anything said in the Plea Bargain proceedings in the pending
criminal case. Even the trial Judge will not ask any question about the Plea Bargain
proceedings.

How long does it take to dispose of a Plea Bargain application?

The Plea Bargain Magistrate will make every effort to dispose of a Plea Bargain
application as soon as all the parties appear before him. In any event, if no settlement is
reached within sixty (60) days, the application will be returned to the Chief Metropolitan
Magistrate ACMM Concerned and thereafter the criminal case will proceed quickly.

Can Plea Bargain application be withdrawn?

Yes, a Plea Bargain application can be withdrawn at any time before all the parties to the
Plea Bargain sign the settlement.

62
Can an accused make more than one application for a Plea Bargain?

Yes, an accused can make more than one application for Plea Bargain. The applicant must,
however, realize that greater the delay in making an application for Plea Bargain, it will be
more difficult to arrive at an amicable settlement. It is, therefore, advisable to accept the
bargain at the time of making the first Plea Bargain application.
PLEA BARGAINING
What is the sentence that will be awarded on the acceptance of Plea Bargain
application?

This will depend on the nature of the offence and no definite answer can be given. But the
options are :
• being put on probation under the Probation of Offenders Act, 1958,
• a fine or a compensatory amount,
• period of custody already undergone,
• custody upto a maximum of one-fourth (1/4) or one-half (1/2) the period of
imprisonment provided by law, as the case may be.
An applicant will be entitled to set off the period of detention undergone against the
sentence of imprisonment.

If an admonition or a supervisory order is passed under the Probation of Offenders Act,


1958, then Section 12 of the said Act provides that it shall not cast any stigma on the
offender.
The benefits of a successful plea bargain are many. Some of them are :
· The process is 100% voluntary,
· The applicant is likely to get a much reduced punishment,
· There will be quick disposal of the pending criminal case,
· The applicant will avoid the trouble of coming to the court for several hearings,
· If successful, a plea bargain will result in an amicable and mutually satisfactory
disposition of the pending criminal case.

IMPORTANT :
· An application for a plea bargain can be withdrawn at any time before the disposal
of the case.
· An applicant is entitled to the presence of his lawyer throughout the plea bargain
proceedings.

63
White collar crimes
The phrase "white-collar crime" was coined in 1939 during a speech given by Edwin Sutherland
to the American Sociological Society. Sutherland defined the term as "crime committed by a
person of respectability and high social status in the course of his occupation." Although there
has been some debate as to what qualifies as a white-collar crime, the term today generally
encompasses a variety of nonviolent crimes usually committed in commercial situations for
financial gain. Many white-collar crimes are especially difficult to prosecute because the
perpetrators use sophisticated means to conceal their activities through a series of complex
transactions. The most common white-collar offenses include: antitrust violations, computer and
internet fraud, credit card fraud, phone and telemarketing fraud, bankruptcy fraud, healthcare
fraud, environmental law violations, insurance fraud, mail fraud, government fraud, tax
evasion, financial fraud,securities fraud, insider
trading, bribery, kickbacks, counterfeiting, public corruption,money
laundering, embezzlement, economic espionage and trade secret theft. According to the Federal
Bureau of Investigation, white-collar crime is estimated to cost the United States more than $300
billion annually. Although typically the government charges individuals for white-collar crimes,
the government has the power to sanction corporations as well for these offenses. The penalties
for white-collar offenses include fines, home detention, community confinement, paying the cost
of prosecution, forfeitures, restitution, supervised release, and imprisonment. However, sanctions
can be lessened if the defendant takes responsibility for the crime and assists the authorities in
their investigation. Any defenses available to non-white-collar defendants in criminal court are
also available to those accused of white-collar crimes. A common refrain of individuals or
organizations facing white-collar criminal charges is the defense of entrapment. For instance, in
United States v. Williams, 705 F.2d 603 (2nd Cir. 1983), one of the cases arising from
"Operation Abscam," Senator Harrison Williams attempted unsuccessfully to argue that the
government induced him into accepting a bribe.

Both state and federal legislation enumerate the activities that constitute white-collar criminal
offenses. The Commerce Clause of the U.S. Constitution gives the federal government the
authority to regulate white-collar crime, and a number of federal agencies (see sidebar),
including the FBI, the Internal Revenue Service, the Secret Service, U.S. Customs, the
Environmental Protection Agency, and the Securities and Exchange Commission, participate in
the enforcement of federal white-collar crime legislation. In addition, most states employ their
own agencies to enforce white-collar crime laws at the state level.

DEFINITION FROM NOLO’S PLAIN-ENGLISH LAW DICTIONARY

A variety of nonviolent financial crimes, generally committed by businesspeople or public


officials,involving commercial fraud, consumer fraud, swindles, insider trading on the stock
market, embezzlement, bribery, or other dishonest schemes.

64
TYPES OF WHITE COLLAR CRIME

1. Bank Fraud:

To engage in an act or pattern of activity where the purpose is to defraud a bank of funds.

2. Blackmail:

A demand for money or other consideration under threat to do bodily harm, to injure
property, to accuse of a crime, or to expose secrets.

3. Bribery:

When money, goods, services, information or anything else of value is offered with intent
to influence the actions, opinions, or decisions of the taker. You may be charged with
bribery whether you offer the bribe or accept it.

4. Cellular Phone Fraud:

The unauthorized use, tampering, or manipulation of a cellular phone or service. This can
be accomplished by either use of a stolen phone,or where an actor signs up for service
under false identification or where the actor clones a valid electronic serial number (ESN)
by using an ESN reader and reprograms another cellular phone with a valid ESN number.

5. Computer fraud:

Where computer hackers steal information sources contained on computers such as: bank
information, credit cards, and proprietary information.

6. Counterfeiting:

Occurs when someone copies or imitates an item without having been authorized to do so
and passes the copy off for the genuine or original item. Counterfeiting is most often

65
associated with money however can also be associated with designer clothing, handbags
and watches.

7. Credit Card Fraud:

The unauthorized use of a credit card to obtain goods of value.

8. Currency Schemes:

The practice of speculating on the future value of currencies.

9. Embezz1ement:

When a person who has been entrusted with money or property appropriates it for his or
her own use and benefit.

10. Environmental Schemes:

The overbilling and fraudulent practices exercised by corporations which purport to clean
up the environment.

11. Extortion:

Occurs when one person illegally obtains property from another by actual or threatened
force, fear, or violence, or under cover of official right.

12. Forgery:

When a person passes a false or worthless instrument such as a check or counterfeit


security with the intent to defraud or injure the recipient.

13. Health Care Fraud:

66
Where an unlicensed health care provider provides services under the guise of being
licensed and obtains monetary benefit for the service.

14. Insider Trading:

When a person uses inside, confidential, or advance information to trade in shares of


publicly held corporations.

15. Insurance Fraud:

To engage in an act or pattern of activity wherein one obtains proceeds from an insurance
company through deception.

16. Investment Schemes:

Where an unsuspecting victim is contacted by the actor who promises to provide a large
return on a small investment.

17. Kickback:

Occurs when a person who sells an item pays back a portion of the purchase price to the
buyer.

18. Larceny/Theft:

When a person wrongfully takes another person's money or property with the intent to
appropriate, convert or steal it.

19. Money Laundering:

The investment or transfer of money from racketeering, drug transactions or other


embezzlement schemes so that it appears that its original source either cannot be traced or
is legitimate.

67
20. Racketeering:

The operation of an illegal business for personal profit.

21. Securities Fraud:

The act of artificially inflating the price of stocks by brokers so that buyers can purchase
a stock on the rise.

22. Tax Evasion:

When a person commits fraud in filing or paying taxes.

23. Telemarketing Fraud:

Actors operate out of boiler rooms and place telephone calls to residences and
corporations where the actor requests a donation to an alleged charitable organization or
where the actor requests money up front or a credit card number up front, and does not
use the donation for the stated purpose.

24. Welfare Fraud:

To engage in an act or acts where the purpose is to obtain benefits (i.e. Public Assistance,
Food Stamps, or Medicaid) from the State or Federal Government.

25. Weights and Measures:

The act of placing an item for sale at one price yet charging a higher price at the time of
sale or short weighing an item when the label reflects a higher weight.

TYPES OF WHITE COLLAR SCHEMES

68
1. Advanced Fee Schemes:

Actor induces victim to give him some type of advanced fee in return for a future benefit.
The future benefit never occurs and victim never receives the advanced fee back.

2. Airport Scam:

Actor approaches victim in an airport stating that the newspaper stand cannot change his
one hundred dollar bill and asks the victim for change. Victim provides actor with the
change, actor returns to the store to get the one hundred dollar bill back, however, never
returns to victim.

3. Auto Repair:

Actor hangs out around an auto repair shop and approaches victims who leave after
getting estimates. Actor claims to do work off duty at a very low cost. Once actor has the
car, inferior work is completed and victim cannot get the return of the car until the very
high bill is paid.

4. Check Kiting:

A bank account is opened with good funds and a rapport is developed with the bank.
Actor then deposits a series of bad checks but prior to their discovery, withdraws funds
from the bank.

5. Coupon Redemption:

Grocery stores amass large amounts of coupons and redeem them to manufacturers when
in fact merchandise was never sold.

6. Directory Advertising:

69
Actor either impersonates sales person from a directory company like the yellow pages or
fraudulently sells advertising which the victim never receives.

7. Fortune Telling:

Actor advises victim that victim is cursed. Actor advises victim that the curse must be
removed. Actor advises that she must meditate to the spirits and will require payment.
Over a period of time, victim pays fortune teller thousands of dollars to remove curse.

8. Gypsies:

Actor states that victims money is cursed. In order to remove the curse, the money must
be placed into a bag or box that the actor provides. The bag or box is switched. Actor
advises victim to perform certain rituals over the money and the curse will be removed.
The bag or box cannot be opened for a period of time when it is opened, the money is
gone.

9. Home Improvement:

Actor approaches a home owner with a very low estimate for a repair or improvement.
Inferior or incomplete work is performed. Once the repairs are completed, actor
intimidates the victim to pay a price much greater than the original estimate.

10. Inferior Equipment:

Actors travel around selling inferior equipment such as tools at high prices.

11. Jamaican Switch:

Actor #1 approaches a victim looking for the address of a prostitute. Actor #1 shows a
large sum of money to the victim. Actor #2 arrives and tells Actor #1 where he can find
the prostitute but cautions on taking all the money as the prostitute might rob him. Actor
#1 asks the victim to hold the money for him. Actor #1 puts his money into a
handkerchief with the victims money. Actor #1 shows the victim how to hide the money
under his arm, inside his shirt while switching handkerchiefs. Victim takes the
handkerchief and the parties split up, however, Actor #1 leaves with victims money.

70
12. Land Fraud:

Actor induces victim to purchase tracks of land in some type of retirement development
which does not exist.

13. Odometer Fraud:

Unscrupulous used car salesman purchased used cars and turn back the odometers. The
used car is sold at a higher price due to its low mileage.

14. Pigeon Drop:

Actor #1 befriends the victim. Actor #2 shows both Actor #1 and victim a "found"
package containing a large amount of cash. Actor #1 insists that the found money be
divided equally but only after each person puts up his own money to demonstrate good
faith. All the money is put in one package and the package is later switched.

15. Police Impersonation:

Actor tells victim that his bank is being operated by fraudulent bank officers. Actor
instructs victim to take money out of bank and place it into a good bank. After the money
is withdrawn, the actor allegedly takes the money to the police station for safe keeping.
The victim never sees the money again.

16. Ponzi:

An investment scheme where the actor solicits investors in a business venture, promising
extremely high financial returns or dividends in a very short period of time. The actor
never invests the money, however, does pay dividends. The dividends consist of the
newest investors funds. The first investors, pleased to receive dividends, encourage new
investors to invest. This scheme falls apart when the actor no longer has sufficient new
investors to distribute dividends to the old investors or the actor simply takes all the funds
and leaves the area.

17. Pyramid:

71
An investment fraud in which an individual is offered a distributorship or franchise to
market a particular product. The promoter of the pyramid represents that although
marketing of the product will result in profits, larger profits will be earned by the sale of
franchises. For example, if a franchise price is $10,000.00, the seller receives $3,500.00
for every franchise sold. Each new franchise purchaser is presented with the same
proposal so that each franchise owner is attempting to sell franchises. Once the supply of
potential investors is exhausted, the pyramid collapses. Many times, there are no products
involved in the franchise, simply just the exchange of money.

18. Quick Change:

Victim is confused by actors speedy series of money exchanges and in the end, is short
changed.

19. Shell Game:

Actor #1 manipulates a pea beneath three walnut shells or bottle caps. Actor #1 moves
the caps around and shows victim the cap with the pea under it. With the encouragement
of another player, also Actor #2, victim places larger and larger bets as to which cap
contains the pea. The game is ended by Actor #1 when the take is large enough.

20. Utilities Impersonators:

Actor impersonates utilities employees by wearing jumpsuits with name tags. Actor
approaches victim with story about a gas leak or electrical surge to gain entry to the
home. Valuables are taken by actor.

21. VCR Scam:

Actor purports to sell new VCR's or televisions at an extremely low cost due to his
connections. Victim pays for the VCR or television only to discover that the box has been
filled with rocks.

22. West African Investment Scams:

72
Actors target businesses and obtain business' bank account information from which all
funds are later withdrawn.

Juvenile Justice
Juvenile justice is the area of criminal law applicable to persons not old enough to be held
responsible for criminal acts, In most states, juvenile justice law is applicable to those under 18
years old. Juvenile law is mainly governed by the juvenile justice codes of states. The main goal
of the juvenile justice system is rehabilitation rather than punishment.
Juvenile justice is administered through a juvenile or family court, however, but juvenile court
does not have jurisdiction in cases in which minors are charged as adults. Where parental
neglect or loss of control is a problem, the juvenile court may seek out foster homes for the
juvenile, treating the child as a ward of the court.
The Federal Juvenile Delinquency Act defines juvenile delinquency (any act that is othewise a
crime, but is committed by someone under 18 years of age) and sets forth rules by which state
laws must comply with regard to juvenile court procedures and punishments. The purpose of the
act is to assist states and local communities with funding and standards to be used in providing
community based preventative services to youths in danger of becoming delinquent, training
individuals in occupations providing such services, and providing technical assistance in the
field.

Juvenile delinquency, also known as juvenile offending, or youth crime, is participation in illegal
behavior by minors (juveniles) (individuals younger than the statutory age of majority). Most
legal systems prescribe specific procedures for dealing with juveniles, such as juvenile detention
centers, and courts. A juvenile delinquent is a person who is typically under the age of 18 and
commits an act that otherwise would have been charged as a crime if they were an adult.
Depending on the type and severity of the offense committed, it is possible for persons under 18
to be charged and tried as adults.

In recent years in the US the average age for first arrest has dropped significantly, and younger
boys and girls are committing crimes. Between 60–80% percent of adolescents, and pre-
adolescents engage in some form of juvenile offense. These can range from status offenses (such
as underage smoking), to property crimes and violent crimes. The percent of teens who offend is
so high that it would seem to be a cause for worry. However, juvenile offending can be
considered normative adolescent behavior. This is because most teens tend to offend by
committing non-violent crimes, only once or a few times, and only during adolescence. It is
when adolescents offend repeatedly or violently that their offending is likely to continue beyond
adolescence, and become increasingly violent. It is also likely that if this is the case, they began
offending and displaying antisocial behavior even before reaching adolescence.

Juvenile Justice: Modern concepts of Working with Children in Conflict with the Law
This publication is intended primarily for a field-based practitioner working to improve the
system for the administration of juvenile justice in any country. The purpose of the publication is

73
to provide practitioners with concrete guidance on developing effective programmes in the field
of juvenile justice.
The publication examines and documents models of good practice from Save the Children's
expertise in juvenile justice work and includes examples of good practice in juvenile justice work
by other agencies. It has been developed for field staff and others (both inside and outside of
Save the Children UK) who are interested and involved in juvenile justice work.
In order to bring about change to juvenile justice systems, practitioners must first have an
understanding of the overall aims and objectives of the juvenile justice system in their country,
as well as of the international framework for the administration of juvenile justice.

Development of the Juvenile Justice System

The legal concept of juvenile status, like the concept of childhood itself, is relatively new. The
juvenile court system was established in the United States about two hundred years ago, with the
first court appearing in Illinois in 1899. Prior to that time, children and youth were seen as
miniature adults and were tried and punished as adults.

During the progressive era, which occurred between 1880 and 1920, social conditions in the
United States were characterized by large waves of immigration and a dramatic increase in
urbanization. As a direct result, hundreds of indigent children wandered the streets, and many
became involved in criminal activity. Initially, children who were convicted of crimes were
housed with adult criminals. Social activists, law makers, and other officials soon realized that
children institutionalized with adults were learning adult criminal behaviors and were exiting
those institutions ready for life careers in criminality. Because of this negative influence,
separate juvenile court systems and accompanying correctional institutions were developed.

Early juvenile institutions in the United States were based on the English Bridewell institution
which emphasized the teaching of life and trade skills. The idea behind teaching skills was that
criminality was a result of the social environment and often was a survival mechanism. If youth
were taught other skills, they were more likely to make meaningful contributions to society upon
their release.

Three other types of juvenile institutions began to appear in the United States during the
progressive era: houses of refuge, new reformatories, and separate institutions for juvenile
females. Houses of refuge focused on the reeducation of youth and used indeterminate
sentencing, religious training, and apprenticeships in various trades. The houses were organized

74
using a military model to promote order and discipline, but the houses were often overcrowded
and youth were overworked.

New reformatories, established in the mid to late 1800s, were cottages and foster homes that
were often situated on farms. Family-type organization was prevalent, and hard physical labor
was stressed. New reformatories suffered from the same types of problems that houses of refuge
did. Separate juvenile institutions for girls appeared in the mid 1880s, and these focused on
teaching domestic and childrearing skills to girls.

The first juvenile courts operated under the philosophy of parens patriae first articulated in
Prince v. Massachusetts (1944). This philosophy meant the state could act "as a parent," and
gave juvenile courts the power to intervene whenever court officials felt intervention was in the
best interests of the child. Any offense committed was secondary to the offender. While parens
patriae was designed to handle youth committing criminal acts, the discretion of this philosophy
became increasingly more broad and was constantly debated in court. A number of pivotal cases
ensued which helped the juvenile justice system evolve.

Ombudsman

An ombudsman is usually appointed by the government or by parliament but with a significant


degree of independence, who is charged with representing the interests of the public by
investigating and addressing complaints of maladministration or violation of rights. In some
countries an Inspector General, Citizen Advocate or other official may have duties similar to
those of a national ombudsman, and may also be appointed by the legislature. Below the national
level an ombudsman may be appointed by a state, local or municipal government, and unofficial
ombudsmen may be appointed by, or even work for, a corporation such as a utility supplier or a
newspaper, for an NGO, or for a professional regulatory body.

Whether appointed by the legislature, the executive, or an organization (or, less frequently,
elected by the constituency that he or she serves), the typical duties of an ombudsman are to
investigate complaints and attempt to resolve them, usually through recommendations (binding
or not) or mediation. Ombudsmen sometimes also aim to identify systemic issues leading to poor
service or breaches of people's rights. At the national level, most ombudsmen have a wide
mandate to deal with the entire public sector, and sometimes also elements of the private sector
(for example, contracted service providers). In some cases, there is a more restricted mandate, for
example with particular sectors of society. More recent developments have included the creation
of specialised Children's Ombudsman and Information Commissioner agencies.

75
In some jurisdictions an ombudsman charged with the handling of concerns about national
government is more formally referred to as the "Parliamentary Commissioner" (e.g. the United
Kingdom Parliamentary Commissioner for Administration, and the Western Australian state
Ombudsman). In many countries where the ombudsman's remit extends beyond dealing with
alleged maladministration to promoting and protecting human rights, the ombudsman is
recognised as the national human rights institution. The post of ombudsman had by the end of
the 20th century been instituted by most governments and by some intergovernmental
organizations such as the European Union.

Making a complaint to an ombudsman is usually free of charge.

A prototype of ombudsmen may have flourished in China during the Qin Dynasty (221 BC), and
in Korea during the Joseon Dynasty.[1] The position of Secret royal inspector, or Amhaeng-eosa
(암행어사, 暗行御史) was unique to the Joseon Dynasty, where an undercover official directly
appointed by the king was sent to local provinces to monitor government officials and look after
the populace while travelling incognito. The Roman Tribune had some similar roles, with power
to veto acts that infringed upon the Plebeians. Another precursor to the ombudsman was the
Turkish Diwan-al-Mazalim which appears to go back to the second Caliph, Umar (634–644) and
the concept of Qadi al-Qadat.[2]

An indigenous Swedish, Danish and Norwegian term, Ombudsman is etymologically rooted in


the Old Norse word umboðsmaðr, essentially meaning "representative" (with the word
umbud/ombud meaning proxy, attorney, that is someone who is authorized to act for someone
else, a meaning it still has in the Scandinavian languages). The first preserved use is in Sweden.
In the Danish Law of Jutland from 1241, the term is umbozman and means a royal civil servant
in a hundred. From 1552, it is also used in the other Scandinavian languages such as the both
Icelandic and Faroese umboðsmaður, the Norwegian ombudsmann and the Danish ombudsmand.
The Swedish speaking minority in Finland uses the Swedish terminology.

The modern use of the term began in Sweden, with the Swedish Parliamentary Ombudsman
instituted by the Instrument of Government of 1809, to safeguard the rights of citizens by
establishing a supervisory agency independent of the executive branch. The predecessor of the
Swedish Parliamentary Ombudsman was the Office of Supreme Ombudsman ("Högste
Ombudsmannen"), which was established by the Swedish King, Charles XII, in 1713. Charles
XII was in exile in Turkey and needed a representative in Sweden to ensure that judges and civil
servants acted in accordance with the laws and with their duties. If they did not do so, the
Supreme Ombudsman had the right to prosecute them for negligence. In 1719 the Swedish
Office of Supreme Ombudsman became the Chancellor of Justice. The Parliamentary
Ombudsman was established in 1809 by the Swedish Riksdag, as a parallel institution to the still-
present Chancellor of Justice, reflecting the concept of separation of powers as developed by
Montesquieu.

76
The Parliamentary Ombudsman is the institution that the Scandinavian countries subsequently
developed into its contemporary form, and which subsequently has been adopted in many other
parts of the world. The word ombudsman and its specific meaning have since been adopted in
various languages, including Spanish, Dutch and Czech. The German language uses
Ombudsmann, Ombudsfrau and Ombudsleute. Notable exceptions are French and Finnish, that
use translations instead. Modern variations of this term include "ombud", "ombuds",
"ombudsperson", or "ombudswoman", and the conventional English plural is ombudsmen.

India

The Government of India has designated several ombudsmen (sometimes called Chief Vigilance
Officer (CVO)) for the redress of grievances and complaints from individuals in the banking,
insurance and other sectors being serviced by both private and public bodies and
corporations.[61] The CVC (Central Vigilance Commission) was set up on the recommendation
of the Santhanam Committee (1962–64).

Lokpal

Main article: Lokpal

In India, the Ombudsman is known as the 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 (parliamentary commissioner, as in
New Zealand) and one Lokayukta each at the State level for redress of people's grievances.
However, the jurisdiction of the Lokpal did not extend to the judiciary (as in case of New
Zealand). The central Government introduced the first Lokpal Bill, Lokpal and Lokayuktas Bill
in 1968, and further legislation was introduced in 2005, but has so far not been enacted.

Lokayukta

Main article: Lokayukta

The state-level Lokayukta institution has developed gradually. Orissa was the first state to
present a bill on establishment of Lokayukta in 1970, but Maharashtra was the first to establish
the institution, in 1972. Other states followed: 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), Chhattishgarh (2002),
Uttaranchal (2002), West Bengal (2003) and Haryana (2004). The structure of the Lokayukta is
not uniform across all the states. Some states have UpaLokayukta under the Lokayukta and in
some states, the Lokayukta does not have suo moto powers of instigating an enquiry.

77
Kerala State has an Ombudsman for Local Self Government institutions like Panchayats,
Municipalities and Corporations. He can enquire/investigate into allegations of action, inaction,
corruption and maladministration. A retired Judge of the High Court is appointed by the
Governor for a term of three years, under the Kerala Panchayat Raj Act.

In the State of Rajasthan, the Lokayukta institution was established in 1973 after the Rajasthan
Lokayukta and Up-Lokayuktas Act, 1973 was passed by the State Legislature.

OMBUDSMAN :INDIA AND THE WORLD COMMUNITY

The institution of Ombudsman is origin of Scandinavian countries. Sweden was the first country
to introduce this institution in 'its present form in 1809. The object of this institution is'to give
relief when the administrative action is contrary to the law, or not reasonable, unjust, oppressive,
improper, discriminatory, mistake of law or fact, wrong, discretionary power is exercised for an
improper purpose or on irrelevant grounds or consideration discriminatory, unjust, unreasonable
action which is not supported by the law etc. Hence this institution is having vast jurisdiction in
connection with the maladministration. Therefore this institution was known as institution to
register a small man's battle against red tap and administration injustice. The Ombudsman is to
act as watch dog over departmental administration. Needless to say because of this utility the
institution was adopted by the various countries of the world like, Finland in 1919, Denmark in
1953, Norway in 1963, New Zealand in 1962, England in 1967 and Czecgiskivajua, Democratic
Republic of Vietnam, G. D. R. , Hungary, Poland, and Romania, etc.

2. In New Zealand, a person feeling aggrieved by the administrative action may complain
before the Ombudsman. The Ombudsman has been empowered to investigate any action,
decision, recommendation or inaction on the part of a department placed under his jurisdiction.

3. In the United States of America, such institution is known as Ombudsmania. Finland has
one Parliamentary Ombudsman and the Chancellor of justice to safeguard the rights o f the
individual. Ombudsman has power to supervise all the state administration, civil and military in
Denmark. The Ombudsman is treated as a safety valve in Denmark. Permanent Commission of
Enquiry is popularly known as Tanzanian Ombudsman. The citizens of Tanzania are satisfied
with the functioning of Permanent Commission of positive protection of the basic
rights of Tanzanian people.

78
4. The Ombudsman in Norway is based on the Swedish and specially Danish system. Here the
Ombudsman's control is not limited to administrative activity in regard to private citizens but
also applied to internal 'personnel administration, appointments, disciplinary measures,
and dismissals etc.

5. In England, the Whyatt Report of 1961 (The citizens and the Administration [1961])
recommended the appointment of a Parliamentary Commissioner with a status comparable to
that of the Comptroller and Auditor General and with functions similiar to those of the Danish
Ombudsman.

6. In India, the idea of establishing an institution similar to that of an Ombudsman was


brought by Shri M. C. Setalwad in his speech at the All India Lawyers Conference in 1962.
Administrative Reform Commission also extensively investigated this idea and gave its definite
suggestions to the Government in its Interim Report on 14th October, 1962. It suggested that
there should be an Ombudsman at the centre appointed under Central Law and an Ombudsman
'in each state appointed by State Law, and the Ombudsman for the centre should be appointed by
the President and for the State by the Governor. In 1964 another influential investigating
Committee on Political Corruption made proposals for special institutions at the national and
state level to deal with allegations of corruptions.

Again in 1966 the Administrative Reform Commission in its interim report recommended a
comprehensive scheme modulled on the Ombudsman institution for citizen's grievances, political
and administrative corruption through receiving allegations from the public against ministers and
officials.

7. On the basis of the recommendations of the Commission, the government prepared the
Lokpal and Lokayuktas Bill 1968 and introduced it in the Parliament but it was lapsed. In 1971
again an attempt was made and the Bill was emerged from the Joint Select Committee of the
Parliament was to come for the consideration of the House in the 1979 monsoon session but
because of the resignation of the then Prime Minister Mr. Desai, the session was adjourned sine
die. Joint Select Committee proposed significant changes in the Lokpal Bill 1977. But this Bill
was also lapsed as the Parliament was dissolved. In 1985 again fresh Bill was introduced in the
Lok Sabha but unfortunately it was again lapsed due to defeat of Government in general election.
Again in 1989 the Lokpal Bill was introduced but could not be passed. Recently Mr. P. V.
Narasihmrao, Prime Minister, declared that his government will again introduce the Lokpal Bill
in the House. The time will tell the fate of this Bill.
79
3

8. However the institution Ombudsman is not working at Central Level in lndia but this
institution is working at State Level very well.

9. The first Lokayukta legislation was passed in 1970 in Orissa in the name of The Orissa
Lokpal and Lokayukt Act 1970. Maharashtra Lokayukta and Uplokayukta Act was passed in
1971 and appointment was made in 1972 of first Lokayukta. The State of Rajashthan came
forward with the Rajasthan Lokayukta and Upalokayukta Act in 1973, Bihar with Bihar
Lokayukta Act, 1974. UttarPradesh enacted Uttar Pradesh Lokayukta and Uplokayukta in 1975,
Karnataka made appointment of Lokayukta in 1979 under Karnataka Lokayukta Ordinance
1979. Himachal Pradesh in 1983, Andhra Pradesh in 1983 and Gujrat enacted acts to make
provision for the appointment of Lokayuktas in 1986. The Assam Lokayukta and Uplokkayukta
Act was passed in 1986. The State of Punjab had expressed its desire for the appointment of this
institution. This institution has become now a cherished institutuion in these State% In some
States the unstinted cooperation extended by the Press for the functioning of the this institution
by giving wide publicity to its proceedings has also been a source of immense strength to this
institution.

10. The institution of the Lok Ayuktas and suitable amendments to the Representation of
People's Act and similar other Centeral and State enactments so as to enable the authorities
concerned to take into considertion for findings, recommendations of the Lok Ayuktas and Upa
Lokayuktas in respect of persons holding elective offices. Since the jurisdiction of Lok Ayuktas
and Upa Lokayuktas in some enactments is restricted to the Ministers and public servants in
office, it is adviseable that exministers and expublic servants concerned, in regard to the action
complained against them, be also expressly brought within their purview. The jurisidiction of
Lok Ayuktas and Up-Lokayuktas should cover not only allegations, corrupt practices, but also
grievances, maladministration as defined in the Centeral Lokpal and Lok Ayukta BiU of 1968. It
is also imprative that a time limit be prescribed for placing the Special and Annual Reports by
Governor before the Houses of Legislature. Such time limit should not under any circumstances
exceed four months from the date of the receipt of report by the Governor or till the Legislatures
meet next, whichever is earlier. The nomencluature of the institution "LOKAYUKTA" in ever
State of " STATE LOKPAL". There should be uninformity throughout lndia in regard to the
service conditions of the Lok Ayuktas and Upa Lokayuktas. There should be no security deposit
for making a complaint before the Lokpall Lokayuktas. The Lokpal/Lokayultas should have
discretion to dispense with the requirements of filling an affidafii with the complaint. There
80
should be a separate independent investigatingagency under the direct control of the
LokpalILokayuktas. However in some states such independent investigating agencice are
working but not in all. Lokpal/Lokayuktas be given the power to sanction search and seizure
within the meaning of the Code of Criminal Procedure.

11. Lokpal and Lokayuktas are Indian nomencluature for the Ombudsman and are meant for
Central and States respectively. The advantages of this institution is appreciable as this system is
simple and cheap. The striking advantage of this institutions is that it can go behind the screen
and investigate fully all that has happened in the case and that he can do this as an independent
and skilled authority. This institution gives the citizens an expert and impartial agent without
personal cost to the complainant, without the tension of adversary litigation and without
requirement of counsel or intervention of those who are highly placed. My humble submission in
this regard is that cordial relation or mutual faith in Ombudsman i. e. Lokpal / Lokayuktas. on
one side and public and government on other side is maintained, the successful working of the
institution can be assured. Hence all necessary efforts should be made at all levels for creating
cordial relations between this institution and all other concerning persons.

Origin of all ombudsman institutions

The word ombudsman is originally Swedish and means "representative". In various


countries around the world the representatives of the people who protect people;s rights are given
a variety of names.
By 2001 the institution of ombudsman on the national level had spread to approximately 110
countries of the world. In many countries there are also regional, city and provincial
ombudsmen, and some countries have ombudsmen on the national, regional and sub-national
level.
Protection of human rights is one of the main purposes of ombudsmen and their offices, and this
purpose is also reflected in the name of the institution.
The roots of the institution of ombudsman stretch back to 1809 in Sweden, when an;
ombudsman for justice; was established. Up until the 20th century the institution did not extend
beyond the Swedish border, but it was then adopted by the other Scandinavian countries
(Finland; 1919, Denmark; 1955 and Norway; 1962).
The institution of ombudsman enjoyed its greatest popularity in the 1960;s, when it was
established on a mass scale by the Commonwealth countries and by other, mainly European
countries.
In the middle of 1983 approximately 21 countries had the institution of ombudsman on the
national level, and 6 had the institution on the provincial/state or regional level.

81
In recent years the wholesale expansion of the institution of Ombudsman has been taking place
as a consequence of the transition of many countries to democracy and to democratic structures
of government.
The transition to democracy accompanied by reforms of governments, has been observed
primarily in Latin America, Central and Eastern Europe and also in parts of Africa and Pacific
Asia. The countries that established their own ombudsmen during this time comprise Argentina,
Costa Rica, Colombia, Guatemala, Peru, Namibia, South Africa, Poland, certain francophone
African countries, Hungary, Lithuania, Slovenia, the Czech Republic, Thailand and the
Philippines.

Building on this, under the principles of the Maastricht Treaty, the European Union established
theEuropean Ombudsman. The first of these was appointed in 1995.

Lokpal and Lokayukta


The Jan Lokpal Bill, also referred to as the Citizen's Ombudsman Bill, is an anti-corruption bill
drafted and drawn up by civil society activists in India seeking the appointment of a Jan Lokpal,
an independent body to investigate corruption cases.[1] This bill also proposes improvements to
the Lokpal and Lokayukta Bill 2011, which was to be passed by Lok Sabha in December 2011.

The Jan Lokpal Bill aims to effectively deter corruption, compensate citizen grievances, and
protect whistle-blowers. The prefix Jan (translation: citizens) signifies that these improvements
include inputs provided by "ordinary citizens" through an activist-driven, non-governmental
public consultation.

The word Lokpal was coined in 1963 by late Mr. L.M. Singhvi, a Member of Parliament during
a debate mechanisms. His son Dr. Abhishek Manu Singhvi was head of the Parliament reviewing
the bill but later resigned from the post after a sex-tape controversy.

In order to draw the attention of the government, a focused campaign "India Against Corruption"
(IAC) was started in 2011. Anna Hazare is the head of civil society and the IAC movement.
Being a foreground for Jan Lokpal campaign. Through these collaborative efforts till August
2011, IAC was able to upload the 23rd version of the Jan Lokpal Bill draft.

Some important features of the proposed bill are:

To establish a central government anti-corruption institution called Lokpal, supported by


Lokayukta at the state level.

As is the case with the Supreme Court of India and Cabinet Secretariat, the Lokpal will be
supervised by the Cabinet Secretary and the Election Commission. As a result, it will be
completely independent of the government and free from ministerial influence in its
investigations.

82
Members will be appointed by judges, Indian Administrative Service officers with a clean
record, private citizens and constitutional authorities through a transparent and participatory
process.

A selection committee will invite short-listed candidates for interviews, the video recordings of
which will thereafter be made public.

Every month on its website, the Lokayukta will publish a list of cases dealt with, brief details of
each, their outcome and any action taken or proposed. It will also publish lists of all cases
received by the Lokayukta during the previous month, cases dealt with and those which are
pending.

Investigations of each case must be completed in one year. Any resulting trials should be
concluded in the following year, giving a total maximum process time of two years.

Losses to the government by a corrupt individual will be recovered at the time of conviction.

Government office-work required by a citizen that is not completed within a prescribed time
period will result in Lokpal imposing financial penalties on those responsible, which will then be
given as compensation to the complainant.

Complaints against any officer of Lokpal will be investigated and completed within one month
and, if found to be substantive, will result in the officer being dismissed within two months.

The existing anti-corruption agencies [CVC], departmental vigilance and the anti-corruption
branch of the [CBI] will be merged into Lokpal which will have complete power authority to
independently investigate and prosecute any officer, judge or politician.

Whistle-blowers who alert the agency to potential corruption cases will also be provided with
protection by it.

Difference between Jan Lokpal Bill and Draft Bill 2010

Jan Lokpal Bill (Citizen's


Draft Lokpal Bill (2010)
Ombudsman Bill)

Lokpal will have powers to Lokpal will have no power to initiate suo motu action or
initiate suo motu action or receive receive complaints of corruption from the general public. It
complaints of corruption from the can only probe complaints forwarded by the Speaker of
general public. the Lok Sabha or the Chairman of the Rajya Sabha.

83
Lokpal will have the power to
Lokpal will only be an Advisory Body with a role limited to
initiate prosecution of anyone
forwarding reports to a "Competent Authority".
found guilty.

Lokpal will have police powers as Lokpal will have no police powers and no ability to register
well as the ability to register FIRs. anFIR or proceed with criminal investigations.

Lokpal and the anti corruption


wing of the CBI will be one The CBI and Lokpal will be unconnected.
independent body.

Punishments will be a minimum of


Punishment for corruption will be a minimum of 6 months
1 year and a maximum of up to life
and a maximum of up to 7 years.
imprisonment.

Comparison SlideShow uploaded by India Against Corruption.

Issue The Jan Lokpal Bill Government's Lokpal Bill

PM can be investigated with PM can be investigated by


Prime Minister permission of seven member Lokpal after she/he vacates
Lokpal bench. office.

Can be investigated, though high


Judiciary is exempt and will
level members may be
Judiciary be covered by a separate
investigated only with permission
"judicial accountability bill".
of a seven member Lokpal bench.

Can be investigated, but their


Can be investigated with
conduct within Parliament,
Conduct of MPs permission of seven member
such as voting, cannot be
Lokpal bench.
investigated.

84
All public servants would be Only senior officers (Group
Lower bureaucracy
included. A) will be covered.

Anti-Corruption wing of The Anti-Corruption wing of the The Anti-Corruption wing of


theCentral Bureau of CBI will be merged into the the CBI cannot be merged
Investigation (CBI) Lokpal. into the Lokpal.

Any person can bring a complaint Any "aggrieved party" can


Removal of Lokpal to the Supreme Court, who can raise a complaint to the
members and Chair then recommend removal of any President, who will refer the
member to the President. matter to the CJI.

Complaints against Lokpal staff


will be handled by independent
Removal of Lokpal staff and boards set-up in each state, Lokpal will conduct inquiries
officers composed of retired bureaucrats, into its own behaviour.
judges, and civil society
members.

All state anti-corruption


Lokayukta and other local/state
agencies would be closed and
Lokayukta anti-corruption agency would
responsibilities taken over by
remain in place.
centralised Lokpal.

Whistleblowers are protected by No protection granted to


Whistleblowerprotection
Lokpal. whistleblowers by Lokpal.

Lokpal can either directly impose


penalties, or refer the matter to the Lokpal can only refer matters
courts. Penalties can include to the courts, not take any
Punishment for corruption removal from office, direct punitive actions.
imprisonment, and recovery of Penalties remain equivalent
assets from those who benefited to those in current laws.
from the corruption.

85
Lokpal can obtain wiretaps (to
Lokpal can issue contempt
make a connection to a telegraph
orders, and has the ability to
or telephone wire in order to
punish those in contempt. No
Investigatory powers obtain information secretly),
authority to obtain wiretaps,
issue rogatory letters, and recruit
issue rogatory letters, or
investigating officers. Cannot
recruit investigating officers.
issue contempt orders.

Court system will handle


Lokpal can issue fines for
matters of frivolous
frivolous complaints (including
False, frivolous and complaints. Courts can give
frivolous complaints against
vexatious complaints 2–5 years imprisonment and
Lokpal itself), with a maximum
fines of Rs 25,000 to
penalty of Rs 100,000.
200,000.

NGOs not within the scope due to NGOs are within the scope
NGOs
their role in exposing corruption. and can be investigated.[25

Campaign for the Jan Lokpal Bill

The first version of the Lokpal Bill drafted by the Government of India headed by United
Progressive Alliance in 2010 was considered ineffective by anti-corruption activists from the
civil society. These activists, under the banner of IAC, came together to draft a citizen's version
of the Lokpal Bill later called the Jan Lokpal. Public awareness drives and protest marches were
carried out to campaign for the bill. However, public support for the Jan Lokpal Bill draft started
gathering steam after Anna Hazare, a Gandhian announced that he would hold an indefinite fast
from 5 April 2011 for the passing of the Lokpal/ Jan Lokpal bill. The government has however
accepted it.

To dissuade Hazare from going on an indefinite hunger strike, the Office of the Prime Minister
directed the personnel and law ministries to see how the views of social activists can be included
in the bill. On 5 April, the National Advisory Council rejected the Lokpal bill drafted by the
government. Union Human Resource Development Minister Kapil Sibal then met social activists
Swami Agnivesh and Arvind Kejriwal on 7 April to find ways to bridge differences over the bill.
However, no consensus could be reached on 7 April owing to several differences of opinion
between the social activists and the Government.

86
Drafting committee
The drafting committee was officially formed on 8 April 2011. It consisted of the following ten
members, including five from the government and five drawn from the civil society.

Member Qualifications and status

P. Chidambaram Finance Minister

Shanti Bhushan Former Minister of Law and Justice, Co-Chairman

Sushilkumar Shinde Minister of Home Affairs

Veerappa Moily Minister of Corporate Affairs

Kapil Sibal Minister for Human Resource Development

Salman Khursid Minister of Law

Anna Hazare Social Activist

Prashant Bhushan Lawyer

N. Santosh Hegde Former Lokayukta (Karnataka) and Supreme Court Justice

Arvind Kejriwal RTI Activist.

The Government's handling of the formation of the draft committee, involving the civil society in
preparation of the draft Lokpal bill, was criticized by various political parties including Bharatiya
Janata Party, Biju Janata Dal, Telugu Desam Party, All India Anna Dravida Munnetra
Kazhagam, Communist Party of India (Marxist), Rashtriya Janata Dal, Janata Dal (U) and
Samajwadi Party.

87
The committee failed to agree on the terms of a compromise bill and the government introduced
its own version of the bill in the Parliament in August 2011.

Logjam of Lokpal and Lokayukta Bill 2011


On 27 December 2011, Lok Sabha Parliament winter session passed controversial Lokpal Bill
under title of Lokpal and Lokayukta Bill 2011, but without constitutional status. Before passing
this bill it was introduced in Lok Sabha with key amendments moved. The 10 hour house debate,
number of opposition parties claimed introduced bill is weak and wanted it withdrawn. Key
amendments that were discussed but defeated were following:

 Including corporates, media and NGOs receiving donations


 Bringing CBI under the purview of Lokpal

Amendments that the house agreed upon were:

 Keeping the defence forces and coast guard personnel out of the purview of the anti-graft
ombudsman
 Increasing the exemption time of former MPs from five to seven years

Team Anna rejected the proposed bill describing it as "anti-people and dangerous" even before
theLok Sabha gave its assent. The key notes Team Anna made about rejection were:

 Government will have all the control over Lokpal as it will have powers to appoint and
remove members at its will.
 Only 10 per cent political leaders are covered by this Bill
 Bill was also covering temples, mosques and churches
 Bill was offering favor to corruption accused by offering them free lawyer service.
 Bill was also unclear about handling corruption within Lokpal office.
 Only five per cent of employees are in its ambit, as Class C & D officers were not included.
Team Anna was also disappointed over following inherent exclusions within tabled government
bill.

 Central Bureau of Investigation (CBI) should be merged with the Lokpal, and the anti-
corruption bureaus and the Vigilance Departments of the State governments with the
Lokayuktas.
 The Lokpal and the Lokayuktas should have their own investigative wings with exclusive
jurisdiction over cases filed under the Prevention of Corruption Act.
 The Lokpal should have administrative and financial control over the CBI, and the
appointment of the CBI Director should be independent of any political control.
 The jurisdiction of the Lokpal and the Lokayukta should cover Class C and D officers
directly.

88
This bill was then presented in Rajya Sabha where it hit log jam again.

Criticisms of the Jan Lokpal Bill


Naïve approach
The bill has been criticised as being naïve in its approach to combating corruption. According to
Pratap Bhanu Mehta, President of the Center for Policy Research Delhi, the bill "is premised on
an institutional imagination that is at best naïve; at worst subversive of representative
democracy". The very concept of a Lokpal concept has received criticism from Human Resource
Developmentminister Kapil Sibal in that it will lack accountability, be oppressive and
undemocratic.
Extra-constitutional
Kejriwal rejects the claim of Lokpal being extra-constitutional with the explanation that the body
will only investigate corruption offences and submit a charge sheet which would then tried and
prosecuted through trial courts and higher courts, and that other bodies with equivalent powers in
other matters exist. The proposed bill also lists clear provisions for the Supreme Court to abolish
the Lokpal.
Despite these clarifications, critics feel that the exact judicial powers of Lokpal are rather unclear
in comparison with its investigative powers. The bill requires "...members of Lokpal and the
officers in investigation wing of Lokpal shall be deemed to be police officers". Although some
supporters have denied any judicial powers of Lokpal, the government and some critics have
recognised Lokpal to have quasi-judicial powers.
The bill also states that "Lokpal shall have, and exercise the same jurisdiction powers and
authority in respect of contempt of itself as a High court has and may exercise, and, for this
purpose, the provisions of the Contempt of Courts Act, 1971 (Central Act 70 of 1971) shall have
the effect subject to the modification that the references therein to the High Court shall be
construed as including a reference to the Lokpal." Review of proceedings and decisions by
Lokpal is prevented in the bill by the statement "...no proceedings or decision of the Lokpal shall
be liable to be challenged, reviewed, quashed or called in question in any court of ordinary Civil
Jurisdiction.". As a result, how the trials will be conducted is unclear in the bill, although the bill
outlines requiring judges for special courts, presumably to conduct trial that should be completed
within one year. The critics hence express concern that, without judicial review, Lokpal could
potentially become an extra-constitutional body with investigative and judicial powers whose
decisions cannot be reviewed in regular courts.
Scope
The matter of whether the Indian Prime Minister and higher judiciary should or should not be
prosecutable by the Lokpal remains as one of the major issues of dispute. Anna's own nominee
for co-chairing the joint panel Justice Verma, the former Chief Justice of the Supreme Court, has
expressed his constitutional objections for including the Prime Minister and higher judiciary
under Lokpal. According to him, "this would foul with the basic structure of the constitution

89
Lokayukta

The Lokayukta (also Lok Ayukta) is an anti-corruption ombudsman organization in the Indian
states.

The Administrative Reforms Commission (ARC) headed by Morarji Desai submitted a special
interim report on "Problems of Redressal of Citizen's Grievances" in 1966. In this report, the
ARC recommended the setting up of two special authorities designated as 'Lokpal' and
'Lokayukta' for the redressal of citizens' grievances.

The LokAyukta, along with the Income Tax Department and the Anti Corruption Bureau, mainly
helps people bring corruption amongst the politicians and officers in the government service to
public attention. Many acts of the LokAyukta have not resulted in criminal or other
consequences for those charged.

History:

Maharashtra was the first state to introduce the institution of Lokayukta through The
Maharashtra Lokayukta and Upa-Lokayuktas Act in 1971. This was followed by similar acts
being enacted by states of Rajasthan, Bihar, Uttar Pradesh, Karnataka, Madhya Pradesh, Andhra
Pradesh, Gujarat and Delhi.

Maharashtra Lokayukta is considered as weak due to lack of powers, adequate staff, funds and
no independent investigating agency. Karnataka Lokayukta is considered as the most powerful
Lokayukta in the country

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 comprising the state vigilance commissioner and a jurist or an eminent
administrator as other members.

Reforms

In November 2012, after conclusion of the 11th All India Lokayukta Conference, as many as 16
Lokayuktas sent many recommendations to the Govt of India. The recommendations were:

 Make Lokayukta the nodal agency for receiving all corruption complaints.
 Accord Lokayukta jurisdiction over State-level probe agencies.
 Bring bureaucrats under the ambit of the Lokayuktas.
 Accord powers of search and seizure and powers to initiate contempt proceedings.

90
 Provide Lokayukta administrative and financial autonomy.
 Bring Non-Governmental Organisations (NGO) funded by the government under
Lokayukta's jurisdiction.

Role of Lokayukta in combating Corruption and Mal-administation and measures for


strengthening these Institutions

Lokayukta investigates cases of corruption, where substantiated, recommend action. He is a great


check on corruption, brings about transparency in the system, makes administrative machinery
citizen friendly. His functions largely depend upon jurisdiction vested in him and facilities
provided for taking cognizance of citizens’ grievances promptly, dexterously and expeditiously
through simple, informal mechanism devoid of technicalities.
Corruption is internationally recognized a major problem, capable of endangering stability and
security of society, threatening social, economic and political development and undermining the
values of democracy and morality. It has assumed alarming proportions resultantly public funds
going into private hands leading to enrichment of bribe givers and bribe takers. Ultimate result
is, as said by former Prime Minister Rajiv Gandhi, only 15 paise, out of rupee reach the lowest
level of population. Corruption, inefficiency, delays and insensitivity to people’s grievances can
be identified key problems besetting the nation. Citizens bitterly feel the distance that separates
them from the decision makers. This distance, makes them feel abandoned or even rejected and
they eventually lose interest in public matters and become marginalized. Corruption does not
mean only taking bribe. It is used in a much larger sense, “Conduct”, which is morally unsound
and debased. It includes conduct which is blame-worthy or improper (See Dr. S. Dutt Vs State of
UP AIR 1966 SC 523), B. Gupta Vs The King ILR (1949) 2 CAL 440). Corruption and mal-
administration are like twin sisters each acts in complement to the other. Corruption has ruined
Empires. After completion of his book, “The Decline of Rome Empire” Edward Gibbon, the
Great Historian, Writer and Philosopher was asked to reply in one word the reason for the
decline Roman Empire, he remarked “Corruption.” Corruption in a civilized society, is described
“disease like cancer.&rdquo, which if not detected in time is sure to malignise the polity of a
country leading to disastrous consequences.” Pylee points out:

"Corruption at the bureaucratic level operated like a subterranean monster, aiding, abetting and
colluding with the political bosses. Service to the public has long given way to careerism with a
work culture of 19th century aristocracy dealing with the citizens as ‘subjects.’ Burke cautioned,
“Among people, generally corrupt, liberty cannot last long".

Supreme Court also said that corruption in a civilized society is a disease like cancer and if not
detected in time, will malignise the polity of the country leading to disastrous consequence. It is
like plague, it is contagious and if not controlled, spreads like a fire in a jungle. Its virus is
compared with HIV leading to AIDS, being incurable (See State of MP & Others Vs Ram Singh
(2000) 5 SCC 88, and State of Andhra Pradesh Vs V. Vasudeva Rao 2003 (9) Scale 569.
Corruption in public life is a gross violation of human rights. It is anti-people, anti-development
and anti-national. Rampant corruption is major national malady. It is the single big factor
retarding the progress of our country, responsible for millions to live below poverty line despite

91
astronomical amount being spent on development. It is garbage which is required to be removed
otherwise it would hamper development of the country and bring bad name to the nation.
Supreme Court observed in Lucknow Development Authority Vs M.K. Gupta (AIR 1994 SC
787):

"...Harassment of a common man by public authorities is socially abhorring and legally


impermissible. It may harm him personally but the injury to society is far more grieveous. Crime
and corruption thrive and prosper in the society due to lack of public resistance. Nothing is more
damaging than the feeling of helplessness. An ordinary citizen instead of complaining and
fighting succumbs to the pressure of undesirable functioning in offices instead of standing
against it...."

An honest man is the noblest wok of God – Pope. When men are pure, laws are useless; when
men are corrupt, laws are broken – Benjamin Disraeli. Citizens realize that corruption is
dominant factor keeping India a poor country, therefore, delaying march towards prosperity. A
citizen faces corruption practically at every level and every sector of life. Corruption is anti-
national, anti-poor, anti-economic development and anti-life. Rampant corruption is a major
national malady. The Central Government as well as the State Governments are anxious to
eradicate it because there is realization that it is a great hurdle on the path of progress because
out of the huge plan outlays, very little goes to the people whose upliftment is essential for
ushering the egalitarian society. This apart, it stalls the pace of development in other sectors too.
It is, therefore, considered necessary to eradicate corruption with an iron hand otherwise march
towards progress and prosperity would be delayed considerably. Why can’t it be eradicated when
the number of persons indulging in corruption is hardly two percent of the total population of the
country.

In its widest connotation corruption includes improper and selfish exercise of power and
influence attached to a public office due to the special position one occupies in public life.
Developing countries like India, face this problem, as a result, it assumes status of mega
industry, where some people thrive at the cost of public exchequer resultantly imparting the
developmental activities of the State. The United Nations Convention against corruption (2003)
signed/ratified by the member countries to deal firmly with corruption. Secretary General
stressed that corruption violates the socio-economic human rights of the people especially in the
developing countries because funds meant for roads, wells, hospital, schools and other basic
necessities are siphoned off and deposited in safe havens abroad.
Inaugurating two day National Seminar on “Access to Justice”, organized by the Supreme Court
Advocates-on-Record Association, in association with the United Nations Development
Programme, His Excellency The President of India, Dr. A.P.J. Abdul Kalam said that with the
rising all-round awareness and a demand for clean and corruption-free public life, the burning
issue of probity in public life was increasingly coming into focus.
.Conduct and behavior in public life are, like never before, under very close scrutiny. It was
essential that the three pillars of democracy-Legislature, Judiciary and Executive-are strong in
structure, pure in form and un-corrupted and un-blemished in conduct.

The President made it clear that:

92
If we cannot make India corruption free, then the vision of making the nation developed by 2020
would remain a dream"

Consequently, understanding the menace of corruption and urgent necessity to deal with it in the
context of existing scenario,public outcry, warning by transparency International, other NGOs
and media, Government is attempting to eradicate it by taking steps for sometime past. The first
Administrative Reforms Commission, headed by Late Shri Morarji Desai studied the causes for
the steep deterioration in all areas of administration, Central and States and recommended
remedial measures. In its report (1966) suggested, among other things, appointment of Lokpal at
the Centre and Lokayukta at the State. Second Administrative Reforms Commission, headed by
Shri Veerappa Moily, deliberated extensively for elimination of corruption in the administration
and the strengthening of the Lokpal and the Lokayukta in two day National Colloquium on
“Ethics in Governance: Moving from Rhetoric to Results” September ½, 2006 at the National
Judicial Academy, Bhopal. Mahatma Gandhi, father of the Nation, had understood the gathering
crisis of corruption and prophesized that the public would lead in the forefront in exposing
corrupt practices and taking to task those who were involved in them. He wrote in Young India
in 1928:

"Corruption will be out one day, however, much one may try to conceal it; and the public can, as
its right and duty, in every case of justifiable suspicion, call its servants to strict account, dismiss
them, sue them, in a law court or appoint an arbitrator or inspector to scrutinize their conduct, as
it likes."He also said "On this earth, there is enough for everyone’s need but not for their greed.

Allah Curses The Giver Of Bribes And You Shall Not Take Bribe Blinds
The ReceiverOf Bribes And The Eyes Of The Wise And
ThePerson Who Paves The Way For Both Subverts The Cause Of The Righteous

"> Institution of Lokpal has not as yet been created at the Centre although efforts have been
made since, 1959 while Institution of Lokayuktas/Lokpal has been established by many States
through State Legislations. They provide for inquiry/investigation into complaints of corruption
against public servants. He protects Citizens’ Right against mal-administration, corruption,
delay, inefficiency, non-transparency, abuse of position, improper conduct etc. The procedure to
be followed is informal and inexpensive, technicalities do not come in way. Complaint is
supported by affidavit, making out case for inquiry. He is representative of Legislature, powerful
friend of citizens to act against officials action, inaction or corruption. But not anti-
administration, rather helps in humanizing relations between the public and the administration, a
step forward in establishing an ‘Open Government’ securing respect for the rule of law, an
educator aiming at propagating the prevention of corruption, inefficiency and mal-administration
in governance. He is, therefore, a check on corruption.

93