Understanding Public Law Fundamentals

SCHOOL OF LAW
RENAISSANCE UNIVERSITY, INDORE (M.P)
UNIT 1
INTRODUCTION
 Meaning and definition of Public Law

 Concept of Public Law
 Areas of public law
 Importance of public law
 Globalization of Comparative Public Law
 Constitutionalism and Rule of Law
“No law is stronger than is the public sentiment where it is to

be enforced” -Abraham Lincoln
MEANING OF PUBLIC LAW
Public law refers to the relationship between individuals and the government
and dealing with the structure and operation of the government. It affects society as
a whole. It is sub-divided into several branches, including constitutional,
administrative and statutory law, which resolve conflicts between individuals and
government. Public law was originally defined by the Roman as Res publica – i.e.
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‘the public thing,’ or in the public interest and common good, and based on the
differentiation between the state and the government.
Public bodies, such as central and local government, have to obey the law. The
type of law governing the conduct of public bodies is known as ‘public
law’. Public law principles mean that public bodies act lawfully, rationally, fairly,
and compatibly with the human rights of those affected by their actions. Public law
comprises constitutional law, administrative law, tax law and criminal law,[1] as
well as all procedural law. (Laws concerning relationships between individuals
belong to private law.)
The relationships public law governs are asymmetric and in equalized.

Government bodies (central or local) can make decisions about the rights of
persons. 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 [by whom?] 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.
CONCEPT OF PUBLIC LAW
Under the Romans, res publica was an alternative to the traditional ruling systems,
where the power was vested entirely in the hands of a single person. Rome in the
1st century B.C.E. had no written constitution, but the republic used unwritten
guidelines and principles passed down mainly through precedent.
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Res publica, public law, as the thing of people, was first defined by the Roman
senator Cicero. Res publica usually refers to a thing that is not considered to be
privately owned (res private) but which is held in common by many people. A park
or garden in the city or Rome could either be “private property,” or managed by
the state, in which case it would be res publica. Initially, Rome’s public law was
closely related to religion, but over time this connection weakened.
After the Roman Empire, the concept of public law was adopted by monarchies
and republics. In monarchies, public law represented the power of monarch, while
in republics public law was a responsibility of the people.
In France, the concept of public law was represented by the idea of the state
(I’Etat). The French state comprises the community of permanent interest of the
nation, rather than a tool for domination. Various concepts such as the public
interest derive from the French idea of public law.
In Germany, public law developed around the concept of the prince state
(Furstenstaat). This personified idea of the state had a great influence on the
development of public law in general. The idea of the Prince State lost its
popularity in the 19th century and in the 20th century it remained only in theory,
for example in the works of Hans Kelsen.
Unlike continental Europe, England did not embrace the idea of res publica.
Instead, the English and Scottish legal systems are based on common law, which
evolved overtime based on precedent, with lawyers looking to previous court
rulings upon which to base their decisions. According to some researchers, the rule
of law created by courts tends to protect private interests and is therefore is the
opposite of public law.
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EVOLUTION OF PUBLIC LAW
Magna Carta – the

liberties charter The petition of The Bill of Rights
from the Rights 1689
13th century
French declaration Constitution of

1789 India 1949
AREAS OF PUBLIC LAW
Public law is that area of constitutional, Administrative and Criminal law that
focuses on the organization of government, and the relation between state and the
citizens, the responsibilities of government officials and the relations between the
sister states.
1. Constitutional Law
“We have a government of limited power under the constitution, and we have got
to work out our problem on the basis of law.” -William Howard Taft
Constitutional law defines the relationship between various branches of

government, as well as between federal and provincial governments; it also limits
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the exercise of governmental power over individuals through the protection of
human rights and fundamental freedoms
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.
2. Administrative Law:
Administrative law[2] deals with the actions and operations of government. It

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.
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.
3. Criminal Law:
Criminal law deals with the crimes and their punishment. It 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
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differs from civil law in that civil actions are disputes between two parties that are
not of significant public concern.
IMPORTANCE OF PUBLIC LAW:
Public law is important because of the unequal relationship between the

government and the public. The government is the only body that can make
decisions on the rights of individuals and they must act within the law. A citizen
can ask for judicial review if they are unhappy with a decision of an authoritative
body.
Lawyers who are concerned with public law can specialise in various areas of law
including constitutional/administrative law, tax law and criminal law. These areas
of law are slightly different.
For example: if you worked in constitutional/administrative law, you could be

working alongside the NHS, local council or other governmental bodies.
Criminal lawyers work on all aspects of a case including investigation, liaising

with police and appeals. There’s usually a lot of paperwork involved with criminal
law.
CONSTITUTIONALISM & RULE OF LAW
1. Meaning of Constitutionalism
For genuine democracies, constitutions consist of overarching arrangements that

determine the political, legal and social structures by which society is to be
governed. Constitutional provisions are therefore considered to be paramount or
fundamental law. Under these circumstances, if constitutional law itself is
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inadequate, the nature of democracy and rule of law within a country is affected.
The structure of modern nations has been shaped with government being divided
into executive, legislative and judicial bodies, with the commonly accepted notion
that these bodies and their powers must be separated. Of course, the separation of
powers does not mean these bodies function alone, rather they work
interdependently, but maintain their autonomy. Other tenets include the idea of
limited government and the supremacy of law. Together, these can be termed the
concept of constitutionalism. In other words, constitutionalism is the idea that
government should be limited in its powers and that its authority depends on its
observation of these limitations.
2. Meaning of Rule of Law
Dicey is one of the well known jurists of England and he has written a famous
book “Law of the Constitution”. One should know the difference between
administrative law and the rule of law. People who are in government job have
different law from ordinary citizens and the rule of law is equal for everyone
whether he is Prime minister of India or a normal clerk working in an office. The
same law will be applicable to both of them, no discrimination will be done under
the rule of law and rule of law is supreme in nature.
The doctrine of Rule of law has 3 meaning in dicey book.
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Supremacy of law.
Equality before
the law.
The predominance
of a legal spirit.
According to Plato the meaning of rule of law is that it is supreme in nature and
nobody is above the law.
According to Aristotle has written that law should be the final sovereign of the
state.
According to Sir Edward Coke “Rule of Law” means the absence of arbitrary
power on the part of Government.
3. Constitutionalism And Rule of Law
Rule of law refers to the supremacy of law: that society is governed by law and this
law applies equally to all persons, including government and state officials.
Following basic principles of constitutionalism, common institutional provisions
used to maintain the rule of law include the separation of powers, judicial review,
the prohibition of retroactive legislation and habeas corpus. Genuine
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constitutionalism therefore provides a minimal guarantee of the justice of both the
content and the form of law. On the other hand, constitutionalism is safeguarded by
the rule of law. Only when the supremacy of the rule of law is established, can
supremacy of the constitution exist. Constitutionalism additionally requires
effective laws and their enforcement to provide structure to its framework.
CHECK YOUR PROGRESS
Ques 1. Define the meaning of public law and its

importance?
Ques 2. Difference between public and private law?
Ques 3. What do you mean by constitutionalism?
Ques 4. Constitutionalism & rule of law? Discuss.
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UNIT-2
TOOLS OF COMPARATIVE PUBLIC LAW
1. Constitutional Law – Forms of Government, Separation of
Power
2. Legislative Mechanism – Supremacy of Legislature
3. Typology of Federalism – USA, India
FORMS OF GOVERNMENT
Samuel Finer provides four distinct meanings of the term “government”. Firstly,
every government is measured according to command or leadership it has over
others. Secondly, the government is a condition of the ordered rule, thirdly, it
comprises of a group of people who are responsible and allotted a duty to govern.
Fourthly, it refers to a manner or method in which a distinct society is to be
ruled..
Government has been referred to as a body of persons that constitute
the national executive. In furtherance to this, the focus has been laid that the
government should be considered as a process which is institutionalized, that
provides the room to govern. The composition of the government is generally
comprehended as a mechanism through which “ordered rule” is preserved.
The Government is considered as an instrument for making and enforcing
compiled decisions by means of public actions for the society in large. The
definition suggests various interrelated functional roles: supervising the system of
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the government, synchronization in relation to public affairs, formulating
decisions and administering society, implementation and coordinated policy
formulations, deploying leadership
FORM OF GOVERNMENT
FORMS OF
GOVERNMENT
NON-
DEMOCRATIC PARLIAMENTARY
DEMOCRATIC
1. NON- DEMOCRATIC FORM OF GOVERNMENT
 Monarchy
A monarchy is a form of government led by an individual who holds the position

for life, having inherited the position, and who passes it on to a relative, usually a
son or daughter. Today, most monarchs act as head of state, filling a ceremonial
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role with little or no power regarding the actual governing of the country. A
constitutional monarchy is a country which has a written constitution that sets
out the rules for how the country will be governed and the rights and
responsibilities of its people and has a monarch as head of state.
a. Absolute monarchy, in which the monarch has very few or no legal

limitations in political matters; the use of political power was considered to be
limited by the presence of an implicit customary law and by God’s will, it was
considered to be formulated by the nature of law.
b. Constitutional monarchies, here the monarch preserves a distinct legal and
ceremonial role but exercises limited or no political power. The term
‘constitutional monarchy’ seems to be acknowledged initially by a French writer,
W. Dupre, who wrote in 1801 of ‘la monarchic constitutionnelle’ and ‘un roi
constitutionnel’. Example: Constitutional Monarchy in the United Kingdom,
where Queen Elizabeth II and the royal family do not make legislation that
governs the people but possess ceremonial roles.
 Oligarchy form of Government is when the power is rested upon a few
individuals. These people can be differentiated by royalty, family ties,
wealth, education etc. A few prominent families control the state which
carries on their influence from one generation to the latter. Aristocracy,
meritocracy, plutocracy, technocracy, and theocracy etc are other political
structures associated with oligarchy. A few examples of plutocracies would
be the Roman Republic, some city-states in Ancient Greece.
 Theocracy is when the exercise of political power is done by a church or
parallel religious leadership (not necessarily) because the aim of the state
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would be to direct the population towards God, where God is considered as
the “head of the state” theoretically.
 Authoritarian government is when power is sustained and centralized
by elimination and repression of any potential competitions. Autocracy is a
system where the complete power is vested in the hands of one person, and
the decisions are not subjected to any legal discretion or regulatory
mechanisms of control.
The extreme version of authoritarianism is Totalitarianism. Totalitarianism form
of government is when the state has complete power over the society and
authority towards various public and private aspects. In “authoritarian regime”
the political authority and power is monopolized by a single person- a sole
‘dictator’ or a committee or by a group of political elites.
II. Democratic and Republican Form of Government
A. Democratic Government- In a democracy, the leaders of the country are

elected by the popular vote of the citizens of the country. It protects the interest
of the citizens of the country, reduces monopoly of authority, keeps a check
hence, ensures responsibility on the part of the government along with stable
administration and fosters equality.
New Zealand is considered to have one of the oldest and most enduring world
democracies.
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B. Republican Government- The power of the government is held by the citizen of
the country, who entrust the leaders with the power through electing their
representatives who serve their interests and who they think fit and efficient. The
core meaning of a Republican Government revolves around majority rule,
Sovereignty and the people’s right to alter or abolish.
The most significant distinction between Democracy and Republicanism is that
in a republic people have inherent rights that cannot be voted away by the
majority of voters which is deep-rooted in the laws whereas, in a pure democracy,
power/rights are solely in the hands of the majority.
The United States of America has a representative democracy, where the people
choose their representatives who determine the issues of the day with regards to
other branches of the government, according to the law. The system in the US is
also known as a “constitutional republic”.
C. Parliamentary form of Government- It was established in 1918 and developed

over the twentieth century. A Parliamentary system of government refers to “a
system of government having the real executive power vested in a cabinet
composed of members of the legislature who are individually and collectively
responsible to the legislature.”
India follows this system of governance, here the citizens of the country, make an
active participation by electing representatives for the legislative Parliament.
Jawaharlal Nehru, who headed the Constitutional Committee put forth a few
merits of parliamentary system and stated- “We prize the parliamentary form of
government because it is a peaceful method of dealing with problems. It is a
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method of argument, discussion and decision, and of accepting that decision, even
though one may not agree with it.”
The Parliament is accountable for formulating decisions and laws for the state and
also directly liable to the people of that state. Upon the completion of the
election, the government is formed by the greatest represented party. The leader
would be responsible to carry out the executive functions and become the Prime
Minister, along with a few members of the parliament who would be appointed
to form the Cabinet of the Prime Minister.
The parties who lose in the elections comprise the minority and becomes
the opposition party in the Parliament. These parties scrutinize and challenge the
decisions taken by the party in power. In cases where the Parliament loses the
confidence in the Prime Minister, the Parliament can dissolve the Prime Minister
from his power.
UK has a bicameral legislature, which signifies two Chambers in the Parliament

which are- The House of Commons and the House of Lords. Both the legislative
bodies create laws, checks and confront the government and depict views.
Features of Parliamentary form of government

 In Parliamentary form of government, the head of the state and head of the
government is distinct. The head of the state is mostly the
president/monarch who is only a formal head. The significant power of the
government is vested upon the Prime Minister.
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 There can exist two houses (bicameral) or one house (unicameral).
 The council of ministers, are together responsible to the Parliament. The
lower house can dismiss the ruling government, by passing a no-confidence
motion.
 The proceedings of the cabinet are mostly kept in secrecy and not disclosed
to the public. This kind of system is characterized with the majority party rule
as well, but a hundred per cent majority cannot be present in any
government, and the parliament comprises of opposition.
Advantages of Parliamentary form of government
 Enabling effective coordination between Legislature and Executive: The

legislature envisages the executive. The government has the benefit of
enjoying the support of the majority members in the lower house; hence the
disputes and disagreements are reduced. Passing legislation becomes an
easier task along with the implementation of it.
 Representation is Diverse: The democracy enables representation of various
groups. Scope of diversity increases because diverse ethnic, linguistic, racial
and various ideological groups convey their views and help in policy and law-
making.
 Authoritarianism is prevented: The likelihood of authoritarianism is reduced
because all the powers are not entrusted to a single person; rather it is
delegated to the council of ministers. The parliament can pass a no-
confidence motion which can remove the government.
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Disadvantages of Parliamentary form of government
 No separation of powers: There is no specific separation of powers, the

executive cannot be held responsible always by the legislature. This is true in
case the government has a majority in the house. In addition to this, the
legislators cannot perform their free will and according to their
understanding and opinions, due to the presence of anti-defection rules.
They need to go according to the party whip.
 Unqualified legislators: The legislators are mostly incompetent and
unqualified to legislate. The system thereby, is creating legislators who
mostly possess the intention to enter the executive solely.
 Party politics: Party politics is very evident in the parliamentary form of
government; the politicians become more biased in working towards
national interest.
III. Presidential Form of Government
In this system, the head of the government is considered as the head of the state.
Presidential form of governance is in contrast to the Parliamentary form of
government; the President is considered as the Chief Executive and is elected
directly by the people or by means of an Electoral College system.
In the presidential system, the president or head of the government is elected for
a fixed term of office and cannot be removed except in cases of
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impeachment. One significant feature in this system is that the executive is not
responsible to the legislature. Here the three branches of government
(legislature, executive and judiciary) exist distinctly. The President implements
the laws made by the legislature and they are to supervise and exercise the
judicial duties.
A. Presidential form of Government in the USA

The United States of America can be a classic example of a Presidential form of
Government. The President is considered as both the head of the government
and of the State. The President is elected differently from the legislature and may
or may not be of the legislature’s majority political party. The Cabinet of the
President contains individuals who are not permitted to become members of
Congress at the same time.
Features of Presidential form of government

 The presidential system has a characteristic feature of the sole executive
concept. The President is the head of the executive and also the head of the
state. He does not possess nominal powers. The President is directly elected
by either the people or the Electoral College.
 The President along with his cabinet is not the members of the legislature
nor are they answerable or accountable to the legislature. The Separation
of power is clear, the three branches are distinct in it and members of a
particular branch cannot be the member of the other branch.
 President possesses the power to grant a pardon or commute the sentences
awarded to the criminals.
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 The President has a fixed tenure and cannot be removed by no-confidence
passed in the legislature, except in impeachment cases where a grave
unconstitutional act has been performed.
Advantages of Presidential form of government

 Three Distinct Branches: In Presidential form of government, the distinct
segments or branches made in the government enable to preserve checks
and balances.
 Direct election of President: The President is directly elected by the citizens;
hence this establishes increased legitimacy than a President who has been
appointed indirectly.
 Independent decision-making: The restriction for the President is lessened in
this system of government; hence the decisions can be taken more
independently. This instigates quick decision making.
Disadvantages of Presidential form of government

 High chances of misuse of power: In the Presidential form of government,
the power is vested in the hands of a single person who is the President; this
can lead to misuse of power. In addition to this, the President is not in
control of the legislature.
 Conflicts: Conflicts can arise between the legislature and executive due to
the separation of power and this might lead to deadlock. The legislature can
reject the policies of the executives, and the executive may not be in
agreement with the Acts passed by the legislature.
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 Chances of forming an incompetent cabinet: President is given the power to
establish his own cabinet according to his choice in order to form the
government. The President may exploit this power and choose incompetent
people which can influence the political functioning of the state.
Conclusion
Most of the western ideologies focus on the fact, that the democratic form of
governance serves the purpose of fulfilling and addressing the needs of the
citizens and hence is considered the most appropriate form of governance. The
Democracy in India, for example, is also considered to be one of the prime
features for good governance in India.
Constitutional safeguards for every individual with regards to electing

government at different levels in a fair manner, with proper participation by all
the sections of the society is one of its basic features. This would be considered as
a principal requirement for a legitimate government and its responsibility to the
electorate.
However, ‘good’ governance is the ability of the government to plan through

and correspond to the policies, laws, projects etc and whether there is proper
and effective implementation, along with addressing the needs of the citizens.
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SEPARATION OF POWER
“If the legislative and executive authorities are one institution, there will be
no freedom. There won’t be any freedom anyway if the judiciary body is
separated from the legislature and executive”- Charles de Montesquieu
The separation of powers is imitable for the administration of federative and

democratic states. Under this rule the state is divided into three different
branches- legislative, executive and judiciary each having different independent
power and responsibility on them so that one branch may not interfere with the
working of the others two branches. Basically, it is the rule which every state
government should follow in order to enact, implement the law, apply to specific
case appropriately. If this principle is not followed then there will be more
chances of misuse of power and corruption If this doctrine is followed then there
will be less chance of enacting a tyrannical law as they will know that it will be
checked by another branch. It aims at the strict demarcation of power and tries
to bring the exclusiveness in the functioning of each organ.
Background
The term “separation of powers” or “trias –politica” was initiated by Charles

de Montesquieu. For the very first time, it was accepted by Greece and then it
was widespread use by the Roman Republic as the Constitution of the Roman
Republic. Its root is traceable in Aristotle and Plato when this doctrine became
the segment of their marvels. In 16th and 17th-century British politician Locke
and Justice Bodin, a French philosopher also expressed their opinion regarding
this doctrine. Montesquieu was the first one who articulated this principle
scientifically, accurately and systemically n his book “Esprit des Lois” (The
Spirit Of Laws) which was published in the year 1785.
Meaning
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The definition of separation of power is given by different authors. But in

general, the meaning of separation of power can be categorized into three
features:
 Person forming a part of on organs should not form the part of other
organs.
 One organ should not interfere with the functioning of the other
organs.
 One organ should not exercise the function belonging to another organ.
The separation of power is based on the concept of trias politica. This principle
visualizes a tripartite system where the powers are delegated and distributed
among three organs outlining their jurisdiction each.
Three Tier Machinery of State Government
It is impossible for any of the organs to perform all the functions systematically
and appropriately. So for the proper functioning of the powers, the powers are
distributed among the legislature, executive and judiciary. Now let’s go into the
further details of the functioning of each organ.
 Legislative
The main function of the legislature is to enact a law. Enacting a law expresses
the will of the State and it also acts as the wain to the autonomy of the State. It
is the basis for the functioning of executive and judiciary. It is spotted as the
first place among the three organs because until and unless the law is framed
the functioning of implementing and applying the law can be exercised. The
judiciary act as the advisory body which means that it can give the suggestions
to the legislature about the framing of new laws and amendment of certain
legislation but cannot function it.
 Executive
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It is the organs which are responsible for implementing, carrying out or

enforcing the will of the state as explicit by the constituent assembly and the
legislature. The executive is the administrative head of the government. It is
called as the mainspring of the government because if the executive crack-up,
the government exhaust as it gets imbalanced. In the limited sense, executive
includes head of the minister, advisors, departmental head and his ministers.
 Judiciary
It refers to those public officers whose responsibility is to apply the law framed
by the legislature to individual cases by taking into consideration the principle of
natural justice, fairness.
Significance
As it is a very well known fact that whenever a large power is given in the hand
of any administering authority there are higher chances of maladministration,
corruption and misuse of power. This doctrine helps prevent the abuse of
power. This doctrine protects the individual from the arbitrary rule. The
government is the violator and also protects individual liberty.
Summarily, the importance can be encapsulated in the following points:
 Ending the autocracy, it protects the liberty of the individual.

 It not only safeguards the liberty of the individual but also maintains
the efficiency of the administration.
 Focus on the requirement of independence of the judiciary
 Prevent the legislature from enacting an arbitrary rule.
Constitutional Status of Separation of power in India
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Going through the provisions of Constitution of India one may be ready to say
that it has been accepted in India. Under the Indian Constitution:
Parliament ( Lok Sabha and Rajya Sabha)

Legislature
State legislative bodies
At the central level- President

Executive
At the state level- Governor
Judiciary Supreme Court, High Court and all other subordinate courts
The Parliament is competent enough to make any law subject to the conditions
of Constitution and there are no restrictions on its law-making powers. The
president power and functions are given in the Constitution itself (Article 62
to Article 72). The judiciary is self –dependent in its field and there is no
obstruction with its judicial functions either by Legislature or the Executive. The
High Court under Article 226 and Article 227 and Supreme Court
under Article 32 and Article 136 of Constitution are given the power of
judicial review and any law passed by the legislature can be declared void by
the judiciary if it is inconsistent with Fundamental Rights (Article 13). By going
through such provisions many jurists are of opinion that doctrine of separation
of powers is accepted in India.
Before looking into the case laws, let us understand what the meaning of the
doctrine of separation of power is in a strict and broad sense.
The doctrine of separation of power in a rigid sense means that when there is
a proper distinction between three organs and their functions and also there
should be a system of check and balance.
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In the case of I.C Golakhnath vs State of Punjab, the Constitution brings

in actuality the distinct constitutional entities i.e namely, the Union territories,
Union and State. It also has three major instruments namely, judiciary,
executive and legislature. It demarcates their jurisdiction minutely and expects
them to exercise their function without interfering with others functions. They
should function within their scope.
If we go through the constitutional provision, we can find that the doctrine of

separation of power has not been accepted in a rigid sense in India. There is
personnel overlapping along with the functional overlapping. The Supreme
Court can declare any law framed by the legislature and executive void if they
violate the provisions of the Constitution.
Executive also has an impact on the functioning of the judiciary as they appoint
the judges and Chief justice. The list is so exhaustive.
In the case of Indira Gandhi vs Raj Narain, the court held that In our
Constitution the doctrine of separation of power has been accepted in a broader
sense. Just like in American and Australia Constitution where a rigid sense of
separation of power applies is not applicable in India.
Justice Chandrachud also expressed his views by stating:
“The political purpose of the doctrine of separation of power is not widely recognized. No provision can be
properly implemented without a check and balance system. This is the principle of restraining which has
in its precept, innate in the prudence of self- preservation that discretion is better than its valor.”
In Ram Jawaya vs The State of Punjab, Justice Mukherjee observed:
“In India, this doctrine has been not be accepted in its rigid sense but the
functions of all three organs have been differentiated and it can be said that our
constitution has not been a deliberate assumption that functions of one organ
belong to the another. It can be said through this that this practice is accepted
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in India but not in a strict sense. There is no provision in Constitution which
talks about the separation of powers except Article 50 which talks about the
separation of the executive from the judiciary but this doctrine is in practice in
India. All three organs interfere with each other functions whenever necessary.”
Although, there is an explicit provision in Constitution just like American

Constitution that executive power is vested in President under Article
53(1) and in Governor under Article 154(1) but there is no provision which
talks about the vesting of legislative and judiciary power in any organ. We can
conclude that there is no rigid separation of power.
At the first instance, it appears that our Constitution is based on this doctrine
itself as the judiciary is self-sufficient and there is no interference either by
executive or legislature. Court also prohibits the administration of judiciary is
not to be discussed in the parliament. Power of judicial review and to declare
any law as void is given to the Supreme Court. The judges of Supreme Court is
appointed by President in consultation. Chief Minister and judges of the
supreme court. The Supreme court make the rules and regulations for the
effective conduct of business.
However, Article 50 of the Constitution of India talks about the separation of the
executive from the judiciary as being a Directive Principle of State Policy it is
not enforceable. Certain privileges, power, immunities are given to the Member
of Parliament under Article 105. this provision makes the legislature
independent. The executive power is conferred on President and Governor they
are being exempted from civil and criminal liabilities.
But, if we read carefully it is clear that doctrine is not accepted in a rigid sense.
The executive is a portion of the legislature and the executive is accountable for
its conduct to the legislature and also its derive its authority from the
legislature. Since India has a parliamentary form of government should a
mutual connection and coordination between the legislature and executive. As
executive power is vested in the president but in actuality, the real head is
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Prime Minister of India along with Council of Minister and president is only a
nominal head. Article 74(1) talks that executive head has to conduct in
conformity with the aid and advice of Cabinet.
Ordinarily, all the legislative power is vested in the legislature but in certain
circumstances, the president may be empowered to exercise the legislative
power. For example, the president can issue ordinance under Article 123 when
the parliament is not in session, making the rules when there is an emergency.
Sometimes the president may also exercise judiciary power. When a president
is being impeached, both houses take active participation and finalize the
charges.
Judiciary also performs the administrative actions while formulating the

regulations and giving guidance for the subordinate court as well as perform
legislative powers by framing the rules regulating their own procedure
So it is presumed from the provisions of the constitution that India being a

parliamentary form of government does not follow the absolute separation there
is an amalgamation of the powers where the connections between the different
wings are inevitable and it can be drawn from the constitution itself. Every
organ performs all types of functions in one or other form subject to the check
and balance by other organs. All three organs are interdependent because India
has a Parliamentary democracy. This does not mean that it is not accepted in
India it has been accepted up to a certain extent.
But when it is expressly provided that one organ shall not perform functions of
the other, then it is prohibited. In the Delhi laws case, it was stated that the
legislature should exercise all the powers of legislation only in extraordinary
circumstances like when parliament is not in session or emergency. We can say
that the legislature is created by the Constitution to enact the laws.
In India, there is no separation of power but there is a separation of powers.

Hence, in India, the people are not stuck by the principle by its rigidity. For
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example, the cabinet minister exercises both the executive and administrative
functions. Article 74(1) states that it is mandatory for the executive head to
comply with the advice of the cabinet ministers. In Ram Jawaya vs the State of
Punjab, it was held that the executive is a part of the legislature and is
accountable.
If we talk about the amending power of the Parliament under Article 368, it
has been subject to the concept of the basic structure held in case of
Kesavananda Bharati vs State of Kerala.
In this case, it was held that the Parliament couldn’t amend the provision in
such a way that violated the basic structure.
And if it is made in violation of basic structure then such amendment will be

declared as unconstitutional null and void.
Going through this case law regarding the Supreme court judgment it can be
observed that the basic structure cannot be amended and strict applicability of
doctrine can be seen.
Although strict separation of power is not followed in India like the American
Constitution, the system of check and balance is followed. However, no organs
are to take over the essential functions of other organs which is the part of the
basic structure, not even by amending and if it is amended, such amendment
will be declared as unconstitutional.
Conclusion
Exercising the doctrine of separation power cannot be applied in the strict sense
in any contemporary countries like The United States, Nepal, France etc. But
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still, this doctrine has relevancy nowadays. Our government is an organized
system and it is very difficult to divide into watertight compartments.
For the smooth functioning of any government, cooperation and coordination

among all three wings of the government are necessary. Professor Garner said
that “this doctrine is impracticable as working principle of Government. It is
difficult to divide the functions of each organ on an accurate basis”.
In my opinion, this doctrine has a great significance as it protects the liberty of

the individual from the arbitrary rule and prevents the organs from usurping the
essential functions of other organs.
TYPOLOGY OF FEDERALISM – USA, INDIA
Federalism can be simply defined as a form of government where there is

interdependence of central government at the national level with its constituent
units at the regional, state, or local levels. Etymologically, Foedus is the root Latin
term from which the term Federalism is derived, which means a formal
agreement or covenant or a treaty. It basically means sharing of decision making
authority and devolution of power between the national and local governmental
units, such that each unit is delegated a sphere of power and authority only it can
exercise, while other powers must be shared. Justice Hugo. L. Black in the case
of Younger v. Harris decided by the United States Supreme Court wrote that
Federalism meant “a proper respect for state functions, a recognition of the fact
that the entire country is made up of a Union of separate State governments, and
a continuance of the belief that the National Government will fare best if the
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States and their institutions are left free to perform their separate functions in
their separate ways.”
Looking at the Indian context, there are two levels of government: The central
government with sole authority to coin money, raise an army and declare war,
while an intermediate level of government i.e. states or provinces who have the
sole authority to regulate education, criminal or civil law etc. So does the Indian
Constitution represent Federalism or not? The First Article[5] of our Constitution
reads,“India, that is Bharath, shall be a Union of States.” Dr. B.R. Ambedkar, the
architect of the Indian Constitution, said that this union was a federation and
called it a flexible federation, so as not to make it as rigid as the American
Federation. The reason why federalism as a constitutional principle was
articulated differently was because of the historical context in which our
constitution was made, as the thought of a more potent federalism would
weaken the feelings of national unity in the country.
Similarities between the federalism of US and India
1) Written Constitution
The Constitution of both US and India is a written Constitution, which provides for
a federal political structure where both the governments exercise their respective
powers. The Constitutions of both the countries provide for amending the
Constitution to meet the changing circumstances and the growing political,
economic, social needs and demands political and economic needs and demands
of their respective countries.
2) Bill of Rights and Fundamental Rights
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The US Constitution has given its citizens fundamental rights such as the right to
equality, freedom, right against exploitation, freedom of religion, cultural and
educational rights, right to property, and the right to Constitutional remedies etc.
by means of ‘The Bill of Rights’, Part III of the Indian Constitution guarantees the
fundamental rights of the people as given in Articles 14 to 34.
3) Supremacy of the Federal or Union Government
In both the countries, the federal government works at the centre in which
various states have acceded to. In the US, there are 50 states who have
associated them to the federal government and in the Indian Union, as many as
29 states and 8 Union territories have accepted this form of government. Both in
US and India, states which have accepted the Federal set up have no individual
power to separate from the Central Government or the Union Government. While
both the Central as well as State Government is empowered to makes laws on
subjects given in the concurrent list, the law enacted by the Federal or Union
Government will prevail over the law enacted by the states on the same subject in
case of dispute. Thus, Federal or Union Government is supreme in the present
federal structure.
4) Separation of powers
Both US and Indian Constitutions provides for separation of powers among three
institutions namely executive, legislature and judiciary. Each division is
empowered with a separate power. The executive governs the country, the
legislature makes laws, and the judiciary ensures justice. President of US is the
chief executive head of US, whereas the Union cabinet headed by the Prime
Minister is the real chief executive body in India. Both US and India have
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a bicameral legislature. The upper and the lower houses of US legislature are
called as the House of Senate and the House of Representatives respectively, and
the Indian Parliament has Lok Sabha and Rajya Sabha as its Lower and Upper
house respectively.
5) Powers of Checks and Balances
Though there is a clear-cut separation of powers between executive, legislature

and judiciary in both countries, still there can be overlapping of these powers.
There are chances of abuse of power or arbitrariness. Thus, there is a need for a
system of ‘checks and balances’ prevalent in both countries.
The President having chief executive power appoints the members of his ‘Kitchen
Cabinet’ and he is the Supreme Commander-in-Chief of Army, Navy and the Air
Force. He is empowered to appoint the Chief Justice of the Supreme Court of the
US. He enters into treaties with other countries. However, his treaties must be
approved by the House of Senate. Otherwise, the treaty will not come into force.
Similarly in India, it is the Prime Minister and his cabinet who exercise real power.
They can be removed from power by a successful no-confidence motion passed
by both houses of parliament. The policy decisions become laws only after
obtaining the requisite majority of the parliament. However, the laws enacted by
the parliament are subject to the judicial review of the Supreme Court of India.
Thus, the powers of checks and balances have been the efficient method both in
the US and in India in protecting the democracy in both countries.
Comparison of federalism between U.S. and India
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There are certain differences that exist between the federalism of US and India.
These differences have been created by the architects of the Indian
Constitution. The US federalism is very strong and more rigid as envisaged in their
Constitution by its leaders. It is more federal than unitary in character. Whereas,
India is more unitary than federal and we can even say that it is a quasi-federal
state.
1) The Constitution of US is very rigid than the Indian Constitution
The Constitution of US is very precise and rigid running into only a few pages,
whereas the Constitution of India is very bulky containing as many as XXII parts,
395 articles, and ten schedules. Since the US Constitution is very rigid, the
provisions meant for amending the Constitution are also very rigid and more
formal. The US Constitution has been amended only 27 times. Whereas, the
Indian Constitution, which came into force in the year 1950, has so far been
amended 94 times. Therefore, it is easy to amend the Indian
2) While the US has the Presidential form of Government, India has the
Parliamentary form of Government
In the US, the President is the head of the state and so his government is
popularly referred as the Presidential form of government. India, on the other
hand, has a Parliamentary form of Government as the Prime Minister with his
cabinet exercises real power with the President being only a nominal head. The
President of US holds office for a period of four years while the Indian Prime
Minister holds power for five years as long as his political party enjoys a majority
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in the Lok Sabha. While the US follows the bi-party system, India has a multi-party
system and a complicated process of election.
3) Differences in the judicial system between US and India
US being a developed country have an advanced judicial system. The judicial

system of India is however rapidly developing. A Judge in the US holds office as
long as he is capable of performing his duties. Indian Constitution on the other
hand states that a District judge holds his post till the age of 58, a High Court
judge holds till the age of 62 and a Supreme court Judge retires at the age of 65.
4) Difference in citizenship
The Constitution of India recognises single citizenship. On the other hand, USA
Constitution provides for a double citizenship that is a US citizen can have
citizenship of two countries, USA and some other country.
Conclusion
Thus, it can be concluded that there are certain features of federalism which are
common to both India and the USA. On the other hand, India and the USA differ
in many aspects related to the federal character of their Constitution. However,
both the US and the Indian Federalism despite having limitations are by and large
successful.
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CHECK YOUR PROGRESS

Question 1- Explain different forms of government?
Question 2- What are the advantages & disadvantages of

parliamentary form of government?
Question 3- Explain presidential form of government &

difference between presidential & parliamentary form of
government?
Question 4- Explain the doctrine of separation of power?

Describe provisions in Indian constitution in this respect?
Question 5- Explain typology of federalism in context of USA &

India? Describe similarities & differences between two?
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UNIT-3
PUBLIC INTEREST LITIGATION
1. INTRODUCTION
2. DEFINITION OF PIL
3. ORIGIN OF CONCEPT OF PIL
4. EVOLUTION OF PIL IN INDIA
5. ROLE OF JUDICIARY IN PIL (LANDMARK CASES)
6. GUIDELINES TO PREVENT MISUSE OF PIL
INTRODUCTION
Public interest litigation has historically been an innovative judicial procedure for
enhancing the social and economic rights of disadvantaged and marginalized
groups in India. In recent years, however, a number of criticisms of public interest
litigation have emerged, including concerns related to separation of powers,
judicial capacity, and inequality. These criticisms have tended to abstraction, and
the sheer number of cases has complicated empirical assessments.
The expression ' litigation' means a legal action including all proceedings therein,
initiated in a court of law with the purpose of enforcing a right or seeking a
remedy, The word 'Public Interest' means an act beneficial to public in general It
connotes action necessarily taken for public interest.
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Definition of Public Interest Litigation -

Public Interest Litigation is not defined in statute or in any act. It has been
interpreted by judges to consider the intent of public at large. In general parlance
the expression Public Interest Litigation means something in which some interest
of people in general or their rights and liabilities are affected. Public Interest
Litigation may be taken to mean a legal action initiated in a court of law for the
enforcement of the public interest or general interest in which the public or a
class of the community has pecuniary interest or have some interest because it
will affect their legal right or liabilities.
The phrase ‘Public interest Litigation’ relates to the very term ‘Public Interest’.
Generally the litigation by someone for the interest of the public is the Public
Interest Litigation. It does not mean that mere a stranger can move to court for a
Public Interest litigation and that’s why it is a carving need to define ‘Public
Interest’.
In Stround’s Judicial Dictionary, ‘Public Interest’ is defined as, ‘a matter of public

or general interest does not mean that which is interesting as gratifying curiosity
or a love of information or amusement; but that in which a class of the
community have a pecuniary interest, or some interest by which their legal rights
or liabilities are affected.’
Much wider definition has been given by the American Bar Association. According
to this definition, Public Interest Law Means;
“Legal services provide without fee or a substantially reduced fee which falls into
one or more of the following areas:
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1) Property Law;
2) Civil Rights Law;
3) Public Rights Law;
4) Charitable Organization Representation;
5) Administration of Justice.
Black in his LAW dictionary defines the word 'Public Interest' as something in
which the public or the community at large has some pecuniary interest or some
interest by which their legal rights or liabilities are affected.
ORIGIN OF CONCEPT OF PIL
The initial inspiration for PIL came from the American concept of Public Interest
Litigation and the class actions of the 1960’s.5 In U.S.A. it is called the ‘Public
Interest Law’ whereas in the Indian Subcontinent it is known as ‘Public Interest
Litigation’. In fact, it is the U.S.A., the real pioneer in the path of PIL which
influenced some PIL activist of some countries of the world to work for PIL in
1960s and 70s.6 Commentators frequently date the emergence of Public Law
Litigation (in USA Public Interest Litigation is named as Public Law Litigation) in
the U.S.A. to the celebrated campaign that resulted in the decision in Brown Vs.
Board of Education,7 in which U.S. Supreme Court declared unconstitutional a
stste’s segregation of public school students by race. Brown includes many
procedural features since associated with Public Law Litigation: the defendant
was a public institution; the claimants comprised a self-constituted group with
membership that changed over time; relief was prospective, seeking to reform
future action by government agents; and the judge played a leadership role
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complemented by the parties effort at negotiation. The literature distinguishes
this form of litigation from the classical model of adjudication, which is
conceptualized as a private, bipolar dispute marked by individual participation
and the imposition of retrospective relief involving a tight fit between right and
remedy.8
Brown provided inspiration to a generation of lawyers who saw law as a source of

liberation as well as transformation for marginalized groups. Courts, mostly
federal but state as well, became involved in a broad range of social issues,
including voting and apportionment, contraception and abortion, employment
and housing discrimination, environmental regulation, and prison conditions.
Prison reform litigation illustrates the extent of the judiciary’s involvement in
Public Law cases: after years of taking a “hands off” approach to prison
conditions, courts imposed remedial decrees in 48 of the nation’s 53 jurisdictions
(the 50 states, the District of Columbia, Puerto Rico and the Virgin Island).
EVOLUTION OF PIL IN INDIA
In legal parlance, Locus Standi means the right or capacity or standing to bring a
legal action. The question is whether party filing for an action before the Court
has the entitlement to do so. Does he have to be the one who suffered legal
injury, to be able to seek remedy under Article 32 This issue has been given a
wide connotation by the Court.
The traditional rule is that a person whose constitutional or legal right is infringed
can apply for relief under Article 226 of the Indian Constitution. But the Supreme
Court has now considerably liberalized the above rule of Locus Standi. The Court
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now permits the public-spirited persons to file a writ petition for the enforcement
of constitutional and statutory rights of any other person or class, form if that
person or class is unable to invoke the jurisdiction of the High Court due to
poverty or any social economic disability.
The seeds of the concept of public interest litigation were initially sown in India by
Krishna Iyer J., in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai and was
initiated in Akhil Bharatiya Sosail Karmchari Sangh (Railway vs. Union of India,
wherein an unregistered association of workers was permitted to institute a writ
petition under Art.32.
In 1981 Justice P. N. Bhagwati in S. P. Gupta v. Union of India, articulated the

concept of PIL as follows, Where a legal wrong or a legal injury is caused to a
person or to a determinate class of persons by reason of violation of any
constitutional or legal right or any burden is imposed in contravention of any
constitutional or legal provision or without authority of law or any such legal
wrong or legal injury or illegal burden is threatened and such person or
determinate class of persons by reasons of poverty, helplessness or disability or
socially or economically disadvantaged position unable to approach the court for
relief, any member of public can maintain an application for an appropriate
direction, order or writ in the High Court under Article 226 and in case any breach
of fundamental rights of such persons or determinate class of persons, in this
court under Article 32 seeking judicial redress for the legal wrong or legal injury
caused to such person or determinate class of persons.
The very first case, which appeared before the Hon’ble Supreme Court of India
after the relaxation of the rule of locus standi, was the case of “Hussainara
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Khatoon vs. Union of India”. In this case, an advocate file a PIL based on the news
item published in the Indian Express. The PIL was in relation to the thousands of
under trail prisoners, who were suffering in the Bihar Jail. This PIL resulted in the
release of 40,000 under trial prisoners and the right to speedy remedy emerged
as a fundamental rights.
ROLE OF INDIAN JUDICIARY IN PIL
Rural Litigation Entitlement Kendra (RLEK) v. UOI, 1988:
This was the first environmental PIL in India. The Supreme Court acting promptly
prohibited the mining operations with a view to determine if the mines were
operated with the safety standards. It appointed the Bhargava Committee-
Vishaka V/S State of Rajasthan
This case came before the Supreme Court as a Public Interest Litigation against
State of Rajasthan and Union of India by Vishakha and other women groups. The
petitioners demanded enforcement fundamental rights for working women under
Articles 14, 19 and 21 of the Constitution. For this, Vishaka Guidelines were
issued. The judgment also provided basic definitions of sexual harassment at the
workplace along with provided guidelines to deal with the same.
MC Mehta v. Union of India
MC Mehta filed a Public Interest Litigation for escape of poisonous gases by a

plant in Bhopal. The court in this case extended the scope of Article 21 and 32 of
the Constitution of India. The case is also famous as Bhopal Gas Tragedy.
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Olga Tellis v. Bombay Municipal Corporation
This case came before the Supreme Court as a writ petition. 5 judge-bench gave
decision allowing petitioners who live on pavements and in slums in the city
of Bombay to stay on the pavements against their order of eviction. The court
also held that right to livelihood is a right to life as per Article 21.
Sunil Batra v. Delhi Administration
The apex Court here dealt with the right to protection against solitary
confinement and putting undertrials. It observed that the operation of Articles14,
19 and 21 may be pared down for a prisoner but not puffed out altogether and
every man or women sentenced for a term is doing violenceto Part III”.
Shreya singhal v. Union of India
The apex Court held section 66A of the Information Technology Act which allowed
arrests for objectionable content posted on the internet as unconstitutional and
hence, struck down by the impugned section.
Naz foundation v. NCT
The court decriminalized sexual activities “against the order of nature” which
included homosexual acts, as per Section 377 of the Indian Penal Code. But this
judgement was overruled in 2013 by the Supreme Court of India.
NLSA (national legal ser auth) v. Union of India
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The Court recognized rights of the transgender as third genders. Also, ordered
government to treat them as minorities. Reservations in jobs, education and
other amenities shall also be provided to them.
Hussainara Khatoon case
One of the earliest cases in the subject of Public Interest Litigation is the famous
Hussainara Khatoon case. It observed that “even under our Constitution, though
speedy trial is not specifically enumerated as a fundamental right, it is implicit in
the broad sweep and content of Article 21.
M.C. Mehta vs UOI:
This case was against those who were polluting the Ganga river. against
numerous industries and cities which mixed the Ganges with effluents and toxic
waste. This case made the court to pass numerous orders against the industries to
set up a sewage treatment plant
GUIDELINES TO PREVENT MISUSE OF PIL:
State of Uttaranchal vs Balwant Singh
Encourage genuine and bonafide PIL and discourage and curb those filed for
extraneous considerations.
* Instead of every individual judge devising his own procedure for dealing with
public interest litigation, it would be appropriate for each HC to properly
formulate rules for encouraging genuine PILs and discouraging PILs filed with
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Oblique motives. HCs should frame rules in this regard within three months.
* Verify credentials of petitioner before entertaining a PIL
* Ascertain correctness of facts mentioned in PIL
* Check whether substantial public interest is involved
* Give priority to PILs involving larger public interest
* Ensure that the PIL seeks redressal of a genuine public harm or injury and that
there is no personal gain, private motive or oblique motive behind it
* Impose exemplary cost on busybodies and frivolous PILs.
CONCLUSION
PIL has an important role to play in the civil justice system in that it affords a
ladder to justice to disadvantaged sections of society, some of which might not
even be well-informed about their rights. Furthermore, it provides an avenue to
enforce diffused rights for which either it is difficult to identify an aggrieved
person or where aggrieved persons have no incentives to knock at the doors of
the courts. PIL could also contribute to good governance by keeping the
government accountable. Last but not least, PIL enables civil society to play an
active role in spreading social awareness about human rights, in providing voice
to the marginalized sections of society, and in allowing their participation in
government decision making.
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UNIT4
OMBUDSMAN
CONCEPT OF OMBUDSMAN
MEANING OF OMBUDSMAN
ORIGIN OF THE CONCEPT
OBJECTIVES OF THE OMBUDSMAN
OMBUDSMAN IN DIFFERENT COUNTRIES
CHARACTERISTICS OF OMBUDSMAN
SELECTION PROCESS IN INDIA
LOKPAL & LOKAYUKT ACT
CONCEPT OF OMBUDSMAN
In a democratic set up, the welfare and satisfaction of people is of paramount

consideration, but looking at the present scenario, the cries of the people go
unheard and they become the victims of administrative vicious decisions or
injustice and left un-redressed. The main problem before the administrative
system,therefore, is how to provide the citizen with an alternative institution with
in the democratic framework which enjoys the confidence of the people and
provides forbetter redressal mechanism. An urgent need for a watchdog over the
government isnecessary; the concept of ombudsman is the solution to the problem
of maladministration and corruption. The idea of such an institution which can
look into the complaints of the citizens and redress their grievances emerged due to
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widespread corruption and mal administration in various government departments
and due to the political instability of the country.
The need for this important institution is much more pronounced in the under
developed countries of Asia. The institution of ombudsman or the parliamentary
commissioner is gaining increasing recognition as a powerful instrument for
redressing the citizen’s complaints arising from the callousness of the
administrative machinery or the transgression by it of the individual’s rights. The
institution is also useful in focusing attention on the improvement of administrative
procedure International Journal of Law through continuous criticism of the
working of the bureaucratic system as revealed in the inquiries instituted by the
ombudsman on the citizen’s complaints or even suomoto.
MEANING OF OMBUDSMAN
Meaning of Ombudsman Etymologically the Swedish word ‘ombud’ refers to a

person who acts as a spokesman or representative of another person. In Swedish
public law, however, Ombudsman means an appointee of the Parliament of
Sweden for the supervision of the administration. It is in the Swedish sense the
word ombudsman has been commonly used. Ombudsman is from Sweden, a
Germanic language in the same family as English, and man in Swedish
corresponds to our word man. Ombud means "commissioner, agent," coming from
Old Norse umbodh, "charge, commission, administration by a delegacy," umbodh
being made up of um, "regarding," and bodh, "command." In Old Norse an
umbodhsmadhr was a "trusty manager, commissionary." In Sweden, an
ombudsman was a deputy who looked after the interests and legal affairs of a
group such as a trade union or business. In 1809 the office of riksdagens justitie
ombudsman was created to act as an agent of justice, that is, to see after the
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interests of justice in affairs between the government and its citizens. Recently,
however, an effort has been made to standardize the meaning of the term
Ombudsman.
Ombudsman is a quasi-judicial officer who acts independently and non-patricianly

to perform his duty to supervise the administration. He performs the duty of
inquiry and investigation to deal with the specific complaints fro m the public
against administrative injustice and maladministration. In essence, the primary
duty of an Ombudsman is to investigate complaints and attempt to resolve them,
usually through recommendations or mediation. Since nation prosperity typically
depends on the proper and efficient functioning of the administrative side of the
nation, ensuring that no corruption takes place is of significant value. The
Ombudsman plays an important role in tackling the issue of corruption and in
India; this role is efficiently played by the Lokpal at the Centre level and the
Lokayuktas at the State level.
ORIGIN OF THE CONCEPT
The institution of Ombudsman owes its origin from Sweden, however, its traces
may be found in ancient history. In this regard, Dr. Pickle, Director General of the
Austrian Ombudsman’s Office has made the following observation in his
renowned paper “The Ombudsman and Administrative Reforms.” [2] “Institution
to investigate complaints can only be seen in the context of public administration;
hence the history of ombudsman is also the history of public administration as a
whole. It can be traced from the verses of the Koran; where the term
‘administration’ is not used, but in many of its verses the principles of political and
administrative system are expounded. Justice was considered as one of the basic
tenet of Islamic Ideology.” As Sweden has constitutional monarchy form of
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government where the king exercises almost all important governmental decisions
with the approval of his cabinet but no longer exercises political power over its
people. Article 96 of the Swedish Constitution lays down that ombudsman acts as a
representative of the Parliament and should supervise the observance of the laws
and status as they may be applied by the court and by public officials and
employees. The justitie ombudsman is in reality entirely not only independent of
the government but also of the Parliament itself; but made dependent only on law.
OBJECTIVES OF THE INSTITUTION OF OMBUDSMAN

To correct individual wrongs.
To make bureaucracy more humane.
To lessen popular alienation from government.
To prevent abuses by acting as a bureaucratic watchdog.
To vindicate civil servants when unjustly accused, and
To introduce administrative reform.
OMBUDSMAN IN DIFFERENT COUNTRIES
The Swedish Ombudsman
Ombudsman is a household word in Sweden. A Swedish word Ombud means

“Commissioner or Agent”. It is derivate from the Old Norse Umbodh means to
charge a Commission. In Old Norse, Umbodhsmadhr was a deputy who looked
after the interests and legal affairs of a group of such a trade union or business. [3]
Swedish Ombudsman is a world classic establishment, which is independent,
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impartial and economically viable in terms of seeking help on corrupt practices.
Hence, it has inspired confidence in public. After Sweden, many Scandinavian
countries followed by the European, African, Australian countries adopted the
concept. It is observed that the countries those are implementing Ombudsman
properly are less corrupt and most peaceful, whereas, the countries those are not
having it or not implementing it properly are most corrupt and very unpeaceful.
The Ombudsman in the United Kingdom
Public Accounts Committee and the Comptroller and AuditorGeneral and their
relationship with each other are even greater than this unique contribution to the
checking of maladministration. For it has been substantially on this model that,
when it was finally decided in Britain that an experiment should be made with
some further machinery for the redress of grievances, the office of Parliamentary
Commissioner for Administration was established in 1967. From the outset of the
campaign to improve remedies for maladministration, the analogy of the
Comptroller and Auditor-General was used. Professor F. H. Lawson, in a short
memorandum published in Public Law in 1957, a memorandum which was to
prove most influential in initiating action as it turned out proposed that an
Inspector-General of Administration should be appointed to investigate complaints
of maladministration, that he should have the same status and tenure as the
Comptroller and Auditor-General, and that like him he should report to a select
committee of the House of Commons similar to the Public Accounts Committee.
He contemplated that the person appointed would, " like the Comptroller and
Auditor General, almost inevitably be a higher civil servant nearing the end of his
career," and as such, " he would, while preserving impartiality and independence,
not only have experience of administration, but be able to speak to officials and
departments as one of themselves."
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Development in India
Following the recommendation of the Administrative Reforms

Commission, headed by Moraji Desai, the Central Government took some steps for
the adoption of the Ombudsman system in India. The Commission submitted its
report on Oc tober 20, 1966, and propounded a scheme for creating an
Ombudsman system in the country. Although the commission drew largely from
the experiences of other nations in drafting its ombudsman scheme, it was
composed of a number of peculiar features drafted on its own owing to the diverse
circumstances in India such as federal structure; larger population than other
countries having the Ombudsman system; parliamentary government with
ministerial responsibility. The commission’s recommendation was accepted by the
Government of India.
In 1969 the Lok Sabha enacted the Lokpal and Lokayukta Bill, 1968. It was the
second definitive step taken towards the creation of the Ombudsman system in
India[4]. The Bill reflected the recommendations of the commission with a few
deviations.
The first deviation made by the bill was to confine the jurisdiction of the
Ombudsman within the central sphere, excluding the states out of its purview but
the bill lapsed. In 1971, another attempt was made with the introduction of another
bill, yet again failed. The third attempt was made in 1977 with the introduction of
the Lokpal Bill, 1977 in the Lok Sabha. Again with the dissolution of Lok Sabha,
this bill also lapsed. Another Lokpal Bill was brought before the Parliament in
2001 but lapsed on account of the dissolution of the 13th Lok Sabha.
Each time the Lokpal Bill was introduced in the Parliament, it was referred to
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SCHOOL OF LAW
committees for their recommendation, before the Government could take a final
stand in the matter of the Lok Sabha house being dissolved. It is evident that so far,
all attempts of the parliament members to establish the central-level Ombudsman
system have proved futile.
It was in the year 2011, the Lokpal Bill was passed and it eventually led to the
establishment of the institution of Ombudsman (Lokpal) at the Centre and
Lokayukta at State level. Lokpal is the Indian Ombudsman and Lokayuktas is the
State Ombu sman. Lokpal in India is a national anti-corruption ombudsman to look
into complaints against public servants and officials which are defined under the
Lokpal Act 2013. This quasi-judicial body was constituted with an aim to check
the menace of corruption in India.
Retired Supreme Court judge Pinaki Chandra Ghose is appointed as the first
Lokpal of India by a committee consisting of Prime Minister Narendra Modi and
Chief Justice of India Ranjan Gogoi and Lok Sabha speaker Sumitra Mahajan on
23 March 2019
CHARACTERISTICS OF OMBUDSMAN
1. Established as a separate entity that is functionally autonomous.

2. Operationally independent of both the legislature and the executive.
3. Ombudsman is a legally established governmental official, a monitoring specialist,
administrative expert and professional.
4. Non-partisan.
5. Normatively universalistic.
5. Client-centered, but not anti-administration.
6. Popularly
SELECTION accessible and visible.
PROCEDURE
7. High-status institutions
8. Have extensive resources to perform his mission.
16
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The Lokpal consists of one Chairperson and eight members and these members are
selected through the screening of two committees and these committees are,
Selection Committee and Search Committee.
The Selection Committee has the core function of selection and final say in the
matter and it comprises of five prestigious office-bearers as members, viz, the
Prime Minister, the Speaker of the Lok Sabha, the Leader of Opposition in the Lok
Sabha, the Chief Justice of India (CJI) or a judge of the Supreme Court nominated
by the CJI, and one eminent jurist, as recommended by the other four members of
the committee. Before selection by the committee above, another group of seven
members is constituted, called the Search Committee. An essential function of this
committee is to shortlist a panel of eligible candidates for the post of Chairperson
and members of the Lokpal, which is then put before the Selection Committee.
NEED FOR LOKPAL
Lack of Independence Most of our agencies like CBI, state vigilance departments
etc. In many cases, they have to report to the same people who are either
themselves accused or are likely to be influenced by the accused.
Powerless Some bodies like CVC or Lokayuktas are independent, but they do not
have any powers. They have been made advisory bodies. They give two kinds of
advise to the governments – to either impose departmental penalties on any officer
or to prosecute him in court.
Lack of Transparency and internal accountability In addition, there is the problem

of internal transparency and accountability of these anti-corruption agencies.
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SUPREME COURT ON LOKPAL & LOKAYUKT
Supreme Court has pronounced decision regarding the institution of Ombudsman.
1. Common Cause, A Registered Society v. Union of India & Ors.[x]
This case is a review petition to provide relief to pass an appropriate writ, order or
orders to direct the Parliament to draft a Bill for the enactment of a legislation to
establish the institution of Lokpal, or an alternative system similar to Ombudsman
for checking and controlling corruption at public, political and bureaucratic levels
Lokpal and Lokayukta Act, 2013
The Lokpal and Lokayukta Act, 2013 seeks to provide for the establishment of
Lokpal for the Union and Lokayukta for States to inquire into allegations of
corruption against certain public functionaries and for related matters. The act
extends to whole of India, including Jammu & Kashmir and is applicable to
"public servants" within and outside India. The act mandates for creation of Lokpal
for Union and Lokayukta for states.
Jurisdiction of lokpal
The jurisdiction of the Lokpal will include the Prime Minister except on
allegations of corruption relating to international relations, security, the public
order, atomic energy and space and unless a Full Bench of
the Lokpal and at least two-thirds of members approve an inquiry. It will be held
in-camera and if the Lokpal so desires, the records of the inquiry will not be
published or made available t anyone. The Lokpal will also have jurisdiction over
Ministers and MPs but not in the matter of anything said in Parliament or a vote
given there. Lokpal’s jurisdiction will cover all categories of public servants.
18
SCHOOL OF LAW
Group A, B, C or D officers defined as such under the Prevention of Corruption

Act, 1988 will be covered under the Lokpal but any corruption complaint against
Group A and B officers, after inquiry, will come to the Lokpal
Powers of lokpal
It has powers to superintendence over, and to give direction to CBI.

3) If it has referred a case to CBI, the investigating officer in such case cannot be
transferred without approval of Lokpal.
4) Powers to authorize CBI for search and seizure operations connected to such
case.
5) The Inquiry Wing of the Lokpal has been vested with the powers of a civil
court.
6) Lokpal has powers of confiscation of assets, proceeds, receipts and benefits
arisen or procured by means of corruption in special circumstances
7) Lokpal has the power to recommend transfer or suspension of public servant
connected with allegation of corruption.
8) Lokpal has power to give directions to prevent destruction of records during
preliminary inquiry.
LIMITATIONS
1. The present Act mandates the setting up of Lokayuktas in each state within
one year along with the provision that State legislatures shall have the
authority to determine the powers and jurisdiction of the Lokayukta. This
makes the situation crystal clear and the gives rise to the apprehension of
inefficient Lokayuktas with restricted jurisdiction in the fetters of the state
government’s stewards.
19
SCHOOL OF LAW
2. Lokpal “shall not inquire or investigate into any complaint, if the complaint
is made after the expiry of a period of seven years from the date on which
the offence mentioned in such complaint is alleged to have been
committed.”
CHECK YOUR PROGRESS

Ques1. Define the term ombudsman its objective
& characterstics?
Ques2. Discuss development of the concept of

ombudsman in different countries?
Ques3. Discuss important features of Lokpal &

lokayukt Act?
Ques4. Discuss the concept of ombudsman in the

context of India?
20
SCHOOL OF LAW
21

Understanding Public Law Fundamentals

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SCHOOL OF LAW

RENAISSANCE UNIVERSITY, INDORE (M.P)

 Meaning and definition of Public Law

“No law is stronger than is the public sentiment where it is to

MEANING OF PUBLIC LAW

The relationships public law governs are asymmetric and in equalized.

CONCEPT OF PUBLIC LAW

EVOLUTION OF PUBLIC LAW

Magna Carta – the

French declaration Constitution of

AREAS OF PUBLIC LAW

Constitutional law defines the relationship between various branches of

Administrative law[2] deals with the actions and operations of government. It

IMPORTANCE OF PUBLIC LAW:

Public law is important because of the unequal relationship between the

For example: if you worked in constitutional/administrative law, you could be

Criminal lawyers work on all aspects of a case including investigation, liaising

CONSTITUTIONALISM & RULE OF LAW

For genuine democracies, constitutions consist of overarching arrangements that

2. Meaning of Rule of Law

The doctrine of Rule of law has 3 meaning in dicey book.

3. Constitutionalism And Rule of Law

CHECK YOUR PROGRESS

Ques 1. Define the meaning of public law and its

Ques 2. Difference between public and private law?

Ques 3. What do you mean by constitutionalism?

Ques 4. Constitutionalism & rule of law? Discuss.

1. NON- DEMOCRATIC FORM OF GOVERNMENT

A monarchy is a form of government led by an individual who holds the position

a. Absolute monarchy, in which the monarch has very few or no legal

II. Democratic and Republican Form of Government

A. Democratic Government- In a democracy, the leaders of the country are

C. Parliamentary form of Government- It was established in 1918 and developed

UK has a bicameral legislature, which signifies two Chambers in the Parliament

Features of Parliamentary form of government

Advantages of Parliamentary form of government

 Enabling effective coordination between Legislature and Executive: The

Disadvantages of Parliamentary form of government

 No separation of powers: There is no specific separation of powers, the

III. Presidential Form of Government

A. Presidential form of Government in the USA

Features of Presidential form of government

Advantages of Presidential form of government

Disadvantages of Presidential form of government

Constitutional safeguards for every individual with regards to electing

However, ‘good’ governance is the ability of the government to plan through

The separation of powers is imitable for the administration of federative and

The term “separation of powers” or “trias –politica” was initiated by Charles

The definition of separation of power is given by different authors. But in

Three Tier Machinery of State Government

It is the organs which are responsible for implementing, carrying out or

Summarily, the importance can be encapsulated in the following points:

 Ending the autocracy, it protects the liberty of the individual.

Constitutional Status of Separation of power in India

Parliament ( Lok Sabha and Rajya Sabha)

At the central level- President

In the case of I.C Golakhnath vs State of Punjab, the Constitution brings

If we go through the constitutional provision, we can find that the doctrine of

Justice Chandrachud also expressed his views by stating:

In Ram Jawaya vs The State of Punjab, Justice Mukherjee observed:

Although, there is an explicit provision in Constitution just like American

Judiciary also performs the administrative actions while formulating the

So it is presumed from the provisions of the constitution that India being a