Comparative Public Law

Course Code: LLM 2021 T1 G 003

1.0. Course Description

Public law (latin ius publicum) governs relationships between individuals and the
government, which directly affects the society. But this relationship is majorly asymmetric
and unequal – government bodies (central or local) can make decisions about the rights of
individuals. However, this power of Government is curtailed by the rule of law doctrine.
Legislating and executing authorities may only act within the law (secundum et intra legem).
Th idea of ‘Rule of Law ‘originated in France, Germany and Austria in the 18th century and
was inspired by the French Revolution and led to creation of civil codes and criminal codes.
Many common legal systems like United Kingdom had no very clear public law in the
beginning of 20th century. The two world wars and especially UK's entry into the European
Economic Community led to development and establishment of the public law by the 1980s.
This course traces the development of public law from Roman Empire to late 20 th century. It
would also look into the changes brought in public dealing by State under the doctrine of
Rule of Law.
2.0 Course Objective
The main objects of the course is-
 To understand the concept, role and nature of public law.
 To examine the role of Roman laws in shaping of public laws.
 To identify the causes of global constitutionalism
 To assess to role of constitutional justice and interface of rule of law in governance.
 To identify why secrecy and absolutism has been discarded and transparency is in
modern dynamics.
 To analyse the role of non state actors in policy framing and relevance of comparative
law.
3.0. Course Outcome
After the completion of the course the student
 will understand the role of Roman system of governance and its impact on evolution
of public law.
 shall come to know the importance of accountability in public life.
 will get to understand the constitutional justice.
 will also come to know the concept of comparative institutions of public law.
4.0. Evaluation Scheme

(A) Continuous Evaluation:

(i) Research Paper Submission 20 Marks
a) Approval of Synopsis 10 Marks
b) Final Submission 10 Marks
(ii)Research Paper Presentation/Viva 10 Marks
(iii) Mid Term Exam 20 Marks
(B) End- Semester Examination 50 Marks
 Total 100 Marks
5.0. Pedagogy
A various learning methods will be used which will emphasize a cooperative learning format.
Student led discussions and presentations will be combined with instructor facilitated
experiences and lectures. Specific methods include:

 Class Room Discussion

 Teaching Assignment
 Seminar Presentations
 Case Study
 Case Observation
 Projects
 Panel Discussion

6.0. Syllabus: Comparative Public Law

Module I
Introduction- Concept of Public Law, Origin and System across the Globe (Res Publica)
 Comparative Public Law

1.1 Introduction to Law, Schools of Jurisprudence

There are four main divisions in schools of jurisprudence, namely

(1) the Philosophical,
(2) the Analytical (including the comparative),
(3) the Historical, and
(4) the Sociological.

We also have the Realist School in the United States.

1.1. (1) Philosophical School:

There are six thinkers who have moulded the Philosophical school. They are GROTIUS,
EMMANUEL KANT ,JOHANN GOTTLIEB FICHTE, DEL VECCHIO and HEGEL.

1. GROTIUS (1583-1645)

Hugo Grotius was a Dutch national and a Republican philosopher. He claimed that natural
law springs from the social nature of man and the natural law as well as positive morality,
both are based on the nation of righteousness. The rules of human conduct emerge from right
reason and they receive public support of the coercive force of the state but the census of
public disapprobation. Natural law is a dictate of right reason which points out that an act,
according as it is or is not in conformity with rational nature, has in it a quality of moral
baseness or moral necessity. Among the chief axioms of natural law enumerated by Grotius
are to abstain from that which belongs to other persons; to restore to another any goods of his
which we may have; to abide by pacts and to repay any damage done to another through
fault; and to inflict punishment upon men who deserve it.

He agreed with Aristotle that in order to find out what was natural, we must look to those
things which are in a sound condition, not to those that are corrupted. The state was defined
as "a complete association of free men, joined together for the enjoyment of rights and for
their common interest". It originated in a contract, but usually the people had transferred their
sovereign power to a ruler who acquired it as his private right and whose actions were
ordinarily not subject to legal control. If he miss uses his power, as a general rule, his subjects
have no right to revolt against him. But in some clear cases of usurpation or flagrant abuse of
power Grotius was willing to recognise a right of resistance. The state was defined by Grotius
as "a complete association of free men, joined together for the enjoyment of rights and for
their common interest."
2. EMMANUEL KANT (1724-1804)

Kant gave modern thinking a new basis which no subsequent philosophy could ignore.
The Copernican Turn' which he gave to philosophy was to replace the psychological and
empirical method by the critical method by an attempt to base the rational character of life
and world not on the observation of facts and matter but on human consciousness itself.
Kant, in his Critique of Pure Reason tried to draw a distinction between form and matter.
He observed that the impression of our senses is the matter of human experience which
are brought into order and shaped by human mind.

According to him "the freedom of man act according to his will and the ethical postulates
are mutually co-relative because no ethical postulate is possible without man's freedom of
self-determination". Kant calls substance of ethical postulate as “Categorical Imperative"
which is the basis of his moral and legal theory.

3. JOHANN GOTTLIEB FICHTE (1762-1814)

Fichte's philosophy is one of the human activism without bounds. To him, the starting point
and centre of all philosophical thinking is and must be the intelligent human ego. "Without
consciousness there is no being," says Fichte. The rational human ego is viewed as free in the
sense that it sets its own goals and is capable of attaining them. An individual becomes a
member of the state through fulfilment of civic duties. The law limits and assures the rights
of the individuals.

4. DEL VECCHIO

Del Vecchio developed independently of Stammler, a theory of law on essentially similar

foundations. According to Del Vecchio, the concept of law is juridical neutral. It cannot
distinguish between good and bad law and just and unjust law. Law is a phenomenon of
nature and collected by history. It is also an expression of human liberty which comprises and
masters nature and directs it to a purpose.

The absolute value of the person, equal liberty of all men, the right of each of the associates
to be an active, not just a passive, participant in legislation, liberty of conscience, and in
general the principles in which is summed up, eve amid accidental fallacies, the true
substance of the classical philosophy of law, juris naturalis scientia, have already received
important confirmations in the positive juridical orders, and will receive others soon or in the
course of time, whatever may be the resistance and the oppositions which they still encounter.

5. HEGEL (1770-1831)

Hegel was the most influential thinker of the philosophical school. According to him "the
state and law both are evolutionary". The great contribution of Hegel to philosophical school
is the development of the idea of evolution. The system of law, he asserted, is designed to
realise the ideal of freedom in its external manifestations.
 1.1. (2) ANALYTICAL SCHOOL OF JURISPRUDENCE

Positivism

French mathematician and philosopher Augste Comte (1798-1857) distinguished three stages
in the evolution of human thinking. The first stage is the theological stage, in which all
phenomenon are explained by reference to supernatural causes and the intervention of a
divine being. The second is the metaphysical stage, in which thought has recourse to ultimate
principles and ideas, which are conceived as existing beneath the surface of things and as
constituting the real moving forces in the development of mankind. The third and last stage -
the positivistic stage - rejects all hypothetical constructions in philosophy, history, and
science and confines itself to the empirical observation and connection of facts under the
guidance of methods used in the natural sciences. Separation of 'is' and 'ought' is the most
fundamental assumption of legal positivism.

It represents a radical departure both from the scholastic hierarchy of values in which
positive law is only an emanation of a higher natural law, and from the fusion of the
philosophy of law and the science of law. The purpose of analytical jurisprudence is to
ascertain the exact relation and points of contact between the larger parts of our jural system,
for example, law and equity. The chief exponents of the positivist or Analytical School in
England are Bentham, Austin, Sir William Markby, Sheldon Amos, Holland, Salmond and
Professor H.L.A Hart. In the United States, John Chipman Gray, Wesley N. Hohfeld, and
Albert Kocourek made contributions to analytical jurisprudence.

THE VIENNA SCHOOL OF JURISPRUDENCE

Legal theory of this school is indeed dynamic and pluralistic. The school regards it as a mark
of error to think of the law as completed within the stage of statute and to bar the door of the
law which is made in the judicial and administrative process. It regards it also as a mark of
error to think of the law as completed at the stage of judicial decisions and to neglect the legal
material which is already present as the product of the legislative process. Both are passive
objects of cognition for legal science, although taken together they only make possible a
partial knowledge of law as a whole, as it is presented to legal science.”

A] HANS KELSEN

Kelson was born at Prague in Austria in 1881 and was a Professor of law at the Vienna
University. He came to United States and worked as professor of law in several American
universities and authored many books. He was emeritus Professor of Political science in the
California University when expounded his ‘Pure theory of law’ which is considered to be
Kelsen’s unique contribution to legal theory. Kelsen’s pure theory of law is akin to that of
Austin’s theory of law, although Kelsen, when he began to develop his theory was quite
unaware of Austin’s work. He nevertheless recognised the essential identity of his own
objectives with Austin’s, namely, to base a theory of law on a positive legal order or on a
comparison of the contents of several legal orders and thus by confining jurisprudence to a
structural analysis of positive law to separate legal science from philosophy of justice and
sociology of law.

He wished to free the law from the metaphysical mist with which it has been covered all
times by the speculations on justice or by the doctrine of ‘jus naturale’. It is a science and not
a politics of law. The theory of Kelsen says Dias has represented a development in two
different directions. Nearly a century separates the work of Hans Kelson from that of Austin.
If Austin was driven to make his jurisprudence rigid because of the confusion of previous
writers, Kelsen represents a reaction against the modern schools which have so far widened
the boundaries of jurisprudence that they seem almost conterminous with those of social
science. But while Austin did not consciously formulate a detailed philosophy, Kelsen
admittedly builds on the doctrine of Kant. Most philosophers emphasize that jurisprudence
must study the relationship between law and justice, but Kelsen wishes to free the law from
metaphysical mist with which it has been covered at all times by the speculations on justice
or by the doctrine of ius naturae.

He desires to create a pure science of law, stripped of all irrelevant material, and to separate
jurisprudence from the social sciences as rigorously as did the analysts. The mathematician is
not interested in the way in which men thinks nor is he directly concerned whether his work
is to be used to build a bridge or to work out a new system to break the bank at Monte Carlo:
so the jurist, if he is to be scientific, must study the legal rules abstracted from all social
conditions. Kelsen refuses to define law as a command, for that introduces subjective and
political considerations and he wishes his science to be truly objective. An interesting
example by which to test Kelsen’s theory is the Unilateral Declaration of Independence by
Rhodesia. The Privy Council, as part of the English legal order, naturally decided against the
validity of the Rhodesian emergency powers which had not been laid down in accordance
with the Grundnorm the court accepted. The Rhodesian courts looked at the problem in the
light of the new legal order created by the declaration of independence and relied partly on
the theory of necessity and of the actualities of politics. In other words, these courts in effect
accepted a new Grundnorm for Rhodesia.

According to him;

A] LAW IS A NORMATIVE SCIENCE:

Law norms are ‘ought norms’. According to Kelsen, law is a normative science. But law
norms have a distinctive feature. They may be distinguished from science norms on the
ground that norms of science are norms of being of is’ (sein), while the law norms are
‘ought’(sollen) norms.

B] HIERARCHY OF NORMATIVE RELATIONS:

The science of law to Kelsen is the knowledge of hierarchy of normative relations. According
to Kelsen, a legal order is comprised of norms placed in a hierarchical manner, one norm
placed above another norm and every norm deriving its validity from the norm above it. The
Grund norm is the basic point of the philosophy of Kelsen. The legality or validity of all the
norms can be tested against the Grund norm. The validity of Grund norm can't be objectively
tested. The Grund norm is the common source for the validity to the positive legal order or all
norms that belong to the legal order. The Grund norm must be efficacious i.e., it must be
obeyed by the people at large. Efficacy is the validity of the Grund norm.

C] GRUND NORM:
Kelsen calls it ‘general concentrisation’ of ‘Grund norm’ or the basic norm thus focusing the
law to specific situations. Kelsen’s pure theory of law is based on pyramidal structure of
hierarchy of norms which derive their validity from the basic norm which he termed as Grund
norm. Thus, Grund norm as basic norm determines the content and gives validity to other
norms derived from it. Kelsen has no answer to the question as to whereupon the basic norm
derives its validity. The task of legal theory is only to clarify the relation between Grund
norm and all other inferior norms and not to enter into other questions as goodness or badness
of Grund norm. Jullius Stone rightly comments that as Austin's sovereign in a particular
society is a mere starting point for his legal theory, so also basic norm has to be accepted as a
hypothetical starting point or fiction which gives a legal system countenance and a systematic
form. Kelsen however considers Grund norm as a fiction rather than a hypothesis. Kelsen
recognised the Grund norm need not to be the same in every legal order, but a Grund norm of
same kind there will always be, whether in the form, e.g., of a written constitution or the will
of a dictator. Kelsen has firmly said that a system of law cannot be grounded on two
conflicting Grundnorm. The pure theory of law thus operates with this basic For him the only
task of legal theory is to clarify the relation between the fundamental and all lower norms, but
not to say if this fundamental norm is good or bad.

NORM

To Kelsen, a norm is the meaning of an act of willing by which a certain behaviour is

commanded or permitted or authorized. The meaning of such act of will cannot be
described by the sentiment that the other individual will behave in that way only but he
ought to behave in that way.

ESSENTIALS OF KELSEN’S SYSTEM

The essential foundations of Kelsen’s system maybe enumerated as follows;

∙ The object of a theory of law, as of any science, is to reduce chaos and multiplicity to unity.
∙ Legal theory is a science and not volition. It is knowledge of what the law is and not of
what it ought to be.’
∙ The law is normative and not a natural science.
∙ Legal theory is a theory of norms, and is not concerned with the effectiveness of legal
norms.
∙ A theory of law is formal, a theory of the ordering, changing contents in a specific way. ∙
The relation of legal theory to a particular system of positive law is that of possible to actual
law.
FEATURES OF KELSEN’S THEORY

∙ The theory of law must be ideal with the law as it is and not with the law as it ought to be.
i.e., it must concern with the existing law.
∙ The theory of law is different from the law itself. Law is a mass of heterogeneous rules. The
function of the theory is to distinguish between the different types of the law.
∙ A theory of law must be pure. It must be free from all ambiguities. A theory must explain
all the aspects of law without reference with other subjects like sociology, political science,
economics, history etc., because they are subject to variation from one place to another and
from one time to another. The pure theory which would have the ingredient of only one
discipline, i.e., law.
∙ Law is a norm, which is a prescription norm, the function of which is to prescribe. ∙ Law is
the hierarchy of the norms, and each norm derives its validity from the superior norm.
∙ Finally there comes the highest norm to which all inferior norms derive their validity i.e.,
known as Grund norm.
∙ Kelsen’s approach is much wider than that of Austin, as Kelsen includes; policy, rule,
doctrine and standards in addition to the commands within the purview of the norm.

IMPLICATIONS OF THE KELSEN’S THEORY

The implications of Kelsen’s theory are wide and many. It covers concepts of state,
sovereignty, private and public law, legal personality, right and duty and international law.

LAW AND STATE NOT TWO DIFFERENT THINGS: The most significant feature of
Kelsen’s doctrine is that both the law and state are identical; for him the state is nothing but a
system of human behaviour, an order of social compulsion. It is therefore, redundant to
distinguish between law and state, because every act of state is a legal act. The state as person
is simply the personification of the law. The reality of state is that it is a system regulating the
social behaviour in a normative order. Really speaking, law and state are the same and the
difference between them appears because we look at them from two different points.

NO DIFFERENCE BETWEEN PUBLIC AND PRIVATE LAW: Another very

significant feature that comes out of the hierarchal structure of law is Kelsen’s attack upon
the traditional distinction between public and private law. According to Kelsen, there is no
difference between public and private law when all law derives its force from the same Grund
norm. No distinction between them can be made on the ground that they protect interests of
different nature. Private interests are protected in public interest.

NO INDIVIDUAL RIGHTS: Legal duties are the essence of law, for law is a system of
‘oughts’, whereas legal rights are by an incident. This necessarily severs law from any
associations with political theory of the law, for example, from those which affirm certain
inalienable rights of the individual.

CRITICISM AGAINST KELSEN’S THEORY:

∙ NO PRACTICAL SIGNIFICANCE: Sociological jurists criticize it on the ground that it
lacks practical significance. Professor Laski, says, Granted its postulates, I believe the pure
theory to be unanswerable but I believe also that its substance is an exercise in logic and not
in life’. Some see Kelsen as “beating his luminous wings in vain within his ivory tower.”

∙ PURITY OF NORMS CANNOT BE MAINTAINED: Although Kelsen’s theory has

warmly been recognised, yet most writers point out that it provides no guidance whatever to a
person in the actual application of the law. The quality of purity claimed by Professor Kelsen
for all norms dependent on the basic norm had always been subject of serious attack. In the
most enchanting language of Jullius stone: “….Since that basic norm itself is obviously most
impure, the very ‘purity’ of the subsequent operations must reproduce that original impurity
in the inferior norms, we are invited to forget the illegitimacy of the ancestor in admiration of
the pure blue-blood of the progeny. As absolute purity of any theory of law is a far cry, so
Kelsen had to admit his defeat when it comes to the question of conflicting fundamental
norms.
The question which is the valid fundamental norm, his pure theory cannot avoid, for without
it the whole structure would collapse. Similarly, the “minimum of effectiveness” formulae
which Kelsen chose for him is at bottom nothing else but Jellink’s normative Kraft des
Faktischen. Writing as late as 1942, he himself suspected if his pure theory of law is a
foundation without which the sociological and evaluative inquiries cannot proceed. It is his
pure theory of law which is important as an instrument until the other approaches to law
provide the hypothesis of the basic norm.

HIS GRUND NORM VAGUE AND CONFUSING: The first point in Kelsen’s theory
which is greatly criticised is his conception of Grund norm. But its discovery is a condition
precedent for a successful application of Kelsen’s theory to a legal system. ‘Grund norm’ is
made up of many elements and any one of these elements alone cannot have the title of
Grund norm. Another criticism against the conception of Grundnorm is from the point of
view of the Historical school. But on this point Kelsen finds in Professor Friedmann and
stone very strong advocates of his view. Friedmann says, “The fact that the ultimate authority
in any given legal order may be a composite one, as in the United States of America, or Great
Britain, does not alter the fact that such an ultimate authority must exist”. So far as the
criticism by the jurists of the Historical School is concerned, Kelsen is decidedly a positivist
and therefore, this criticism does not hold good against him.

NATURAL LAW IGNORED: Lauterpacht, an ardent follower of Kelsen, has also from a
different side questioned if the theory of hierarchy of legal norms does not imply a
recognition of natural law principles, despite Kelsen’s blatant warning of natural law
ideology. Many natural law theories do not establish absolute ideals but affirm the principle
of higher norm superior to the positive law.

1.1. (3) HISTORICAL SCHOOL OF JURISPRUDENCE

In opposition to the doctrine of the pure science of law, the historical school considered law
in direct relationship to the life of the community. The historical school in part was a result of
the surge of nationalism that arose at the end of the eighteenth century. Law evolved, as did
language, by a slow process and, just as language is a peculiar product of a nation's genius, so
is the law. Law cannot be understood without an appreciation of the social milieu in which it
has developed, says Savigny. Legislation can succeed only if it is in harmony with the
internal convictions of the race to which it is addressed.

If it goes farther, it is doomed to failure, according to the approach of the historical school.
The slow evolution of law led to a distrust of any attempt to reform the law. Thus the
mercantile community will have an intuitive appreciation of the rules that should govern bills
of exchange, a peasant of the doctrines that should be applied to agriculture.

A] FRIEDRICH CARL VON SAVIGNY (1779-1861)

Law is a product of the people's life-it is a manifestation of its spirit, says Savigny. He
attacked the idea of codification in Germany as he knew the defects of the contemporary
codes. His works, (i) The law of possession. (ii) The History of Roman law in the middle
ages. (iii) The system of modern roman law-testify his genius.

Savigny: Law was determined above all by the peculiar character of a nation, by its "national
spirit". In every people, Savigny pointed out, certain traditions and customs grow up which
by their continuous exercise evolve into legal rules. Law in its proper sense is identical with
the opinion of the people in matter of right and justice. Savigny believed that early
development of law is spontaneous: later on it is developed by jurists and that law develops
like language. He believed that law is a continuous and unbreakable process and justified this
by explaining how the Roman law has developed over time.

Summarising Savigny’s thoughts;

1. Law is found, not made
2. Law develops from a few easily gasped legal relations in primitive communities to the
greater complexity of law in modern civilization,
3. Laws are not of universal application:
4. As laws grow into complexity, the common consciousness is represented by lawyers who
formulate legal principles

Criticism of Savigny’s Theory:

In modern developing societies like India legislation is being used as an important instrument
of social change and social reform. Savigny underestimated the importance of legislation and
took a pessimistic view of human power for creation of law to bring about social change so
he is criticised for his juristic pessimism. While advocating national character of law he
entirely rejected the study of German law and took inspiration from Roman law.
SAVIGNY AND AUSTIN- COMPARISON

It is interesting to note that the two great jurists expounded two different legal theories in
England and Germany somewhat contemporaneously. Besides striking differences there are
some common features in their legal theories: these are;-
1. Both Austin and Savigny are against the rationalism and universalism of the natural law
philosophy.
2. Austin and Savigny's legal philosophy is a reaction and protest against the priori method of
the natural law. Both of them consider law as a scientific or factual reality based on a
posteriori method.
3. Both of them are comparative jurists-Austin basing his law on the study of Roman law and
English law and Savigny propounding his thesis too on the basis of German law and old
Roman law which had been to Germany in sixth century A.D.
4. Both are concerned with the nature of law rather than its functions

B] GEORGE FREDRICK PUCHTA (1798-1856)

The contribution of Puchta lies in the fact that he gave twofold aspects of human will and
origin of the state. Puchta agreed with his teacher, Savigny, that the genesis and unfolding of
law out of the spirit of the people was an invisible process. "What is visible to us is only the
product, law, as it has emerged from the dark laboratory in which it was prepared and by
which it became real."
He started from the evolution of human beings and traced the development of law since that
period. According to him, the idea of law came due to the conflict of interests between the
individual will and general will. The genesis and unfolding of law out of the spirit of the
people was an invisible process. On some points, Puchta improved upon the views of Savigny
and made them more logical.

C] JOSEPH KOHLER (1849-1919)

Joseph Kohler's theory of law is an attempt to revive some of the ideas of Hegel. Kohler
argues that human activity is cultural activity, and that man's task is to create a new
abundance of forms which shall be as a second creation, in juxtaposition to divine creation.
Each form of civilisation, Kohler said, must find the law which best suits its purposes and
aims. There exists no eternal law; the law that is adequate for one period is not so for another.
Dean Pound: Kohler argued that human society is ever changing, and law is a means to
respond favourably to these changes.

He says that there is no eternal law. Kohler advocated a synthesis and reconciliation of
individualism and collectivism in legal control. Pound observes that Kohler's formation of
the jural postulates of the time and place is one of the most important achievements of recent
legal science. Pound observes that Kohler's formation of the jural postulates of the time and
place is one of the most important achievements of recent legal science.
 1.1. (3) SOCIOLOGICAL SCHOOL OF JURISPRUDENCE
Sociology of law is defined in many ways, but its main difference from functional
jurisprudence is that it attempts to create a science of social life as a whole and to cover a
great part of general sociology and political science. Huntington Cairns also attempt to create
a legal science with a dominant emphasis on sociology. He considers that modern
jurisprudence is a meaningless and fruitless pursuit of a goal incapable of achievement.’
Jurisprudence is really an applied science, and no technology has ever succeeded unless it
was based on the findings of a pure science. If jurisprudence wishes to become scientific, it
must create a science of society. Montesquieu laid the seeds of the sociological method in
jurisprudence. Montesquieu researched into the laws and institutions of all kinds of human
society. He considered that law should be based on historical observations, and not merely on
reason or belief.

A] LEON DUGIT:

The French jurist Leon Dugit was a professor of constitution law in the University of
Bordeaux in France. Dugit carried forward the belief that scientific progress can be
accelerated by individual behavior in order to satisfy common social needs and interests.
Durkheim’s main point, on which Dugit built upon, was that he made a distinction between
two kinds of needs of men in society. Therefore, the division of labour was pre-eminent
factor of social cohesion as an indisputable fact beyond ideology, beyond religious or
metaphysical speculation…. The constant realisation of social fact which is simply inter-
dependence of individuals could at least replace ideological quarrels by observable facts.
Dugit attacked traditional concepts of state, sovereignty and law and sought to fashion a new
approach to these matters from the angle of society. Dugit was much influenced by Augste
Comets ‘Theory of law as a fact” which denounced individual rights of man and subordinated
them to social interest.

Dugit built his theory on social solidarity. He insisted on the necessity of viewing social life
as it is actually lived. The most important fact of the society is the interdependence of men.
Each man cannot manufacture and pronounce the necessities of life himself. The end of all
human activities and organisations should be to ensure the interdependence of men. This is
Dugit’s theory of social solidarity. Dugit puts forth in definite and clear term that law arises
of the fact of social existence. Therefore, if man wishes to live and act in society he must act
in conformity with the social law of solidarity. Solidarity is not a rule of conduct; it is a fact-
the fundamental fact of all human society. It means that in fact men are ‘solidarity’ with one
another that is they have common needs which they can only satisfy in common. This
solidarity is mutual interdependence is the product of social reality of social life. As such it is
the duty of one and all to conform his conduct according to fact of social solidarity. He says,
man must so act that he does nothing which may injure social solidarity upon which he
depends, and more positively, he must do all which naturally tends to promote social
solidarity.
Dugit’s principle of social solidarity is however not free from criticism. Aware of the
growing complexity of modern social life, Dugit attacks individualism as reflected in the
conception of inalienable individual rights. Instead he advocates decentralized group
environment and the link between the different groups is to be an objective rule of law, the
principle of social solidarity. This savors of natural law although Dugit emphatically rejects
any such metaphysical conception as incompatible with scientific positivism, yet his idea of
social solidarity is a s strong a natural law ideal as any ever conceived. As Allen puts it,
“although Dugit disregards the ethical element in law, he is considered to be really
postulating a content of ideal law “the natural law with valuable content”. Again the meaning
of the term ‘social solidarity’ is not clear from the analysis of Dugit. We may admit that the
mutual interdependence of men in society and the need to collaborate for the functioning of
social life is a scientific fact. Dugit launched a vigorous attack on the myth of state
sovereignty. The social solidarity is the touch stone of judging the activities of individuals
and all organisations. State is also a human organisation and it is no way different from other
organisations. The state stands in no special position or privilege and it can be justified only
so long as it fulfills its duty. Both are to serve the same end i.e., social solidarity.

B] EUGEN EHRLICH (1862-1922)

While Kohler’s philosophy of law moved on the borderline between sociological

jurisprudence and legal idealism, a thoroughly sociological type of legal theory was
propounded by the Austrian thinker Eugen Ehrlich. According to him, the institution of
marriage, domestic life, inheritance, possession, contract etc., govern the society through
living law which dominates the human life. By living law he meant extra legal controls which
regulate social realities of me. Genuine sociological jurisprudence teaches, in the words of
Northrop, that the “positive law cannot be understood apart from the social norms of the
living law.” The central point of Ehrlich’s thesis is that the law of a community is to be found
in social facts and not in formal sources of law. He says “at present as well as at any other
time, the centre of gravity of legal development lies not in legislation nor in juristic science,
nor in judicial decisions, but in society itself.” Thus living law is the fact which governs life
and a proper study of law requires the study of all the social conditions in which the law
functions in the society.

According to Ehrlich there is no substantial difference between formal legal norms and the
norms of customs or usages, because the sanction behind them is the same (that is social
pressure). Ehrlich meets the facts of growing increasing state activity and a parallel increase
of state norms by distinguishing three types of legal norms. All legal norms regulate in some
way the relation between command and prohibition and the underlying facts of law”.
According to him they;
∙ The protection may simply be given to legal norms purely based on facts of law such as by
laws of association or corporations, or contracts. Closely connected are norms directly
derived from social facts, such as the remedies for damages, unjust enrichment etc.
∙ Legal commands or prohibitions (imposed by the state) may create or deny social facts in
the case of expropriation or multiplication of contracts.
∙ Norms may be entirely detached from social facts, such as imposition of taxes or the
granting of trade concessions and privileges.

To achieve this end, a very close study of the social conditions of the society, in which the
law is to function, is, indispensible. In view of the Ehrlich, a court trial is an exceptional
occurrence in comparison with the innumerable contracts and transactions which are
consummated in the daily life of the community. Only small morsels of real life come before
the officials charged with the adjudication of disputes.

C] AUGUST COMTE (1798-1857)

The legitimate object of scientific study, according to Comte, is society itself and not any
particular institution of government. He stressed the fact that men have ever been associated
in groups and that it was in the social group and not in isolated individuals that the impulses
originated which culminated in the establishment of law and government. He defiantly
rejected the view that society rests upon an individualistic basis and that the individual is the
focal point of law.

1.1.(4) REALIST SCHOOL OF JURISPRUDENCE

Legal realism implies that judicial decisions must conform to socio-economic factors and
questions of policy and values. In America we have the Realist School of jurisprudence.
This school fortifies sociological jurisprudence and recognises law as the result of social
influences and conditions, and regards it as judicial decisions.

A] OLIVER HOMES 1841-1935

Oliver Holmes is, in a sense, an exponent of the realist school. “Law is what the courts do;
it is not merely what the courts say.” Emphasis is on action. As Holmes would have it,
“The life of the law has not been logic; it has been experience.”

B] K. N LLEWELLYN

Karl Llewellyn, in his earlier writings was a spokesman for orthodox realist theory. “The
theory that rules decide cases seems for a century to have fooled, not only library-ridden
recluses, but judges.” He proposed that the focal point of legal research should be shifted
from the study of rules to the observance of the real behaviour of the law officials,
particularly the judges. In his more recent writings, he has placed a somewhat greater stress
on the importance of normative generalization in law, pointing out that the rule part of law is
“one hugely developed part” of the institution, but not the whole of it. He has also, in keeping
with the postulates of sociological jurisprudence, sought to explore the relations and contacts
between the law and the other social sciences, coming to the conclusion that the lawyers as
well as the social scientists have thus failed to make an “effective effort at neighbourliness.”
K. N Llewellyn concentrated rather on the uncertainty in the actual operation of the rules in
appellate courts- he wished to make a sustained and realistic examination of the best practice
and art of the best judges and their judging and he had, in a major work attempted just such a
study. In America, sociological jurisprudence has developed an extreme wing under the name
of the Realist School. The sociological method has brought legal science into intimate
relation with the facts of social life and made jurists recognise law a product of social forces.

Llewellyn, one of the exponents of the realist movement, has set forth the following points as
the cardinal features of American realism;
∙ Realism is not so much a new school of jurisprudence as a new methodology in
jurisprudence.
∙ Realists regard law as dynamic and not as static. They regard law as serving certain social
ends and study any given cross-section of it to ascertain to what extent these ends are being
served.
∙ Realists, for the purpose of observation of the functioning of any part of the legal system
accept a ‘divorce of is from ought”. This means that the ethical purposes which, according to
the observer, should underlie the law, are ignored and are not allowed to blur the vision of
the observer.
∙ Realism emphasises the social effects of laws and of legal decisions.

Another leading realist was Frank (1889-1957) who was known as a “constructive legal
sceptic.” Mr. Justice Cardzo, in his “The Nature of the Judicial Process”, points out that law
never is, but is only about to be. Even existing decisions may be overrules. Law is not
something certain- not what the judges have said, but what they will do.

1.2 Evolution of Civil Legal System & Common Legal System

1.2.1 Code of Hammurabi
1.2.2 The Ten Commandments,
1.2.3 The Roman Foundation of Public Law
1.2.4 Greek (Draconian), Germanian, Canon, Anglo-saxon Laws
 1.3. The Defeat of Absolutism

Absolutism* is a term used by historians to describe a form of monarchical power that is

unlimited by any other institution, such as the church, parliament, or social elites. The
absolute monarch exercises* ultimate authority over the state and his subjects, as both head
of state* and head of government.* In an absolute monarchy there is no constitution or legal
restriction on the monarch's power. Absolute monarchy is normally hereditary* or passed on
through marriage.

European Religious Conflicts of the 16th and 17th Centuries

The Protestant Reformation (1517–1648) had led to a series of violent and bloody wars of
religion, in the course of which thou 15 Similar wars took place in Switzerland, Austria,
Bohemia, the Netherlands, England, Scotland, Ireland and Denmark. Partly because of the
religious wars, but also due to a growing secularization,* religion was losing its grip on
Europe. Inspired by the Renaissance and in particular by the Scientific Revolution,
intellectuals took to thinking outside the boundaries of church ideology; and since changes in
the economy were noticeably increasing the prosperity* of many Europeans, European
society became more and more secular. In this context, absolute monarchies were regarded as
the solution to these violent disorders, and Europeans were more than willing to have local
autonomy* or political rights taken away in exchange for peace and safety.

Decline of Feudalism and Origin of the Early Modern State

At the end of the Middle Ages, Feudalism declined. While the old feudal system had been
defined by a weak monarchy attempting to control the lands of the realm* through mutual
agreements with regional leaders of the nobility, the modern age was characterized by a rise
of the king’s power in some parts of Europe. These kings were soon to become absolute
monarchs with a much greater power over the nobles and the common people. Thus
historians generally regard the growth of the absolute monarchy as the origin of the modern
state. the characteristic features of the modern state were more or less instituted* in the
France of Louis XIV and other contemporary* monarchies in Europe (see below). As for the
economy, the decline of the feudal order also gave rise to the earliest forms of Capitalism.
free trade (i.e. an economic system in which goods and capital are traded in markets and
profits distributed to owners).
An intermediate step on the way to early Capitalism was, for many nations, an economic
system called Mer cantilism* that helped absolutist rulers to centralize the economy. of a
nation was dependent upon its supply of capital, which was best increased through a positive
balance of trade* with other nations. The ruling government should advance this goal by
encouraging exports and discour aging imports, notably through the use of tariffs* and
subsidies*. In return, the taxes paid by the merchants would help to fill the treasury* and thus
give the monarchs the financial power they were looking for.

Features of Absolute Rule:

In order to achieve eagerly awaited stability after long years of war (see above), absolutists
made sure that the key elements of national government would be solely placed into the
hands of the monarch: the armed forces, tax collection, and the judicial* system. These were
powers normally enjoyed by the local nobility in their territor ies; the national administration
of these functions, however, required the formation of a nationwide bureaucracy* whose
officials were answerable to the king alone. Consequently, this new type of bureaucracy had
to make a stand against the most powerful institutional forces opposed to the king: the
nobility, the church, legislative* bodies (parliaments), and regions which had been
autonomous until then. In order to centralize the administration of the state, the absolute ruler
had to – some way or other – take political authority out of the hands of the nobles who had
no desire whatever to give that authority up! Apart from the rise of professional
bureaucracies, absolute states featured a national legislation*, a national jurisdiction,* a large,
standing military under the direct control of the king, and a national tax collection mechanism
in which taxes went straight to the national government (i. They often required the nobles to
live at court for some time, while state officials ruled their lands in their absence. Behind this
was the idea to reduce the effective power of the nobility by making them become reliant
upon the munificence* of the monarch.

Foundations of Royal Absolutism:

Absolute monarchies often gave birth to ideologies that eloquently justified the power
exercised by the absolutist monarch. Political and religious doctrines* of royal absolutism
were either based on the Divine Right of Kings* or a variation of the Social Contract*
Theory.

Divine Right of Kings:

The Divine Right of Kings states that a monarch is subject to no earthly authority since he
derives the right to rule directly from God. As a consequence, he is not subject to the will of
his people, the clergy or the nobility. The Divine Right of Kings implies that whoever might
attempt to remove the king from his office or restrict his powers runs contrary to the will of
God and thus commits heresy.* The first author to come forward with this theory was Jean
Bodin (1530–1596), a French professor of law and political philosopher, who based it on his
interpretation of Roman law. In England the same theory surfaced under the reign of King
James I of England (1603–25). In the book The True Law of Free Monarchies (1598), James
categorically proclaimed his own ideas of kingship, explaining that. However, this does not
mean that kings use their powers arbitarily; James’ read ing of The True Law of Free
Monarchies allowed that “a good king will frame all his actions to be according to the law,
yet is he not bound thereto but of his good will.” During the reign of King Louis XIV of
France, the theory of divine right was strongly promoted by the French bishop and theologian
JacquesBénigne Bossuet (1627–1704). Court preacher to Louis XIV, Bossuet was a strong
advocate of political absolutism. Bossuet states that “God establishes kings as his ministers,
and reigns through them over the people”; at the same time he stresses that “the prince must
be obeyed on principle, as a matter of religion and of conscience”, which practically makes
the king a sacred* person. Although he declares the absolute authority of rulers, Bossuet
underlines the fact that the king is not above the law, “for if he sins, he destroys the laws by
his example.” The theory of divine right disappeared in England after the Glorious
Revolution of 1688.

Social Contract Theory:

The idea of the social contract is based on a reciprocal* agreement: the people transfer some
of their rights to a government or ruler in order to receive social order and peace through the
rule of law. In his book Leviathan (1651), Hobbes argues for a social contract and rule by an
absolute monarch. According to Hobbes, life without a strong central government would lead
to chaos and civil war (bellum omnium contra omnes, “the war of all against all”) since, in
this “state of nature”, each person has the natural right to everything. To escape from the state
of nature, people agree on a social contract and thus establish a society. All individuals in that
society transfer their natural rights to the monarch for the sake of protection. But peace comes
at a stiff price: any abuse of power by bad rulers has to be accepted.

Historical Examples of Absolutism:

The most prominent monarch who fully embodied absolutist principles was Louis XIV,
called the Sun King, who ruled France from 1643 to 1715. Many countries and monarchs
turned to him as a role model for the modern government, while some countries, such as
England, opposed this role model. Most of the practices of the modern state were more or less
instituted in the France of Louis XIV: in particu lar a strong government with Paris and the
Royal Palace at Versailles as centre points, a centralized bureaucracy, a large standing
military, and an efficient tax system that helped to restock the king’s financial supplies.
Another country subject to absolute rule was Brandenburg Prussia. Frederick William of
Hohenzollern (1640–1699, known as the Great Elector*) used the chaos resulting from the
Thirty Years’ War to consolidate his territories in northern Germany, while at the same time
increasing his power over his subjects. In order to achieve political unity, he built a large
standing army (which would eventually become the largest army in the European world), and
he established a centralized tax system.

Beginning with Leopold I (1658–1705), the Hapsburg Archdukes* tried to centralize the
government of Austria and break the power of the noble landlords. In exchange for this law,
the landlords gave away the powers of their regional assemblies to the central government in
Vienna. Until 1905, the Czars* of Russia also governed as absolute monarchs. ity and
strengthened the power of the Czar, establishing a central bureaucracy and a police state.
While Europe steadily developed strong, absolutist monarchies, there was one exception to
the rule. When James I (1603–1625) became King of England after the death of Elizabeth I,
he tried to introduce the ideas which he had already put forward in his book The True Law of
Monarchies (see above). Public fears that his son Charles I (1625–1649) was actually
attempting to establish absolute rule in England was a major cause of the English Civil War
(1641–1651), the execution of Charles I and the temporary establishment of the Common
wealth. Finally, at the end of the 17th century, England experienced the irrevocable erosion
of the monarch’s powers as a result of the Glorious Revolution.* By signing the Bill of
Rights in 1689, the new king, William III, had to accept his limited powers within the
framework of a constitutional monarchy.
Enlightened Absolutism:

Enlightened absolutism is a form of absolute monarchy in which rulers were influenced by

the Age of Enlightenment.* Enlightened monarchs tended to allow religious toleration,
freedom of speech and the press, and the right to hold private property. Most of them
patronized the arts, sciences, and education. Their ideas about royal power were often similar
to those of absolute monarchs, in as much as they believed that they were entitled to govern
by right of birth and generally refused to grant constitutions. However, she took up many
ideas of the Enlightenment: she introduced laws for the emancipation of peasants and was a
great patron* of the arts in Imperial Russia. She also incorporated many ideas of enlightened
philosophers, especially Montesquieu, in her Nakaz, a blueprint for a modern law code.
Frederick II (the Great, 1740–1786) of Prussia was tutored in the ideas of the Enlightenment
in his youth. Frederick modernized Prussian bureaucracy and civil service and promoted
religious tolerance throughout his realm. He patronized the arts and philosophers. Because of
his influence, Prussia’s education system became one of the best in Europe. His ideas can be
best summed up by his concept of the monarch as the “first servant of the state” (Ich bin der
erste Diener meines States)

Absolutism Today:

The popularity of the idea of absolute monarchy declined noticeably after the French
Revolution (1789), which promoted theories of government based on the sovereignty of the
people* rather than of the monarch. As a result, many former absolute monarchies have
become constitutional monarchies (or even parliamentary republics).

Among the very few nations in which the monarch still claims full power (being both head of
state and government) are Brunei, Oman, Qatar, Saudi Arabia, Swaziland, and Vatican City.
André Krowke

Module II

Modern System of Governance

2.1. Constitutionalism:

Introduction

Constitutionalism is a philosophy which is essential for a democratic setup. It ensures that

the freedoms of the individual are given primacy and the State does not encroach upon the
liberty of the citizen. It ensures that the government is limited and prevents it from turning
the
democratic setup into dictatorial and authoritative.
Meaning:
Constitutionalism recognises the need for a government but at the same time also insists upon restraining
its (government’s) power. According to Michel Rosenfeld, there is “no accepted definition of
constitutionalism but, broadly, modern constitutionalism requires imposing limits on the powers of
government, adherence to the rule of law, and the protection of fundamental rights”. Constitutionalism
calls for restriction on the arbitrary power of the State. Constitutionalism means “legal limitation on It is
the antithesis of arbitrary rule. Its opposite is a despotic government, the government of will instead of the
law.Thus constitutionalism means the limitation of government by law. Magna Carta (1215) implies
Constitutionalism. and Democracy that Constitutionalism is built on a simple idea, that the government is
organised by people and operated on behalf of the people, but is subject to a series of restraints which
attempt to ensure that the power which is needed for such governance is not abused by those who are
called upon to do the governing.
Elements of constitutionalism

According to Louis Henkin Constitutionalism implies,

Popular sovereignty, The supremacy of the Constitution and Rule of Law, Political
Democracy,
Representative Limited Government, Separation of Power, Civilian Control of the Military
force, Police governed by Law and Judicial Control, An Independent Judiciary
All these elements restrict the power of the State in a particular way. According to Michel
Rosenfield, modern Constitutionalism requires limits on the power of the government along
with the adherence to the Rule of Law and protection of Fundamental Rights.

NEGATIVE AND POSITIVE CONSTITUTIONALISM:

Negative constitutionalism : It is to be noted that the traditional idea of Constitutionalism

(as
stated above) is a Negative notion of Constitutionalism. Nick Barber calls it “negative
Constitutionalism”. In law, a negative understanding of an idea means when it prevents an
entity from doing a certain act. The traditional understanding of Constitutionalism fails to
explain the positive role that the States play. The common understanding of
Constitutionalism is negative in nature because it considers Constitutionalism as only
restricting and limiting the power of the state. From the prism of negative Constitutionalism,
a State is a danger that needs to be constrained. The role of law is to limit the dangerous
capacities of the executive and legislative branches. For instance, the purpose of Separation
of power is to protect the
liberty of citizens, by restricting the arbitrary action of the state.

Negative Constitutionalism requiring a constitutional structure which prevents the State

action is not always desirable. This understanding of Constitutionalism makes it harder for
the state to provide health-care and poverty alleviation schemes, which requires government
intervention. Thus it is not desirable especially in India which is a welfare state and which
aspires to social and economic justice as well along with political justice.

It is because of this that Jeremy Waldron criticises negative Constitutionalism as being anti-
democratic. For Waldren, this understanding of Constitutionalism is fundamentally flawed.
For him, this understanding of Constitutionalism is against the notion of Egalitarianism
which for Waldron is at the core of a Democracy.

Positive constitutionalism:

Positive Constitutionalism challenges the understanding of seeing Constitutionalism entirely

in terms of limits upon the State. The positive aspect of Constitutionalism requires the State
to be seen in the light of a “Welfare State”. The positive version of Constitutionalism requires
the creation of effective and competent state institutions to ensure the well being of its
citizens.

According to M.P. Singh if a Constitution ignores accommodation and respect for diversity
and plurality in a society then it fails to meet the requirement of constitutionalism. Several
older constitutions that have ignored this aspect of constitutionalism have introduced it either
through judicial interpretations, amendments, appropriate legislation and constitutional
application.
Need for constitutionalism:

The requirement of Constitutionalism as a limitation on the power of the state has been
explained by Prof. B. O. Nwabueze in his book “Constitutionalism in the Emergent States,
1973. According to him “ the last 30 years (starting from 1973) has demonstrated that the
greatest danger to constitutional government in emergent states arises from the human factor
in politics”, specifically “from the capacity of politicians to distort and vitiate whatever
governmental forms may be devised”.

According to him, “a lot depends upon the actual behaviour of these individuals and upon
their willingness to observe the rules. He says that “the successful working of a constitution
depends upon the ’democratic spirit’, that is, a spirit of, fair play, self-restraint and mutual
accommodation of differing interests and opinions. There can be no constitutional
government unless the wielders of power are prepared to observe the limits upon
governmental powers”.

In S.R. Chaudhuri v. State of Punjab (2001), constitutional restraints must not be ignored or
bypassed if found inconvenient or bent to suit “political expediency”. We should not allow
the erosion of principles of constitutionalism.

In New India Assurance Company Ltd. v. Nusli Neville Wadia (2007), the Court said that
“For proper interpretation of Constitutional provisions not only the basic principles of natural
justice have to be borne in mind, but also principles of constitutionalism involved therein.”

A constitution is no guarantee for constitutionalism:

A written Constitution is no guarantee for Constitutionalism. Even Nazi Germany had a

constitution but that does not mean that it adhered to the philosophy of Constitutionalism be
it a negative or positive aspect of it.

As the Supreme Court said in S.R. Chaudhuri v. State of Punjab (2001) “the mere existence
of a Constitution, by itself, does not ensure constitutionalism. What is important is the
political traditions of the people and its spirit and determination to work out its constitutional
salvation through the chosen system of its political organisation.”

Unless primacy to democratic policies and individual rights is not given Constitutionalism
cannot survive. Subtle assaults to individual rights especially freedom of Speech and
Expression and privacy, such as sedition laws, surveillance laws, undermine
Constitutionalism.

Again in R.C. Poudyal v. Union of India (1994) court said that,

“Mere existence of a Constitution, by itself, does not ensure constitutionalism or a
constitutional culture. It is the political maturity and traditions of people that give meaning to
a Constitution which otherwise would merely embody the political hopes and ideals”.

For constitutionalism, a constitution needs to have some qualities which would either restrain
the government from acting against its citizens or compel it to act for securing a dignified life
to each one of them Constitutionalism in India. Various Constitutional provisions contain in
itself, inter-alia the philosophy of Constitutionalism.

A state by the constitution:

The Indian State is a result of the Constitution of India. Indian Constitution not just provides
the rights and immunities to the citizen, but it also delineates the character and structure of
the Indian State. Therefore it can also be said that the powers and extent of the Indian State
are limited by the Constitution. Its actions are guided by the Directive Principle of State
Policy. The Indian State cannot function beyond what the Constitution provides.

Article 21 and due process of law

Article 21 of the Indian Constitution provides that life and liberty cannot be deprived except
by a procedure established by law. This means that there has to be a legal justification for the
deprivation of life and liberty of a person. The requirement of law for deprivation acts as a
limitation on the arbitrary exercise power of the legislature as well as the executive.

Further such a law should not be just a mere prescription, it must conform to the American
Due
Process which involves law to have the element of “Fundamental Fairness”.

In Swaran Singh v. State of U. P. (1998) the Court observed that public power, including
constitutional power, must never be exercised arbitrarily or malafide, and ordinarily
guidelines for fair and equal execution are guarantees of valid use of power. The power being
of the greatest moment, cannot be a law unto itself but it must be informed by the finer
canons
of constitutionalism. These requirements of Law and of Due process restrict the power of the
state. Any violation of these principles would enable the courts to strike down the law.

Fundamental rights:

Fundamental rights are the most basic bulwark against the arbitrary exercise of the power of
the state. Fundamental Rights act as restraints on the states, directing states what not to do.
They serve as negative covenants for the state.

In IR Coelho v. State of Tamil Nadu and Ors (2007) court observed that the principle of
constitutionalism is now a legal principle which requires control over the exercise of
Governmental power to ensure that it does not destroy the democratic principles and these
democratic principles include protection of Fundamental Rights. The principle of
constitutionalism is based on the principle of legality which requires the Courts to interpret
the legislations on the presumption that the Parliament would not intend to legislate contrary
to fundamental rights. The Legislature can restrict fundamental rights but it is impossible for
laws
protecting fundamental rights to be impliedly repealed by future statutes.

For instance, no law can be made by the state which treats two people who are situated in
equal circumstance unequally since it will amount to a violation of Article 14 of the Indian
Constitution. Similarly, Freedom of Speech and expression under Article 19(1)(a) can be
restricted only on the ground mentioned in Article 19(2) only i.e. It can be restricted only if
the sovereignty and integrity of India, the security of the State, friendly relations with foreign
states, or public order, decency or morality is threatened or if the speech is in relation to
contempt of court, defamation or incitement to an offence. The freedom of speech cannot be
restricted by the state on any other grounds. Thus, these restrictions on speech act as
limits on the power of the state in the sense that it delineates the extent to which the state can
curb freedom of speech.

Written constitution

Indian Constitution being written, codified and regarded as supreme law of the land, the
Indian State is thus controlled and restricted. Restricted in the sense that it cannot go beyond
the limits and mandate of the Indian Constitution. The mandate of the state cannot go beyond
the Directive Principles of State Policy, enshrined in Part IV of the Indian Constitution. Being
a written Constitution it firstly provides for a limited government, which is the core of
Constitutionalism. The sovereign powers are divided among 3 organs of the government.
Powers of each organ are defined by the constitution and no organ or its instrumentalities can
transgress its limits.

Further, a written Constitution provides for fundamental law of the land and thus the
legislature is bound by the Constitutional principles. The legislature cannot make a law which
violates the Constitution. Thus the power of the Constitution is restricted.

In the State (NCT of Delhi) v. Union of India (2018), the court said that:

“The constitutional functionaries owe a greater degree of responsibility towards this eloquent
instrument for it is from this document that they derive their power and authority and, as a
natural corollary, they must ensure that they cultivate and develop a spirit of
constitutionalism where every action taken by them is governed by and is in strict conformity
with the basic
tenets of the Constitution”.

Separation of power
Separation of powers means that the powers of the state are divided among the three principal
organs of the government, which are “the Executive”, “the Legislature”, and “the Judiciary”.
Each of the organs is restricted to transgress its limits and this system ensures a check on the
power of the other, thus restraining them from acting arbitrarily and unreasonably, without
due regard to due process.

In the State (NCT of Delhi) v. Union of India (2018), Chief Justice Mishra observed that
“The essence of constitutionalism is the control of power by its distribution among several
state organs or offices in such a way that they are each subjected to reciprocal controls and
forced to cooperate in formulating the will of the state.

Conclusion

The design and character of the Indian Constitution ensure that the powers of the Executive
and the Legislature is limited so that the discretion given to these organs does not turn into
arbitrariness, an arbitrary exercise. The Fundamental Rights, the basic structure, federal setup
of the administration, the amendment procedure all limit the State in aparticular way.

2.2. RULE OF LAW: PRACTICE AND PRINCIPLES:

Rule of law denotes a government of laws and not of men. Individuals working within the
state machinery are expected to exercise their official duties and responsibilities in
accordance with the law. In other words, rule of law represents the supremacy of law.

According to Dicey, rule of law envisages the following:-

• No one is punishable except for a distinct breach of law established in

the ordinary legal manner before the ordinary courts of the land;

• No person is above the law;

• Courts play a vital role in protecting the rights of individuals.

A- No one is punishable except for a distinct breach of law established in the ordinary
legal manner before the ordinary courts of the land:-

The first component of rule of law is related to the principle of legality. If a certain behavior
is not categorized as a criminal act by the constitutionally mandated lawmaking organ, it is
not treated as a criminal act and is not punishable. It is treated as an innocent act. Secondly
for an act to be punishable, the act must be classified or identified as a criminal act by the
legislature through the law-making process enshrined in a constitution and other laws.
Finally, once a certain behavior is classified as a criminal act, the accused should be tried and
punished by the
ordinary courts. Ordinary courts refer to courts established in accordance with a country’s
constitution. It may not include any extra-judicial or extra-ordinary court not recognized by
the constitution of the land.

B- No one is above the law

These words express the absolute supremacy of law over arbitrary power including
widespread discretionary power of government. We are all human beings created in the
image of God, and we should be treated equally before or under the law without
discrimination on the basis of status, wealth, race, nationality, gender, sex, etc. Every person
from a president down to a shoe-
shiner should equally become subject to the law.

Similarly, even though avoidance of discretionary power is totally impossible, the manner in
which such power is to be exercised is strictly monitored. Discretionary power is one of the
reasons for the prevalence of corruption. According to Professor Klitgaard, corruption is
defined as monopoly of power plus discretion minus accountability.

C- Rights are based on the actual decision of courts

According to Dicey, the mere recognition of rights in a constitution alone does not secure or
ensure the rights of an individual. The rights recognized by a constitution and other laws are
to be protected or defended through the medium of courts whenever these rights are
infringed.
2.3 Separation of Power
2.4 Federal v. Unitary
2.5 The Republican Age
2.6 The American Model- Popular Sovereignty, Limited Power
2.7. The French Model- The national Sovereignty
2.8. New Public Law- Rule-making by transnational Bodies
2.9. Global model of constitutional rights

Module III: Adjudication in Common Legal System and Civil Legal System

3.1. Nature of Rights, Justification of Rights,

3.1.1Definition, Content and Scope of Rights
3.2.1The Concept of Natural Justice and its comparative interpretation under the
Constitutions of India, UK, USA and Canada.

Natural Justice implies fairness, reasonableness, equity and equality. Natural Justice is a
concept of Common Law and it is the Common Law world counterpart of the American
concept of ‘procedural due process’. Natural Justice represents higher procedural principles
developed by judges which every administrative agency must follow in taking any decision
adversely affecting the rights of a private individual.

Natural Justice meant many things to many writers, lawyers and systems of law. It is a concept of changing
content. that at a given time no fixed principles of Natural Justice can be indentified. The principles of
Natural Justice through various decisions of courts can be In a Welfare State like India, the role and
jurisdiction of The concept of Rule of Law would loose its validity if the instrumentalities of the State are
not charged The principles of natural justice are firmly grounded under various Article of With the
introduction of the concept of substantive and procedural due process in Article – 21 of the Constitution all
that fairness which is included in the principles of natural justice can be read into Article – 21 when a
person is deprived of his life and personal liberty In other areas it is Article – 14 which incorporates the
principles of natural justice. Article – 14 applies State action. Because violation of natural justice results in
arbitrariness therefore violation of natural justice is violation of Equality Clause of Article – 14. Therefore,
now the principle of natural justice cannot be wholly disregarded by law because this would violate the
fundamental rights guaranteed by Articles 14 and 21.
Define ‘Natural Justice’.
What is the constitutional basis of the principles of Natural Justice.
State two main principles of Natural Justice.

Rule against Bias:

Therefore, the ‘Rule Against Bias’ strikes against those factors which may improperly
influence a judge in arriving at a decision in any particular case. The requirement of this
principle is that the judge must be impartial and must decide the case objectively on the basis
of the evidence on record. Therefore if a person, for whatever reason, cannot take an
objective decision on the basis of evidence on record he shall be said to be biased. A person
cannot take an objective decision in a case in which he/she has an interest for, as human
psychology tells us, very rarely can people take decisions against their own interests. This
rule of disqualification is applied not only to avoid the possibility of a partial decision but
also to ensure public confidence in the impartiality of the administrative adjudicatory process
because not only must “no man be judge in his/her own cause” but also “justice should not
only be done but should manifestly and undoubtedly be seen to be done”. Minimal
requirement of natural justice is that the authority must be composed of impartial persons
acting fairly and without prejudice and bias.

A] Personal Bias:

Personal Bias arises from a certain relationship equation between the deciding authority and
the parties which incline him/her unfavourably or other-wise on the side of one of the parties
before him/her. In a case, the Supreme Court quashed the selection list prepared by the
Departmental Promotion Committee which had considered the confidential promotion.
However, in order to challenge administrative action successfully on the ground of ‘personal
bias’, it is essential to prove that there is a “reasonable suspicion In this area of bias the real
question is not whether a person was biased. It is difficult to prove the state of mind of a
person. Therefore, what the Courts see is whether there is reasonable ground for believing
that the deciding officer was likely to have been biased. In deciding the question of bias
judges have to take into consideration the human possibilities and the ordinary course of
human conduct. But there must be real likelihood of bias and not mere suspicion of bias
before the proceedings can be quashed on the ground that the person conducting the
proceedings is disqualified by bias.

B] Pecuniary Bias
The judicial approach is unanimous and decisive on the point that any financial
disqualification will not be avoided by non-participation of the biased member the decision of
the Textbook Selection Committee because some of its members were also authors of books
which were considered for selection when the decision was reached.

C] Subject Matter Bias:

Those cases fall within this category where the deciding officer is directly, or otherwise,
involved in the subject matter of the case. Here again mere involvement would not vitiate the
administrative action unless there is a real likelihood of bias. In a case the Supreme Court
quashed the decision of the Andhra Pradesh Government, nationalizing road transport on the
ground that the Secretary of the Transport Department who gave hearing was interested in the
subject-matter.

D] Departmental Bias:

The problem of ‘departmental bias’ is something which is inherent in the administrative

process, and if it is not effectively checked, it may negate the very The problem of
‘departmental bias’ also arises in a different context, when the functions of judge and
prosecutor are combined in the same department. In a case, the Supreme Court quashed the
notification of the Government which had conferred powers of a Deputy Superintendent of
Police on the General Manager, Haryana Roadways in matters of inspection of vehicles on
the ground of departmental bias. In this case private bus operators had alleged that the
General Manager of Haryana Roadways who is a rival in business in the State, cannot be
expected to discharge his duties in a fair and reasonable manner he would be too lenient in
inspecting the vehicles belonging to his own department. The reason for quashing the
notification according to the Supreme Court was the conflict between the duty and the
interest of the department and the consequential erosion of public confidence in
administrative justice.

The reason for quashing the notification according to the Supreme Court was the conflict
between the duty and the interest of the department and the consequential erosion of public
confidence in administrative justice.

E] Preconceived Notion Bias:

‘Bias’ arising out of preconceived notions is a very delicate problem of administrative law.
On the one hand, no judge as human being is expected to sit as a blank sheet of paper, on the
other, preconceived notions would vitiate a fair trial. The problem of bias arising from
preconceived notions may have to be disposed of as an inherent limitation of the
administrative process It is use less to accuse a public officer of bias merely because he is
predisposed in favour of some policy in the public interest.

However, the term ‘bias’ must be confined to its proper place If ‘bias’ arising out of
preconceived notions means the total absence of preconceptions in the mind of the judge,
then no one has ever had a fair trial and no one ever will. Therefore, unless the strength of the
preconceived notions is such that it has the capacity of foreclosing the mind of the judge,
administrative action would not be vitiated.

1. Define the term ‘Bias’.

2. Give one example each of the followings:
(a) ‘Pecuniary Bias’
(b) ‘Subject-matter Bias’
(c) ‘Departmental Bias’
3.List the various aspects of ‘Bias’.

RULE OF FAIR HEARING:

The Rule simply implies that a person must be given an opportunity to defend
himself/herself. Corollary deduced from this rule is “Qui aliquid statuerit, parte inaudita
altera aeuquum licet dixerit, haud aequum facerit” (he who shall decide anything without the
other side having been heard although he may have said what is right will not have done what
is right). The same principle was expressed by Lord Hewart when he said, “ It is not merely
of some importance, but is of Techniques of Law fundamental importance that justice should
not only be done, but should manifestly and undoubtedly be seem to be done’’.
Administrative difficulty in giving notice and hearing to a person cannot provide any
justification for depriving the person of opportunity of being heard. Furthermore, observance
of the rules of natural justice has no relevance to the fatness of the stake but is essentially
related to the demands of a given situation.

A] RIGHT TO NOTICE:

It is not enough that the notice in a case be given, but it must be adequate also. But generally
a notice in order to be adequate must contain the following : The test of adequacy of ‘Notice’
will be whether it gives sufficient information and material so as to enable the person
concerned to put up an effective defence. Therefore, the contents of notice, persons who are
entitled to ‘Notice’ and the time of giving ‘Notice’ are important matters to ascertain any
violation of the principles of natural justice. Sufficient time should also be given to comply
with the requirement of notice. In the same manner where notice contained only one charge,
the person cannot be punished for any other charge for which notice was not given. However,
the requirement of notice will not be insisted upon as a mere technical formality, when the
concerned party clearly knows the case against him and is not thereby prejudiced in any
manner in putting up an Effective defence.

B] RIGHT TO PRESENT CASE AND EVIDENCE:

The adjudicatory authority should afford reasonable opportunity to the party to present
his/her case. The requirements of natural justice are met only if opportunity to represent is
given in view of the proposed action. The demands of natural justice are not met even if the
very person proceeded against has been fur-nished information on which the action is based,
if it is furnished in a casual way or for some other purposes. The Courts are unanimous on the
point that oral hearing is not an integral part of fair hearing unless the circumstances are so
exceptional that without oral hearing a person cannot put up an effective defence. Therefore,
where complex legal and technical questions are involved or where stakes are very high oral
hearing shall become a part of fair hearing. Thus, in the absence of a statutory requirement
for oral hearing courts will decide the matter taking into consideration the facts and
circumstances of every case.

C] THE RIGHT TO REBUT ADVERSE EVIDENCE:

The right to rebut adverse evidence presupposes that the person has been informed about the
evidence against him. This does not, however, necessitate the supply of adverse material in
original in all cases. It is sufficient if the summary of the contents of the adverse material in
made available provided it is not misleading. The opportunity to rebut evidence necessarily
involves the consideration of two factors: cross-examination and legal representation.

D] CROSS-EXAMINATION:

‘Cross-examination’ is the most powerful weapon to elicit and establish truth. However, the
Courts do not insist on ‘cross-examination’ in administrative adjudication unless the
circumstances are such that in the absence of it the person cannot put up an effective defence.
Where the witnesses have orally deposed, the refusal to allow cross-examination would
certainly amount to violation of the principles of natural justice. In the area of labour relations
and disciplinary proceedings against civil servants also, the right to cross-examination is
included in the rule of fair hearing.

E] LEGAL REPRESENTATION:

Normally representation through a lawyer in any administrative proceeding is not considered

an indispensable part of the rule of natural justice as oral hearing is not included in the
meaning of fair hearing. This denial of legal representation is justified on the ground that
lawyers tend to complicate matters, prolong the proceedings and destroy the essential
informality of the proceedings. It is further justified on the ground that the representation
through a lawyer of choice would give edge to the rich over the poor who cannot afford a
good lawyer. To what extent legal representation would be allowed in administrative
proceedings depends on the provisions of the Statute.

F] REPORT OF THE INQUIRY TO BE SHOWN TO THE OTHER PARTY:

Under these circumstances a very natural question arises is that whether the copy of the
report of the inquiry officer be supplied to the charged employee before final decision is
taken by the competent authority? Therefore, administrative law question in disciplinary
matter has always been whether failure to supply the copy of the Report of the Inquiry to the
delinquent employee before final decision is taken by the competent authority would violate
the principles of natural justice? In the same manner the constitutional question in such a
situation will be whether failure to supply the copy of the Report of the Inquiry to the
delinquent would violate the provisions of Article – 311(2) of the Constitution of India?
Article – 311(2) of the Constitution provides that no government employee can be dismissed
or removed or reduced in rank without giving him/her a reasonable opportunity of being
heard in respect of charges framed against him/her.
Therefore, it has always been a perplexing question whether failure to supply the report of the
inquiry officer to the charged government employee before final decision is taken would
amount to failure to provide “reasonable opportunity” as required under Article 311(2)
Another Constitutional question that can be asked in such a situation would be whether any
final action taken by the authority on the basis of the report of the inquiry without first
supplying the copy of it to the delinquent would be arbitrary and hence violative of Article –
14 of the Constitution which enshrines the great harmonizing and rationalizing principle?
Neither the findings nor the recommendations are binding on the Disciplinary Authority.
The Inquiry Report along with the evidence recorded by the inquiry officer constitute the
material on which the government has ultimately to act. For example, in the matters relating
to major punishment, the requirement is very strict and full-fledged opportunity is envisaged
under the statutory rules before a person is dismissed removed or reduced in rank, but where
it relates to only minor punishment, a mere explanation submitted by the delinquent officer
concerned meets the requirement of principles of natural justice.

G] POST DECISIONAL HEARING:

‘Pre-Decisional Hearing’ is the standard norm of rule of audi alteram partem. But ‘Post-
Decisional Hearing’ affords an opportunity to the aggrieved person to be heard. However,
‘post-decisional hearing’ should be an exception rather than being the rule itself. It is
acceptable in the following situations:
1. where the original decision does not cause any prejudice or detriment to the person
affected;
2. where there is urgent need for prompt action; and
3. where it is impracticable to afford pre-decisional hearing.

The idea of ‘Post-Decisional Hearing’ has been developed to maintain a balance between
administrative efficiency and fairness to the individual. The petitoner, being aggrieved by
such artbitary action of the government filed a petition before the Supreme Court under
Article-32 challenging the validity of the impoundment order. One of the contentions of the
government Techniques of Law was that the rule of audi alterm partem must be held to be
excluded because it may frustrate the very purpose of impounding the passport. Though the
court had not quashed the order outrightly but has developed the technique of ‘Post-
Decisional Hearing’ in order to balance such situations to provide a fair opportunity of being
heard immediately after serving the order impounding the passport; which would satisfy the
mandate of natural justice.

Define ‘Rule of Fair Hearing’.

Discuss the main components of a ‘Valid Notice’.

REASONED DECISIONS OR SPEAKING ORDERS:

The third principle of Natural Justice which has developed in course of time is that the order which is
passed affecting the rights of an individual must be a speaking order. A bald order requiring no reason to
support it may be passed in an arbitrary and irresponsible manner. It is a step in furtherance of achieving
the end where society is governed by Rule of Law. The other aspect of the matter is that the party, against
whom an order is passed, in fair play, must know the reasons of passing such order. It has a right to know
the reasons. The orders against which appeals are provided must be speaking orders. They may not be very
detailed and lengthy orders but they must at least show that the mind was applied and for the reasons,
howsoever briefly they may be stated, the order by which a party aggrieved is passed. The Supreme Court
has many times taken the view that non-speaking order amounts to depriving a party of a right of appeal.

EXCEPTIONS TO THE RULE OF NATURAL JUSTICE:

Application of the Principles of Natural Justice can be excluded either expressly or by

necessary implication subject to the provisions of Articles 14 and 21 of the Constitution.
Therefore, if the Statute, expressly or by necessary implication, precludes the rules of natural
justice it will not suffer invalidation on the ground of arbitrariness.

A] EXCLUSION IN EMERGENCY:

However, the administrative determination of an emergency situation calling for the

exclusion of rules of natural justice is not final. The courts may review the determination of
such a situation. Natural Justice is pragmatically flexible and is amenable to capsulation
under compulsive pressure of circumstances. It is in this context that the Supreme Court
observed: “Natural Justice must be confined within their proper limits and must not be
allowed to run wild.

B] EXCLUSION IN CASES OF CONFIDENTIALITY:

In a case the Supreme Court held that the maintenance of surveillance register by the police is
a confidential document. Furthermore, the court observed that the observance of the
principles of natural justice in such situation may defeat the very purpose of surveillance and
Techniques of Law there is every possibility of the ends of justice being defeated instead of
being served. Union of India where the Supreme Court held that no opportunity of being
heard can be given to an Additional Judge of a High Court before his name is dropped from
being confirmed. It may be pointed out that in a country like India surveillance may provide a
very serious constraint on the liberty of the people, therefore, the maintenance of the
surveillance register cannot be so utterly administrative and non-judicial that it is difficult to
conceive the application of the rules of natural justice.
C] EXCLUSION IN CASE OF ROUTINE MATTERS:

A student of the university was removed from the rolls for unsatisfactory academic
performance without giving any pre-decisional hearing. The Supreme Court held that the
very nature of academic adjudication appears to negative any right of an opportunity to be
heard. Therefore if the competent academic authorities examine and assess the work of a
student over a period of time and declare his work unsatisfactory, the rules of natural justice
may be excluded. In the same manner when the Commission cancelled the examination of the
candidate because, in violation of rules, the candidate wrote his roll number on every page of
the answer, the Supreme Court held that the principles of natural justice are not attracted.

D] EXCLUSION BASED ON IMPRACTICABILITY:

Rules of Natual Justice may be exluded on the grounds of administrative impracticability. For
example in a case where the entire M.B.A. entrance examination was cancelled by the
university because of mass copying, the court held that notice and hearing to all the
candidates is not possible in this situation, which has assumed national proportions. Thus the
court sanctified the exclusion of the rules of natural justice on the ground of administrative
impracticability.

E] EXCLUSION IN CASES OF INTERIM PREVENTIVE ACTION:

If the action of the administrative authority is a suspension order in the nature of a preventive
action and not a final order, the application of the principles of natural justice may be
excluded. The Delhi High Court held that such an order could be compared with an order of
suspension pending enquiry which is preventive in nature in order to maintain campus peace
and hence the principles of natural justice shall not apply. Therefore, natural justice may be
excluded if its effect would be to stultify the action sought to be taken or would defeat and
paralyse the administration of the law. Union of India observed : “Where an obligation to
give notice and opportunity to be heard would obstruct the taking of prompt action, especially
action of a preventive or remedial nature, right of prior notice and opportunity to be heard
may be excluded by implication.”

F] EXCLUSION IN CASES OF LEGISLATIVE ACTIONS:

Legislative action, may be plenary or subordinate, is not subjected to the rules of natural
justice because these rules lay down a policy without reference to a particular individual. On
the same logic principles of natural justice can also be excluded by a provision of the
Constitution also. Constitution of India excludes the principles of natural justice in Articles
22, 31(A), (B), (C) and 311(2) as a matter of policy. Nevertheless if the legislative action is
arbitrary, unreasonable and unfair, courts may quash such a provision under Articles 14 and
21 of the Constitution. In a case the Supreme Court held that no principles of natural justice
have been violated when the government issued notification fixing the prices of certain drugs.
The Court reasoned that since notification flowed from a legislative act and not an
administrative one so the principles of
natural justice do not apply.

G] WHERE NO RIGHT OF THE PERSON IS INFRINGED:

Where no right has been conferred on a person by any statute nor any such right arises from
common law, the principles of natural justice are not applicable. This can be illustrated by
referring a decision of the Supreme Court The Delhi Rent Control Act makes provision for
the creation of limited tenancies. Sections 21 and 37 of the Act provide for the termination of
limited tenancies. Combined effect of these sections is that after the expiry of the term a
limited tenancy can be terminated. The Supreme Court held that after the expiry of the
prescribed period of any limited tenancy, a person has no right to stay in possession and
hence no right of his is prejudicially affected which may warrant the application of the
principles of natural justice.

H] EXCLUSION IN CASE OF STATUTORY EXCEPTION OR NECESSITY

TECHNIQUES OF LAW:
Disqualification on the ground of bias against a person will not be applicable if he is the only
person competent or authorized to decide that matter or take that action. If this exception is
not allowed there would be no other means for deciding that matter and the whole
administration would come to a grinding halt. But the necessity must be genuine and real.
Therefore, the doctrine of necessity cannot be invoked where the members of the Text Book
Selection Committee were themselves the authors because the constitution of the selection
committee could have been changed very easily by the government.

I] EXCLUSION IN CASE OF CONTRACTUAL ARRANGEMENT:

In a case the Supreme Court held the principles of natural justice are not attracted in case of
termination of an arrangement in any contractual field. Termination of an
arrangement/agreement is neither a quasi-judicial or an administrative act so that the duty to
act judicially is not attracted.
Explain the meaning of ‘Reasoned Decisions’ or ‘Speaking order’.
2. What do you understand by the term, ‘Speaking Order’. Point out the
significance of ‘Speaking Order’ in administrative proceedings.
1. Name some of the ‘Exceptions’ to the Principles of Natural Justice.
Write True/False
2. Application of principles of Natural Justice can be excluded either expressly
or by necessary implications subject to the provisions of Articles–14 and 21
of the Constitution. (True/False)
3. Natural Justice is pragmatically flexible and amenable to capsulation under
compulsive pressure of circumstances. (True/False)
Explain the ‘Rule Against Bias’. Discuss various types of ‘bias’ which may
operate in the decision making by the administrative authorities.
2. Examine the Rule of Fair Hearing. Critically analyse the various aspects of
this Rule.
3. Define the term ‘Speaking Order’.
4. Identify the various ‘Exceptions’ to the Rule of Natural Justice.
ANSWERS TO INTEXT QUESTIONS
6.1 1. Natural Justice implies fairness, reasonableness, equity and equality. 2. Article 14 and
21 of the Constitution provide the strong basis of the principles of Natural Justice. Article –
14 bars arbitrary actions whereas Article – 21 provides for substantive and procedural
fairness in matters which effect the life and liberty of individuals. 3. Two main principles of
Natural Justice are (i) No one should be the Judge in his/her own case and (ii) each party
should be given the opportunity to be heard.
6.2 1. The term ‘Bias’ means an operative prejudice whether conscious or
unconscious in relation to a party or issue.

Principles of Natural Justice

INTRODUCTION TO LAW

Notes
Functions and 2. Three examples are: Techniques of Law
(a) The adjudicating officer has shares in one of the companies.
(b) A person who is the member of the selection panel is also one of
the applicants for the post.
(c) An officer of the government Transport company authorised to
inspect the government and private vehicle.
3. Various aspects of ‘Bias’ are:
(a) Personal Bias
(b) Pecuniary Bias
(c) Subject Matter Bias
(d) Pre-conceived Notion bias and
(e) Departmental Bias
6.3 1. ‘Rule of Fair Hearing’ simply implies that a person must be given an
opportunity to defend himself/herself.
2. The important components of a Notice are:

1. Time, place and nature of hearing.

2. Legal authority under which hearing is to be held.
3. Statement of specific charges which the person has to meet.
6.4 1. The term ‘Reasonal Decisions’ or ‘Speaking orders’ means tht the order which is
passed affecting the rights of an individual must be speaking order. The party against whom
an order is passed in fair play, must know the reasons of passing the order.
2. ‘Speaking order’ is the order which mentions the reason (s) for arriving at a particular
decision. It helps in avoiding arbitrariness. It helps in building up the trust and confidence in
the system. It provides the ground (s) of appeal if desired by the aggrieved party.
6.5. 1. Some of the important exceptions to the principles of natural justice are –
exclusion in emergency, confidentiality, routine matters, exclusion legislative action, where
no right of the person is infringed etc exclusion in case of statutory exception or necessity,
exclusion in case of contractual arrangement.
2. True
3. True

3.2. 2Criminal Justice Administration and Constraints

3.2.3. Independent Investigating Agency
3.2.4 Judicial Review and Judicial Activism
7.0. Recommended Books:
1. David Armstrong, et al, (2011), Civil Society and International Governance, Routledge,
Canada.
2. Elisabeth Zoller, Introduction to Public Law: A Comparative Study, BRILL, 2008.
3.Tom Ginsburg, Robert A. Kagan, Institutions and Public Law, Peterlang Publication, 2005.
4. P. Paul P. Craig, Adam. Tomkins, The Executive And Public Law: Power And
Accountability in Comparative Perspective, Oxford University Press, Incorporated, 2006.
5. H.C. Gutteridge, Comparative Law ( Camb. Uni. Press 2nd ed., 1949)
6. Edward M.Wise and Gergard O. W. Mueller, Studies in Comparative Public Law (New
York University, V.11)
7.1. E-Journal:
1. http://www.wcl.american.edu/journal/alr,
Journal Name: Administrative Law Review.
2. http://comparativelaw.metapress.com/home/main.mpx,
Journal Name: American Journal of Comparative Law.
3. http://www.harvard-jlpp.com/,
Journal Name: Harvard Journal of Law and Public Policy.
4. http://www.oxfordjournals.org/our_journals/ijtj/about.html,
Journal Name: International Journal of Transitional Justice.
5.http://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?
recordid=469&productid=7106,
Journal Name: Public Law.
7.2. Articles:
1. Carol Harlow, The Concepts and Methods of Reasoning of the New Public Law:
Legitimacy, LSE Law, Society and Economy Working Papers 19/2010.
2. Grégoire C N Webber, What is an Original Constitution? LSE Law, Society and Economy
Working Papers 19/2009.
3. Kai Möller, The Global Model of Constitutional Rights: Introduction, LSE Law, Society
and Economy Working Papers 4/2013.
4. David Johnston, The General Influence of Roman Institutions of State and Public Law,
IusCivile.com.
5. Benedict Kingsbury and Benjamin Straumann, Introduction: The Roman Foundations of
the Law of Nations, Public Law & Legal Theory Research Paper Series Working Paper No.
11-06.
6. Professor David Feldman, The Constitutional Reform Process, Written Evidence submitted
to the House of Lords Select Committee on the Constitution, 2011.
7. David Feldman, Comparative Reflections on Sovereignty and Constitutionalism, W. G.
Hart Legal Workshop, 28th June 2011, Sovereignty in Question.
8. G. Edward White, The Origins of Civil Rights in America, University of Virginia School
of Law Public Law and Legal Theory Research Paper Series No. 2013-03
9. Aziz Z. Huq, Structural Constitutionalism As Counterterrorism, Public Law And Legal
Theory Working Paper No. 399.
10. Stephanos Bibas, Transparency and Participation in Criminal Procedure, Public Law And
Legal Theory Working Paper No. 117.
7.3. Web sites
http://heinonline.org/
http://www.lexisnexis.com/
www.manupatra.in
http://www.springer.com/law/