Writ of Habeas Corpus and Indian Constitution

Writ of habeas corpus is issued in the form of an order calling upon a person who has detained another person to bring that person before the court to let it know under what authority he has detained that person.

Habeas Corpus is a process by which a person who is confined without legal justification may secure a release from his confinement. It is an effective way of immediate release from unlawful detention, whether in prison or in private custody. For the purpose of this Writ, physical detention is not necessary to constitute detention. Control and custody are sufficient ((Cox v. Haikes, (1819) 15 AC 506)).

Writ of habeas corpus is in the form of an order issued by the High Court calling upon the person by whom a person is alleged to be kept in confinement to bring such person before the court and to let the court know on what ground the person is confined. However, production of the body of the person alleged to be harmfully detained is not essential before an application for Writ of habeas corpus can be finally heard and disposed of by the Court. Production of the body of a person alleged to be wrongfully detained is ancillary to the main purpose of the Writ in securing the liberty of the subject illegally detained ((Kanu Sanyal v. District Magistrate, AIR 1973 SC 2684)).

An application for the Writ of habeas corpus can be filed by the person who is in confinement OR any other person on his behalf. However, all such applications shall accompany an affidavit stating the nature and circumstances of the confinement. General procedure is that, if the court considers that aprima facie case for granting the prayer has been made out, it issues a rule nisi calling upon the opposite party to show cause on a day specified, why an order granting the Writ should not be made.

A detention is not prima facie illegal if following conditions are satisfied;

  1. Detention should be in accordance with the procedure established by law ((See Article 21, of Indian Constitution)).
  2. It must not infringe any conditions laid down in the Article 22 of the Indian Constitution. Hence, if a person is not produced before the Magistrate within 24 hours of his arrest, he may be released on a Writ of habeas corpus.
  3. Legislature, which enacts the law depriving a man his personal liberty, must be empowered to make that law under Article 246 of the Indian Constitution ((Distribution of legislative powers)).

Writ of habeas corpus lies, if the malafide of the detaining authority is established OR if the detention is malafide and is made for a collateral OR with ulterior purpose ((AK Gopalan v. State of Madras, AIR 1950 SC 27)). However, in all these cases, burden of proof lies on the petitioner ((Prabhu Narain Singh v. Superintend, Central Jail, ILR (1961) 1 All 427)). However, a person is not entitled to be released on a petition of habeas corpus, if he could not prove the illegal detention or restraint.

In a case of habeas corpus, if the detaining authority pleads that, detenu has already released, however, if the detenu is traceable and if the release is found to be false, then court may also order for compensation ((Postsangbam Ningol Thokchom v. General Officer Commanding, AIR 1997 SC 3534)). No Writ of habeas corpus will lie in regard to a person who is undergoing imprisonment on a sentence of a court in a criminal trial on the ground of the erroneousness of the conviction ((Janardan Reddy v. State of Hyderabad, AIR 1951 SC 217)).

Writ of habeas corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out. But this does not mean that, the writ cannot or will not be issued against a parent who with impunity snatches away a child from the lawful custody of the other parent to whom the court gives such custody ((Elizabeth Dinshaw v. Arvind M Dinshaw, AIR 1987 SC 3)).

However, a person has no right to present successive applications for habeas corpus to different judges of the same court ((Ghulam Sarwar v. Union of India, AIR 1967 SC 1335)). However, a fresh petition under Article 32 would be competent ((Id.)).

Writ of mandamus and Indian Constitution

Writ of mandamus is an order by the superior court commanding a person or a public authority to do or forbear to do something in the nature of public duty. In other words, it is a judicial remedy which is in the form of an order from a superior court to any government, court, corporation, or any public authority to do or to forbear from doing some specific act which that body is obliged under law to do or refrain from doing as the case may be and which is in the nature of a public duty and certain cases of a statutory duty ((AT Markose, Judicial Control of Administrative Action in India, p. 364)).

Writ of mandamus is a writ of most extensive remedial nature and is in form, a command issuing from the High Court of Justice, directed to any person, corporation, or an inferior tribunal requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Purpose of Writ of mandamus is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, where all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where although there is an alternative legal remedy, yet the mode of redress is less convenient beneficial and effectual ((Halsbury’s Laws of England, 4th Edition, Vol. I Para 89)). However, a Writ of mandamus cannot be issued to compel an authority to do something against the statutory provision ((Hope Textiles Ltd. v. Union of India, 1995 Supp (3) SCC 199)).

No one can ask for a mandamus without a legal right. There must be a judicially enforceable as well as legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something and abstains from doing it ((Mani Subrat Jain v. State of Haryana, AIR 1977 SC 276)).

An applicant praying for a Writ of mandamus must show that, he has a legal right to compel the opponent to refrain from doing something. In other words, there must be in the applicant a right to compel the performance of some duty cast on the opponent ((Union of India v. Orient Enterprises, (1998) 3 SCC 501)).

The duty sought to be enforced must have three qualities, viz.

  1. It must be a duty of public nature. A duty will be of a public nature if it is created by the provisions of the Constitution ((Rashid Ahmed v. Municipal Board, AIR 1950 SC 610))OR of a statute ((State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610))OR some rule of common law ((Sharif Ahmed v. Regional Transport Authority, AIR 1978 SC 209)). A public duty need not, however be always statutory ((Andi Mukta Sadguru Shree SMVSJMS Trust v. VR Rudani, AIR 1989 SC 1607)). A duty corresponding to a private right is not a duty which can be enforced by mandamus.
  2. The duty must be imperative and not discretionary one. In other words, mandamus lie to compel the performance of an absolute duty. The office of a mandamus is to compel the performance of a plain and positive duty. It is issued upon the application of one who has a clear right to demand such performance, and who has no other adequate remedy ((Robert L. Cutting, Re, 94 US 14)).
  3. No mandamus will lie where the duty is of a discretionary in nature. It is issued to enforce the performance of ministerial functions and it must be issued when, there is no alternative remedy available to enforce such functions ((Sharif Ahmed v. Regional Transport Authority, AIR 1978 SC 209)).

An application of mandamus will not lie for an order of reinstatement to an office which is essentially of a private character, nor can such application be maintained to secure performance of obligations owed by a company registered under the Companies Act towards its workmen or to resolve any private dispute ((Praga Tools Corporation v. CA Imanual, (1969) 1 SCC 585)).

It is not necessary that, the person or authority on whom the statutory duty is imposed need be a public authority. A mandamus can issue, for instance to an official of a society to compel him to carry out the terms of the statute under or by which their organisation is constituted or governed or to carry out the duties placed on them by the statutes authorising their undertakings. Writ of mandamus will also lie against companies constituted for the purpose of fulfilling public responsibilities ((Praga Tools Corporation v. CA Imanual, (1969) 1 SCC 589)).

Writ of mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a right or sufficient legal interest ((Praga Tools Corporation v. CA Imanual, (1969) 1 SCC 1306)), or whose rights are directly and substantially invaded and are in imminent danger of being invaded ((State of Kerala v. Lakshmikutty, AIR 1987 SC 331)).

However, Writ of mandamus cannot be issued to the State Government to prevent it from considering a bill which is alleged to have been in violation of Constitution. Similarly, no court can issue a mandate to any Legislature to enact any specific law ((Chote Lal v. State of Uttarpradesh, AIR 1951 All 228)).

Writ of certiorari and duty to act judicially

Certiorari means “to be certified” or “to be informed”. It is issued by a higher court to the lower court, either to transfer the case pending with the later to itself OR to quash the order of the later. Hence, unlike the Writ of prohibition, which is only preventive the Writ of certiorari is both preventive as well as curative.

Writ of certiorari may issue “whenever any, body of persons having legal authority to determine the questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority ((R v. Electricity Commissioner, (1924) 1 KB 171)). As approved by the Supreme Court of India in Gulab Singh v. Collector of Farrukhabad ((AIR 1953 All 585)), it consists of four major components such as;

  1. Any body of persons;
  2. Having legal authority;
  3. To determine questions affecting the rights of subjects; and
  4. Having the duty to act judicially

The duty to act judicially may arise in widely differing circumstances and it would be impossible to define exhaustively all the circumstances ((Jaswant Sugar Mills Ltd. v. Lakshmi Chand, AIR 1963 SC 677)). There are two propositions ((Province of Bombay v. Khushaldas S Advani, AIR 1959 SC 222))however, which are well established for ascertaining if the authority is under a duty to act judicially, namely;

  • That, if a statute empowers an authority, not being a court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute, which claim is opposed by another party, and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie, and in the absence of anything in the statute to the contrary, it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and
  • That, if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the context is between the authority proposing to do the act and the subject opposing it, the final determination of authority will be a quasi-judicial act provided the authority is required by the statute to act judicially.

The decision about the expediency or the necessity of requisitioning was left to the unfettered subjective opinion of the government and there was no judicial process involved for determining the matter. Hence, the decision to requisition the house of the petitioner in that case was held to be an administrative act of the Government ((Id.)).

In determining the jurisdiction of Writ of certiorari, the courts in India have for some time been mainly guided by the principle laid down in R v. Electricity Commissioner (([1924] 1 KB 171)), R v. Legislative Committee of the Church Assembly (([1928] 1 KB 411))and Nakkudda Ali v. Jayaratne ((1951 AC 66)). Accordingly, in order that a body may satisfy the required test, it is not enough that, it should have legal authority to determine the questions affecting the rights of subjects; there must be “superadded” to the characteristic, the further characteristic that the body has “the duty to act judicially”.

Supreme Court quashed the decision of the Board which cancelled the examination of a candidate on the ground of shortage of attendance ((Board of High School & Intermediate Education v. Chitra, (1970) 1 SCC 121)). After admission to the examination, the candidate had appeared and passed in all the papers. Cancellation of examination was held to be quasi-judicial function and the principles of natural justice, ought to have been observed. It was held by the Supreme Court that, the decision was taken without giving proper notice to the candidate to explain their part ((Id.)).

However, if the candidates at any of the examination centres have indulged in mass copying, the cancellation of said examination and re-conducting the same for all the candidates may attract the application of the principles of natural justice ((Bihar School Education Board v. Subhas Chandra Sinha, AIR 1970 SC 1269)).

The extent of area, where the principles of natural justice have to be followed and the judicial approach has to be adopted, must depend primarily on the nature of the jurisdiction, and the power conferred on any authority or body by statutory provisions, to deal with the questions affecting the rights of citizens. In other words, the court has held that, the test prescribed by Lord Reid in Ridge v. Baldwin ((1964 AC 40)), affords valuable assistance in dealing with the vexed questions with which we are concerned in the present appeal ((Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767 See also, Associated Cement Companies Ltd. v. PN Sharma, AIR 1965 SC 1595)).

The duty to act judicially need not be superadded in the statutory provision, but it may be spelt out from the nature of the power conferred, the manner of exercising it and its impact on the rights of the person affected and where it is found to exist, the rules of natural justice would be attracted. It was also observed that, it may be taken as a settled now that, even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable ((Maneka Gandhi v. Union of India, AIR 1978 SC 597)).

Writ of certiorari is discretionary; it is not issued merely because it is lawful to do so. Where the party feeling aggrieved by an order of an authority under the Income Tax Act has an adequate alternative remedy which he may resort to against the improper action of the authority and he does not avail himself of that remedy the High Court will require a strong case to be made out for entertaining a petition of Writ. Where the aggrieved party has an alternative remedy available, the High Court would be slow to entertain the petition challenging an order of a taxing authority, which is ex facie within jurisdiction. A petition for Writ of certiorari may lie to the High Court, where the order is on the face of it erroneous or raises the question of jurisdiction or of infringement of fundamental rights of the petitioner ((Champalal Binani v. CIT, (1971) 3 SCC 20)).

Writ of Quo Warranto in India

The term Quo Warranto means “by what authority or warrant”. It is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power they claim to hold. It is a notice of demand, issued by a person, to the respondent claiming some delegated power, and filed with a court of competent jurisdiction.

In other words, the writ of Quo Warranto is issued by the court to inquire into the legality of claims of a person to a public office. A writ of Quo Warranto calls upon the holder of the office to show the court under what authority he holds the office. Purpose or objective of this writ is to prevent persons who has wrongfully usurped and office from continuing that office ((University of Mysore v. Govinda Rao, AIR 1965 SC 491)).

The writ of Quo Warranto is unlike a petition or motion to show cause, because the onus is on the respondent, not on the demandant. Unlike other four writs such as Habeas Corpus, Mandamus, Prohibition and Certiorari a writ of Quo Warranto can be sought by any interesting party and it is not necessary by the aggrieved person.

In the proceedings for a writ of Quo Warranto the applicant does not seek to enforce any right of his as such nor does he complain of any non-performance of duty to him. The question here in a writ of Quo Warranto is the right of the non-applicant to hold the office and an order that is passed is an order ousting him from that office ((GD Karkare v. TL Shevde, AIR 1952 Nag 330, 334)).

An application for the writ of Quo Warranto, challenging the legality of an appointment to an office of a public nature is maintainable at the instance of any private person, although he is not personally aggrieved or interested in the matter ((G Venkateshwara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828)).

However, in order to claim a writ of Quo Warranto, the applicant must satisfy the court that, the office in question is a public office and is held by a usurper without legal authority and that, necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with the law or not ((University of Mysore v. Govinda Rao, AIR 1965 SC 491)).

For the purpose a writ of Quo Warranto, a public office means an office in which the public have an interest. For example; an office of the Speaker of a Legislative Assembly is a public office and a writ of Quo Warranto can be issued against the Speaker to inquire by what authority he supported his claim to the office ((Anand Bihari v. Ram Sahay, AIR 1952 MB 31)).

Similarly, it was held that the office of the Advocate General is a public office and a writ of Quo Warranto, could be issued against the office of the Advocate General ((GD Karkare v. TL Shevde, AIR 1952 Nag 333)). However, the writ of Quo Warranto will not lie in respect of an office of a private nature ((R v. Mousley, (1846) 115 ER 1130, see also Jamalpur Arya Samaj v. Dr. D Ram, AIR 1954 Pat 297)).

The issue of a writ of Quo Warranto is discretionary in nature and the petitioner is not necessarily entitled to the issue of a writ. It is also necessary that, the office in respect of which a writ of Quo Warranto is moved must be of a substantive character, and the term “substantive character” mean an office independently entitled ((R v. Speyer, (1916) 1 KB 595)).

Writ of Prohibition in India

Writ of prohibitio, also called as Writ of prohibition commands the court or tribunal to whom it is issued to refrain from doing something, which it is about to do. This Writ is issued by either Supreme Court or High Court to an inferior court forbidding it to continue proceedings in a case in excess of its jurisdiction.

Writ of prohibitio prevents a tribunal processing judicial or quasi-judicial powers from assuming or threatening to assume jurisdiction which it does not possess ((CCE v. National Tobaco Co. Of India Ltd., AIR 1972 SC 2563)).

Writ of prohibition prevents a tribunal processing judicial or quasi-judicial powers from assuming or threatening to assume jurisdiction, which it does not possess. Writ of prohibition has many common features as that of Writ of certiorari viz. the scope and the rules by which the Writ is governed.

Both the Writs of prohibition as well as certiorari have for their object the restraining of inferior courts from exceeding their jurisdiction and they could be issued not merely to court, but to authorities exercising judicial or quasi-judicial functions ((Hari Vishnu Kamath v. S. Ahmad Ishaque, AIR 1955 SC 233)). Writ of prohibition will lie when the proceedings are to any extent pending and a Writ of certiorari for quashing after they have terminated in a final decision ((Id.)).

When an inferior court takes up any matter for hearing, over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a Writ of prohibition. Upon such application, an order will issue for forbidding the inferior court from continuing the procedure.

For example; where, the Regional Transport Authority has no power under Section 62, of the Motor Vehicle Act, to entertain an application for a temporary permit during the pendency of an application for new permits, the grant of temporary permits was beyond the power conferred upon the Regional Transport Authority and a Writ of prohibition prohibiting Regional Transport Authority from proceeding with the application for a temporary permit was issued ((Hari Narain Roy v. Regional Transport Authority, AIR 1965 Pat 248)).

Existence of an alternative remedy may be more appropriate in case of a Writ of certiorari, but where an inferior court OR tribunal has shown to have usurped jurisdiction, which does not belongs to it, that consideration is irrelevant and the Writ of prohibition has to issue as of right ((Calcutta Discount Co. Ltd., v. ITO, AIR 1961 SC 372)).

Ownership and control of material resources of the community

Recent trends in Judiciary

Dr. Kondaiah Jonnalagadda, Assistant Professor, NLIU, Bhopal

Ownership and Control of the Material resources of the Community is to be distributed according to the policy of the state to sub-serve the common good, as it is given in Article 39 of Constitution of India. State also acts as trusty of public property. Exploration and Exploitation of natural resource, public property should identify the beneficiary through the policy. The beneficiary should not be a private party, multinational company, or any other body corporate; it is always people of India.  Identification of beneficiary and distribution of resources is one of the primary duty of state while distributing natural resources.

Any means of Jobbery, Nepotism, and arbitrariness in distribution of natural resources is violation of Article 14 of the constitution of India. The existing of the methods of distribution of natural resources will destroy the statehood, because of Corporates enjoy benefits and profits, whereas the property belong to common man.

With this back drop, the author will analyze in this article the various judicial precedents pronounced by the Supreme Court of India, to protect the property of common man and acted as trustee of property, though it is the duty of executive.

Object of Part-IV of the constitution

The Fundamental Rights and the Directive Principles constitute the ‘conscience’ of our Constitution. The purpose of the fundamental rights is to create an egalitarian society, to free all citizens from coercion or restriction by society and make liberty available to all. The purpose of Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about non violent social revolution. Through such a social revolution the Constitution seeks to fulfil the basic needs of the common man and to change the structure of the society. It aims at making the Indian masses free in the positive sense. Without faithfully implementing Directive Principles, it is not possible to achieve the Welfare Sate contemplated by the Constitution ((See Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225)).

Directive Principles are also fundamental. They can be effective if they are to prevail over Fundamental Rights of a few in order to sub-serve the common good and not allow the economic system to the common detriment ((Ibid Per Ray J)). Our Constitution aim at bringing about a synthesis between “Fundamental Rights” and “Directive Principles of State Policy”, by giving to the former a pride of place and to the latter a place of permanence. Together, not individually, they from the core of the Constitution. Together, not individually, they constitute its true conscience ((Ibid Per Chandrachud, J)).

Judicial Trends from 1980-2014

The Supreme Court of India  in Kasturi Lal Lakshmi Reddy and Ors.v. State of J and K and Anr., (([1980] 4 SCC 1))had said that where the State was allocating resources such as water, power, raw materials, etc., for the purpose of encouraging setting up of industries within the State, the State was not bound to advertise and tell the people that it wanted a particular industry to be set up within the State and invite those interested to come up with proposals for the purpose. It was also observed that if any private party comes before the State and offers to set up an industry, the State would not be committing breach of any constitutional or legal obligation if it negotiates with such party and agrees to provide resources and other facilities for the purpose.

In Sachidanand Pandey and Anr.v. State of West Bengal and Ors. (([1987] 2 SCC 295))this Court had observed that ordinary rule for disposal of State-owned or public-owned property, was by way of public auction or by inviting tenders but there could be situations where departure from the said rule may be necessitated but then the reasons for the departure must be rational and should not be suggestive of discrimination and that nothing should be done which gives an appearance of bias, jobbery or nepotism. This principle was echoed again in Haji T.M. Hassan Rawther v. Kerala Financial Corporation, (([1988] 1 SCC 166))wherein this Court reiterated that the public property owned by the State or by an instrumentality of State should be generally sold by public auction or by inviting tenders. It was emphasized that this rule has been insisted upon not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities and to obviate the factors like bias, favoritism or nepotism. Clarifying that this is not an invariable rule, the Court reiterated that departure from the rule of auction could be made but then it must be justified.

The above principle is again stated by this Court in M.P. Oil Extraction and Anr. v. State of M.P. and Ors., (([1997] 7 SCC 592))in which this Court said that distribution of largesse by inviting open tenders or by public auction is desirable but it cannot be held that in no case distribution of such largesse by negotiation is permissible.

In Netai Bag and Ors.v. State of West Bengal and Ors. (([2000] 8 SCC 262))this Court said that when any State land is intended to be transferred or the State largesse is decided to be conferred, resort should be had to public auction or transfer by way of inviting tenders from the people as that would be a sure method of guaranteeing compliance with mandate of Article 14 of Constitution but non-floating of tenders or not holding public auction would not in all cases be deemed to be the result of the exercise of the executive power in an arbitrary manner.

In VillianurIyarkkaiPadukappuMaiyam v. Union of India and Ors., the matter before this Court related to the selection of contractor for development of the port of Pondicherry without floating a tender or holding public auction. The Court said that where the State was allocating resources such as water, power, raw materials, etc., for the purpose of encouraging development of the port, the State was not bound to advertise and tell the people that it wanted development of the port in a particular manner and invite those interested to come up with proposals for the purpose (([2009] 7 SCC 561)).

In Centre for Public Interest Litigation and Ors. v. Union of India and Ors., (([2012] 3 SCC 1))this Court stated that a duly publicised auction conducted fairly and impartially was perhaps the best method for alienation of natural resources lest there was likelihood of misuse by unscrupulous people who were only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values. Court laid emphasis that while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.

The Constitution Bench clarified that the statement of law in Centre for Public Interest Litigation and Ors. v. Union of India and Ors. (([2012] 3 SCC 1))that while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction was confined to the specific case of spectrum and not for dispensation of all natural resources. The Constitution Bench said that findings of this Court in Centre for Public Interest Litigation and Ors. v. Union of India and Ors.  were limited to the case of spectrum and not beyond that and that it did not deal with the modes of allocation for natural resources other than spectrum.

A fortiori, besides legal logic, mandatory auction may be contrary to economic logic as well. Different resources may require different treatment. Very often, exploration and exploitation contracts are bundled together due to the requirement of heavy capital in the discovery of natural resources. A concern would risk undertaking such exploration and incur heavy costs only if it was assured utilization of the resource discovered; a prudent business venture, would not like to incur the high costs involved in exploration activities and then compete for that resource in an open auction. The logic is similar to that applied in patents. Firms are given incentives to invest in research and development with the promise of exclusive access to the market for the sale of that invention. Such an approach is economically and legally sound and sometimes necessary to spur research and development. Similarly, bundling exploration and exploitation contracts may be necessary to spur growth in a specific industry.

Similar deviation from auction cannot be ruled out when the object of a State policy is to promote domestic development of an industry, like in KasturiLal’s case, discussed above. However, these examples are purely illustrative in order to demonstrate that auction cannot be the sole criteria for alienation of all natural resources.

In Natural Resources Allocation, In re, Special Reference No. 1 of 2012 (([2012] 10 SCC 1)): the Constitution Bench, in the main judgment, thus, concluded that auction despite being a more preferable method of alienation/allotment of natural resources cannot be held to be constitutional requirement or limitation for alienation of all natural resources and, therefore, every method other than auction cannot be struck down as ultra vires the constitutional mandate. The Court also opined that auction as a mode cannot be conferred the status of a constitutional principle. While holding so, the Court held that alienation of natural resources is a policy decision and the means adopted for the same are, thus, executive prerogatives. The Court summarized the legal position as under:

“To summarise in the context of the present Reference, it needs to be emphasised that this Court cannot conduct a comparative study of the various methods of distribution of natural resources and suggest the most efficacious mode, if there is one universal efficacious method in the first place. It respects the mandate and wisdom of the executive for such matters. The methodology pertaining to disposal of natural resources is clearly an economic policy. It entails intricate economic choices and the Court lacks the necessary expertise to make them. As has been repeatedly said, it cannot, and shall not, be the endeavour of this Court to evaluate the efficacy of auction vis-a-vis other methods of disposal of natural resources. The Court cannot mandate one method to be followed in all facts and circumstances. Therefore, auction, an economic choice of disposal of natural resources, is not a constitutional mandate. We may, however, hasten to add that the Court can test the legality and constitutionality of these methods. When questioned, the courts are entitled to analyse the legal validity of different means of distribution and give a constitutional answer as to which methods are ultra vires and intra vires the provisions of the Constitution. Nevertheless, it cannot and will not compare which policy is fairer than the other, but, if a policy or law is patently unfair to the extent that it falls foul of the fairness requirement of Article 14 of the Constitution, the Court would not hesitate in striking it down ((ibid)).”

Regard being had to the aforesaid precepts, we (Supreme Court) have opined that auction as a mode cannot be conferred the status of a constitutional principle. Alienation of natural resources is a policy decision, and the means adopted for the same are thus, executive prerogatives. However, when such a policy decision is not backed by a social or welfare purpose, and precious and scarce natural resources are alienated for commercial pursuits of profit maximising private entrepreneurs, adoption of means other than those that are competitive and maximise revenue may be arbitrary and face the wrath of Article 14 of the Constitution. Hence, rather than prescribing or proscribing a method, we believe, a judicial scrutiny of methods of disposal of natural resources should depend on the facts and circumstances of each case, in consonance with the principles which we have culled out above. Failing which, the Court, in exercise of power of judicial review, shall term the executive action as arbitrary, unfair, unreasonable and capricious due to its antimony with Article 14 of the Constitution.

Common Good and Distribution of Natural Resources

The disposal of natural resources is a facet of the use and distribution of such resources. Article 39(b) mandates that the ownership and control of natural resources should be so distributed so as to best subserve the common good. Article 37 provides that the provisions of Part IV shall not be enforceable by any court, but the principles laid down therein are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Therefore, this Article, in a sense, is a restriction on “distribution” built into the Constitution. But the restriction is imposed on the object and not the means. The overarching and underlying principle governing “distribution” is furtherance of common good. But for the achievement of that objective, the Constitution uses the generic word “distribution”. Distribution has broad contours and cannot be limited to meaning only one method i.e. auction. It envisages all such methods available for distribution/allocation of natural resources which ultimately subserve the “common good”.

It can thus, be seen from the aforequoted paragraphs that the term “distribute” undoubtedly, has wide amplitude and encompasses all manners and methods of distribution, which would include classes, industries, regions, private and public sections, etc. Having regard to the basic nature of Article 39(b), a narrower concept of equality under Article 14 than that discussed above, may frustrate the broader concept of distribution, as conceived in Article 39(b). There cannot, therefore, be a cavil that “common good” and “larger public interests” have to be regarded as constitutional reality deserving actualisation.

The norm of “common good” has to be understood and appreciated in a holistic manner. It is obvious that the manner in which the common good is best sub-served is not a matter that can be measured by any constitutional yardstick-it would depend on the economic and political philosophy of the Government. Revenue maximisation is not the only way in which the common good can be sub-served. Where revenue maximisation is the object of a policy, being considered qua that resource at that point of time to be the best way to subserve the common good, auction would be one of the preferable methods, though not the only method. Where revenue maximisation is not the object of a policy of distribution, the question of auction would not arise. Revenue considerations may assume secondary consideration to developmental considerations.

Therefore, in conclusion, the submission that the mandate of Article 14 is that any disposal of a natural resource for commercial use must be for revenue maximisation, and thus by auction, is based neither on law nor on logic. There is no constitutional imperative in the matter of economic policies-Article 14 does not predefine any economic policy as a constitutional mandate. Even the mandate of Article 39(b) imposes no restrictions on the means adopted to subserve the public good and uses the broad term “distribution”, suggesting that the methodology of distribution is not fixed. Economic logic establishes that alienation/allocation of natural resources to the highest bidder may not necessarily be the only way to sub-serve the common good, and at times, may run counter to public good. Hence, it needs little emphasis that disposal of all natural resources through auctions is clearly not a constitutional mandate.

Public Trust Doctrine in Economic Laws

Though the Public Trust doctrine is used in environmental law protection, it is also used in economic laws as protect the interest of stake holders. The Court observed that the State is empowered to distribute natural resources as they constitute public property/national assets. Thereafter, the Bench observed as follows ((ibid)):

“While distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection…”

The learned Judges adverted to the ‘public trust doctrine’ as enunciated in The Illinois Central Railroad Co. v. The People of the State of Illinois ((36 L ED 1018 : 146 U.S. 387 (1892); M.C. Mehta v. Kamal Nath and Ors. (1997) 1 SCC 388; JamshedHormusjiWadia v. Board of Trustees, Port of Mumbai and Anr. (2004) 3 SCC 214; Intellectuals Forum, Tirupathi v. State of A.P. and Ors: (2006) 3 SCC 549; Fomento Resorts and Hotels Limited and Anr. v. Minguel Martins and Ors. (2009) 3 SCC 571 and Reliance Natural Resources Limited v. Reliance Industries Limited (2010) 7 SCC 1))and held ((ibid)):

. As natural resources are public goods, the doctrine of equality, which emerges from the concepts of justice and fairness, must guide the State in determining the actual mechanism for distribution of natural resources. In this regard, the doctrine of equality has two aspects: first, it regulates the rights and obligations of the State vis-à-vis its people and demands that the people be granted equitable access to natural resources and/or its products and that they are adequately compensated for the transfer of the resource to the private domain; and second, it regulates the rights and obligations of the State vis-à-vis private parties seeking to acquire/use the resource and demands that the procedure adopted for distribution is just, non-arbitrary and transparent and that it does not discriminate between similarly placed private parties.

Referring to the decisions of this Court in, the Bench ultimately concluded thus:

In conclusion, It was upheld that   the State is the legal owner of the natural resources as a trustee of the people and although it is empowered to distribute the same, the process of distribution must be guided by the constitutional principles including the doctrine of equality and larger public good ((AkhilBhartiyaUpbhokta Congress v. State of Madhya Pradesh and Ors. (2011) 5 SCC 29 and SachidanandPandey and Anr. v. State of West Bengal and Ors. (1987) 2 SCC 295)).


On the basis of various judicial pronouncements and policies of state, it is submitted that the state is the trustee of the public property. However, it can be seen from the recent highlighted scams like, spectrum, Coalgate and others etc. Public property is being used for the benefit of private parties and not the common good. In these time, Courts interference protected the interest and object of Directive principles of state policy, where as it is the duty of executive to uphold and protect the interest of public property and natural resources at large.

It submitted that it is the judicial justice which prevented private parties to enjoy the benefits of public property by using the means of jobbery, nepotism, and bias.   It is also seen from the above cases, that the private companies and MNC’s enjoyed the benefits and profits over a period of two decades due to the licenses/leases given by government. After cancelling all these licenses/ leases the state will be allocating the same to private parties, however, it has to follow mandate given by the Supreme Court of India.

Constitution and the Public Administration

Dr.(Prof.) Ravishankar K. Mor, Asst. Prof., Dept. of Law, Yeshwant Mahavidyalaya, Wardha ((This is an epitome of the lecture delivered at National Academy of Defense Production, Ordinance Factory,Nagpur)).

Public Administration in any country is defined in its constitution, so also in India; the Constitution has clearly spelt out the powers, functions and goals of public administration. The Constitution of India has clearly articulated the social and economic goals and has specified agents for achieving the promised social revolution. Matters concerning formation and working of the executive agencies (both political and civil) are spelt out. Citizens have been assured that the Executive together with other organs of the State (Legislature & Judiciary) would uphold their rights and remove the inequities from which the anti-democratic forces derive their sustenance.  Good Governance, it was hoped, would transform the social, political and economic life of the people, within the framework of democracy. For the sake of convenience, this paper is divided in two part, in first part the Administrative set up in India is discussed, wherein the Second part deals with the constitutional framework along with constitutional expectations from the public servants.

Evolution of the Indian administrative system

The public administrative system in India has a long history. Kingdoms existed in India several hundred years B.C. In the earlier era the civil servants performed the role of servants of the king. (Kautilya’s Arthshastra describes the civil service of those days and lays down various norms 300 B.C. to 1000 A.D). During the medieval period they became State servants. The land revenue system was established during the Moghul period. The East Indian Company has a civil service to carry out their commercial functions. During the British rule they started as servants to the Crown, but gradually they started becoming ‘Public Servants’. The British government set up the Indian civil service, primarily with the objective of strengthening the British administration in the UK. In this period the role of the civil services was to further the British interest, and the role was totally regulatory. Later on they assumed development roles also. After the coming into force of the Constitution, the public services as we see today came into being.

The existing administrative system in India

The civil service system is the backbone of the administrative machinery of the country. The civil service system in post-independent India was reorganised. At the central level, the civil services include the All-India services, namely the Indian Administrative Service, the Indian Forest Service, and the Indian Police Service. There are various central services like the Indian Income Tax Service, Indian Railway Services etc. There are three tiers of administration-Union Government, State Governments and the Local governments. The State Governments have their own set of services.

The administrative structure of the Government of India

PA 1

Local self governments (Urban)

  • Big cities have –City Corporations.
  • Cities have –City Municipal Committees.
  • Towns have- Town Municipal Committees.

All these are elected bodies. Administration is carried out by an appointed Chief Executive who is answerable to the elected bodies. Their main role is to provide civic amenities to the citizens. Their main source of revenue is local tax, and funds received from the State Government.

Local self governments (Rural)

PA 2

The hallmarks of civil services in India

  • Constitutional protection.
  • Political neutrality.
  • Permanency.
  • Annonymity
  • Recruitment based on merit. Done by a Constitutional Authorities-the Public Service Commissions.


Civil Services

Doctrine of Pleasure

In England a civil servant holds his office during the pleasure of the Crown. His services can be terminated at any time by the Crown without giving any reasons. Article 310 of the Constitution of India incorporates the English doctrine of pleasure by clearly stating that every person who is a member of a defence service or of a civil service of the Union or of an all India service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State . But this power of the Government is not absolute. Article 311 puts certain restriction on the absolute power of the President or Governor for dismissal, removal or reduction in rank of an officer. Article 311 reads as follows ((For further reading on the topic please visit at, http://www.img.kerala.gov.in/docs/downloads/cp_to_cs.pdf)):

(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

Panchayat Raj              

The 73rd Amendment of the Constitution, 1992

1992 was the most significant year in the history of Panchayats in India as the 73rd amendment of the Constitution (amendment of Article 243) was passed by the Indian Parliament that declared Panchayats as institutions of self government. (The 74th amendment done at the same time relate to urban local bodies). These amendments came into force from April 24 1993. The major features of the 73rd amendment can be enumerated as under:

  • There should be three tiers of Panchayats (District Panchayats, Block Panchayats i.e. intermediary Panchayats and Village or Gram Panchayats) in states with over 25 lakh of population. States with less than this population will have only two tiers omitting the intermediary tier.
  • Panchayats declared as institutions of self governments (signifying that the status of Panchayats is same in their respective areas, as that of the Union Government at the national and State Governments at the state level).
  • States were mandated to devolve functions relating to 29 subjects (including agriculture, land reforms, minor irrigation, fisheries, cottage and small scale industries, rural communication, drinking water, poverty alleviation programmes etc.) to the Panchayats.
  • Panchayats were mandated to prepare plan(s) for economic development and social justice and implement them.
  • States were asked to constitute a State Finance Commission every five years to determine the Panchayats’ share of state’s financial resources as a matter of entitlement (just as the Central Finance Commission determines how resources of the Central government should be shared between the union and state governments).
  • Panchayat bodies must have proportionate representation of Scheduled Caste, Scheduled Tribes and women. Such reservation should also apply in the cases of Chairpersons and Deputy Chairpersons of these bodies.
  • There shall be State Election Commission in each state which shall conduct elections to the local bodies in every five years.

Amendment of the Constitution necessitated large scale amendments in the Panchayat Acts of individual states, though in states like West Bengal almost all the requirements of the Constitutional amendment were already provided for in the Panchayat Act.

Almost all the states are presently having three tiers of Panchayats. At the lowest level is the Gram Panchayat (GP, headed by Pradhan/Sarpanch/Mukhia). The intermediary level Panchayat is called Block Panchayat/Panchayat Samiti/Taluka Panchayat (PS, headed by President/Sabhapati). At the district level there is the District Panchayat/Zilla Parishad/Zilla Panchayat (ZP headed by Chairman/ Sabhadhipati) ((For further reading please visit at, http://www.arthapedia.in/index.php?title=Local_Governance_system_in_rural_India_(Panchayati_Raj)_and_the_73rd_amendment_of_the_Constitution)).

Distribution of legislative subjects

In terms of Article 246 of the Indian constitution, there is a threefold distribution of legislative powers between Union and the State Governments.  The VIIth Schedule of the constitution contains 3 lists.

  1. The Union List gives exclusive legislative powers on 99 items of all India character such as defence, foreign affairs, currency and coinage etc.
  2. The State list similarly gives exclusive legislative powers to the states on 61 items, now expanded to 65 items. Such subjects are essentially subjects of local interest.
  3. The concurrent list empowers both the union and the states to legislate on 52 items. The subjects in this list are such that both national government and the governments of the states are interested in them. Education, Civil and Criminal procedure code, marriage and divorce, bankruptcy and insolvency etc. are some prominent items in this list.

Both the union and the state governments are competent to legislate on subjects in the concurrent list. In case of conflict between a central law and a state law on a subject in this list; normally, the union law should prevail. If however a state law reserved for the Presidents assent receives, his assent, it will prevail over the union law. The power to legislate on a matter not enumerated in any of the 3 lists is vested in the union Parliament by Art. 248. Thus in India residuary powers belong to the union government.

Thus the distribution of legislative powers by the constitution is heavily tilted towards the centre. Over and above this, the constitution visualizes 5 extraordinary situations, when the Union Parliament will be competent to legislate on matters in the state list.

  •  Firstly, under Art 249, the Parliament may legislate on any subject in the state list, if the Rajya Sabha passes a resolution by not less than a 2/3 majority that it is necessary to do so in the national interest.
  • Secondly, under Art 250, the Union Parliament may legislate on state subjects when a Proclamation of National emergency is in operation under Art. 352.
  • Thirdly, under Art 252, the Parliament may legislate on state subjects on request by the legislatures of two or more states.
  • Fourthly, under Art 253, the Parliament is competent to legislate on subjects in the state list for the implementation of international treaties, a agreements or convention with foreign states.
  • Finally, when a breakdown of constitutional machinery in a state occurs and there is a consequent President’s rule in state under Art. 356, the powers of the State Legislature are exercised by the Parliament ((For further reading please refer, http://www.importantindia.com/2049/union-and-state-legislature-of-india/)).

Contractual and Tortuous Liability

Article 300: Suits and proceedings.-

(1)   The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.

(2)   If at the commencement of this Constitution-

(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and

(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings ((For further reader please visit, http://www.lawyersclubindia.com/articles/Constitutional-Torts-Under-Article-300-of-the-Constitution-Of-India-3841.asp#.U6a_kvmSx1g)).

Administrative Tribunals

323A. Administrative tribunals.-

(1) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditons of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government.

(2) A law made under clause (1) may-

(a) provide for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or more States;

(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals;

(c) provide for the procedure (including provisons as to limitation and rules of evidence) to be followed by the said tribunals;

(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136, with respect to the disputes or complaints referred to in clause (1);

(e) provide for the transfer to each such administrative tribunal of any cases pending before any court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment;

(f) repeal or amend any order made by the President under clause (3) of article 371D;

(g) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as Parliament may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals.

(3) The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force ((For further reading on this topic, please visit, http://www.constitution.org/cons/india/p14a323a.html)).

Concluding remark:

Author, would like to conclude the paper with the observations of the Second Administrative Reforms Commission,

  1. In the beginning the constitutional arrangements relating to governance worked more or less to general satisfaction and provided the people  with a fairly safe and secure life. However, as time passed their inadequacies have become evident and Government has lost its élan as it has failed to live up to the expectations of the Constitution to give real substance to the policies designed to promote social well being.  Even the most modest expectations have remained unfulfilled.
  2. The present situation is characterised by a pervasive disenchantment with the way things have worked out.  It is futile to debate whether it is the institutions provided by the Constitution that have failed or whether the men who work these Institutions have failed.  While we cannot abolish the men and the women who command the strategic heights of governance, we can improve and update the present Institutions, which have developed visible fault lines.
  3. Inability to ensure the socio-economic goals cannot be attributable to scarcity of resources but to the failure of Governance.  It is the insufficient attention paid to such a transformation that has deepened the  fissures between the people and the administration.  The failure to regenerate society lay in the basic conceptual weakness that encouraged the untested assumption that people are best served when the ruling classes originate, execute and administer policies, plans and programmes for their welfare from above.  This misconceived paternalism has reinforced the tyranny of the status quo and has gravely weakened forces of change.  The ‘Law and Order’ pre-occupation of the bureaucratic mind has led  to the entrenchment of the system that the Constitution had promised to transform.
  4. Another fundamental flaw vitiating governance emanated from the lack of  conviction that the consent of the people is the basis of democratic government.  The over-arching theme, a legacy from the colonial days, that people remain a passive category subjects rather than citizens remained firmly rooted on official mind.  People were aroused only at intervals of five years or there about to choose their rulers and to go back again to a life of political passivity.  Political mobilisation of masses mostly remained neglected.  This produced all manner of infirmities and has given rise to alienation of the people from the political system.
  5. Rights of the people are inalienable. The words “We, the people” signify not only the moral and historical insight of founding fathers but they serve to reaffirm they are the source of all constitutional authority and that the test of Good Governance was measure of people’s well being.  However, the functionaries of the State have failed to realize that they are servants of the people and not their masters.  Test of a vibrant democracy is the degree of success in calling its Executive to be accountable to the people.
  6. The new administrative class, working under the mesmeric  spell of colonial attitudes, was reluctant to consider the people as citizens.  They continued to treat them as subjects or ‘ryots’ both owing allegiance to a superior master.  This denial robbed them of power and made it possible for the Executive to diminish the significance of the people.  It is the possession of power that gives people control over their destiny and authority over those whom they have chosen to serve them.
  7. Another fundamental flaw in governance outlined above is inherent in the centralized nature of the Indian State which lays down the parameters of the administration. There is an indissoluble link between the two.  This was evident when the norms of colonial administration, with their long ancestry, came early to stamp their features on the post-independence dispensation. Colonial administration had created a top-down system of command and obedience in which State and local units of government were treated as subordinate to the Central Government.  There is no reason why the Central Government should have large and unwieldy ministries handling subjects like education, health, agriculture, rural development, social welfare, industry, power, etc. when these areas can more conveniently and appropriately be handled at the State, regional or district levels.  The Centre can at best be a clearing house of ideas and knowledge but for it to be actually involved in shaping policy and in allocation of resources is an over-lapping of jurisdiction.  Reallocation of subjects from the three Lists given in the Seventh Schedule could be looked into in this context.  Downsizing of the Government should also follow. Big Governments are not always conducive to efficiency and promptness.  People should know where the buck stops.  But it should always be kept in view that when the Centre does not hold, societies become polarised.

Democracy implies intellectual acceptance of the position that self government is better than even good governance.  Unless self government is ensured by clear devolution of power from the centre to the periphery, people are prevented from participation in Governance. They can not eliminate arbitrariness in executive actions which generally tilts the balance in favour of the privileged. Moreover the ‘top-down’ state of affairs does not legitimise ‘self-government’ which is of primordial value.  ‘Top-down’ administration stifles public initiative.  To make people effective they must consciously enjoy and assert their constitutional entitlements and not be mere supplicants for or objects of administrative largesse.  That is the rationale of the 73rd and 74th amendments to the Constitution. A strong sense of public duty comes from empowerment. People’s attitude changes from one of obedience to authority to active participation in governance.  It is only when the gap between the executive and the people is narrowed down through decentralisation that democratisation can occur. The whole configuration of governance changes if democratic order is conceived not as a ‘once in five year ritual’ of changing the guard but as a continuous renewal of democratic life from a knowledgeable and participative citizen body.  A citizen as a political and social unit could alone take responsibility for transformation of the state of the society.  The essence of the matter is that there should be effective participative democracy at all levels; once people become the fountainhead of power, their role in governance becomes meaningful and effective.  It encourages an active sense of public duty, replacing emphasis from authority and obedience to active participation. The Commission holds that while improving the nature and institutional response of administration to the challenges of democracy is imperative, the system can deliver the goods only through devolution, decentralisation and democratisation thereby narrowing the gap between the base of the polity and the super structure.

Colonisation, Capitalist Development and Tribal Rights in Forest

Joydip Ghosal, Doctoral Candidate, WB NUJS, Kolkata, Guest Lecturer, Surendranath Law College, Kolkata

In this article author tried to reveal the process whereby through the development of capitalistic forest policy and legislation, the traditionally held rights of forest dwellers have been progressively curtailed. It is very much true that the development of social policy is determined largely by the needs of the dominant groups in society— before independence, by the strategic needs of the colonial masters and after independence, the needs of the capitalists and as usual the tribal continue to face tremendous situation. With the growing consciousness on environmental issues, the problem of deforestation has become a live subject of discussion.

Forest has occupied an important position in India from ancient times. The Mahabharata and the Ramayana give picturesque description of forest live in Dandakarnya and Nandavana. Several kings like Ashoka and Shivaji issued orders encouraging the planting of trees along the roads and on camping sites and prohibited the cutting of fruit trees. During the Vedic period, trees were appreciated for their value, shade and medicinal properties and in fact there is strong evidence that the linkages between deforestation and climatic changes were understood.

Before the advent of the British in India the regulation of people’s use of forests was mainly done through local customs. Several temples had forests regarded as sacred and cutting of trees was prohibited. After the advent of the British the traditional rights of the tribal were no longer recognised as rights. In 1894, they became “rights and privileges” and in 1953 they became “rights and concessions”; they were later being regarded as “concessions”. Before 1947, forests were strategic raw materials crucial for imperial interests such as railway expansion and the world wars, in the post-independence period; it has been the commercial, industrial interests who have dictated forest policy.


The crucial watershed in the history of Indian forestry is undoubtedly the building of the railway network. This was created to meet the need for rapid troop communication felt after the Mutiny of 1857 and for enabling the characteristic pattern of colonial trade. Great chunks of forest were destroyed to meet the demands for railway sleepers. Before the coal mines in Bengal and Bihar became fully operative, the railway companies also indulged in widespread use of local timber as fuel for the locomotives.

The concept of state-owned natural habitats in India came into existence in the 19th century with the creation of reserved, protected and village forests by the British. The role of the state as landlord created a dual problem. On the one hand, it imposed the British legal system on an ethnocentric legal order based on customary usage and norms guided by ecological parameters. On the other, it paved the way for a Western model of conservation inherently established on the duality of man and nature.

Before British, natural resources were shared in common by the rural and tribal people. The notion of legal ownership as understood in modern law was absent and forest dwelling communities enjoyed their rights over natural resources even in forests that fell within the purview of the various local kingdoms. The absence of the notion of property did not necessarily imply an absence in the idea of ownership. Dwelling in and working in the forest over years bestowed upon the local community’s occupancy rights or communal native titles derived from their ancestral dominion of land.

The British introduced the concept of property with the imposition of a colonial legal system on an already existing pattern of forest use and protection, an age-old tradition governed by customary usage and common law. They created forest laws for the specific purpose of appropriating natural resources and the easiest way of extracting and controlling these resources was by establishing absolute rights over them. The idea of property was introduced by the British as absolute rights locally vested in a body or in an individual over any land and its resources.


The beginning of a systematic forest policy begin in 1855 when the then Governor-General Dalhousie issued a memorandum on forest conservation. He suggested that teak timber should be retained as state property and trade in teak should be strictly regulated. In 1856, Dietrich Brandis, a German botanist was appointed as the first Inspector-General of forests to the government of India. It was under his guidance, that the forest department was organised and the first forest Act was enacted.


The first Indian Forest Act was enacted by the Supreme Legislative Council. The Act was enacted to regulate forest exploitation, management and preservation. For the first time an attempt was made to regulate the collection of forest produce by the forest dwellers. The forests dwindled and the rights of the local people to the forest produce had also eroded. The law was nothing but the formalisation of these changes. Thus, the socially regulated practices of the local people were to be restrained by law.


The Indian Forest Act of 1878 enhanced the government control over forest. Under the Act, forests were divided into (a) reserved forests, (b) protected forests, and (c) village forests. Persons were to be notified to record their claims over land and forest produce in the proposed reserved and protected forests. Certain Acts like trespass or pasturing of cattle were prohibited. Provisions were also made to impose duty on timber and for private forests.


In 1894, the then British government declared its first forest policy resolution in which state control and commercialisation of forest again formed the dominant motif. The basic aim of the policy was apparently to conserve forests that were being fast depleted. The resolution declared that the sole object with which the State forests were to be administered was the public benefit. It was specified that the claims of cultivation were stronger than the claims of forest preservation and that whenever an effective demand for cultivable land could be supplied from forest area it should be ordinarily granted without hesitation.


The Land Acquisition Act, 1894 conferred power upon the State for the acquisition of land for “public purpose”, enabling the subsequent enactment of the Indian Forest Act and the Indian Mines Act respectively. Eminent domain is only for reasons of public welfare. The term “public purpose” has not been defined in the Act and it has been left to the state to decide what it is. Even though there are provisions in this law for objections and appeals, they are so arcane that it is impossible for tribal to go to the courts and ensure their rights under them. The Indian Government continued with this Act too after independence and used it indiscriminately to acquire land for development projects.

In this Act, the British relied on another legal principle called “res nullies” which means that any property which does not have a documented legal owner can be assumed to be legally unburdened. As the tribal had a communitarian oral culture there was little conception of private property in land among them and absolutely no documentation.


The Forest Act of 1927 prescribed the manner in which forest resources could be exposed to industrial and commercial exploitation. Elaborate provisions were made to extend state control over forests. Section 5 of the Act provides that any fresh clearing, failing of trees, breaking up of land for any purpose is prohibited in a reserved forest. Also, any right over the lands of reserved forest can be acquired only by succession or under a grant by way of written contract made by the government. Provisions were also made for taking over the management of private forests in certain cases. Forests officers were defined as offences punishable under the Act and the Rules made there under.



In the National Forest Policy, 1952 it was declared that the forest policy should be based on paramount national needs. In a way this was an extension of the colonial British policy and it was laid down that the claims of communities living in and around forests should not override national interests. The concept of national interest was interpreted in a very narrow sense. The destruction of the forests for the construction of the roads, building of irrigation and hydro-electricity projects, ammunition factories and other projects were justified in the name of national interest. India’s technically skilled professional forest service thought mainly of increasing the revenue from forests, treating tribal as the enemies of the forest.


The Commission devoted Part IV of its report to forestry. It advocated commercialization of forests at all costs and recommended regularization of forest dwellers rights over forest produce. The Commission stated that the production of industrial wood. The Commission recommended a drastic reduction in people’s rights over forests. It was stated that free supply of forest produce to the rural population and their rights and privileges has brought destruction to the forests and so it is necessary to reverse the process.

The Commission also recommended strengthening forestry legislation for effective implementation of forest policy and enactment of a revised all India Forest Act. In 1985, an administrative change of some significance took place. The Department of Forest was taken out of the control of the Ministry of Environment.


The Forest Conservation Act was passed in 1980 and subsequently amended in 1988. This amendment was taken place after the forest department was transferred from the Ministry of Agriculture to the Ministry of Environment and Forests (MoEF), thus shifting the focus from revenue-earning to conservation. This Act aimed at conservation of forests and wildlife and greater state control in reserved forests and provided for penal measures in case of contravention of these provisions.


The National Forest Policy in 1988 for the first time spoke about the conservation of biological and genetic diversity, restoration of ecological balance, the preservation of the remaining natural forests and the establishment of an extensive protected areas network. The policy spoke about a forestation and social forestry programmes, but primarily focused on the conservation of eco-systems, wildlife and bio-diversity and the restoration of ecological balance. The policy further spoke about the intrinsic relationship between forests and local communities, the protection of their customary rights and recognised the importance of forests as a means of livelihood. It was perhaps the first time that a policy document endeavour to strike a balance between conservation and the rights of local communities over them. But the problem was that the policy was not backed up by any legislative enactment.


The Joint Forest Management was launched as a model of participatory forest management effort. The sources of authority for this programme are the Forest Policy Document of 1988 and a circular of the central government in 1990. Through the circular, the central government issued guidelines for involving village communities and voluntary agencies for regeneration of degraded forest lands. The guidelines envisaged formulation of a Joint Forest Planning Management Scheme, involving preparation of plans for the development and protection of forests with community participation and management. But the crux of the matter is that the programme does not have a legal basis. This means that the activity is possible only at the discretion of the government and can be withdrawn at any time.


In 1992, the 73rd Amendment to the Constitution, which formalized the Constitution of Panchayats as micro institutions of governance, empowered these self-governing bodies to deal with matters concerning forests and other natural resources related matters. Finally, the Panchayat Extension of Scheduled Areas Act, 1996 (PESA) and the Panchayat Raj Act, 1998 conferred ownership of minor forest produce to Gram Sabhas and Panchayats. The JFM notification and the 73rd Amendment were small steps towards bringing back people within the ambit of Indian forest law, and the panchayat laws of 1996 and 98 were infinitely bolder and more positive steps towards social justice.


It is an important law to improve the governance of the Scheduled Areas in such a way so as to protect the interests of tribal. The main idea of this law is to provide greater strength to the village community to protect the community interests. The PESA firmly established the Gram Sabha as the most basic unit of the Panchayati Raj set up. A limitation of the PESA law is that it is applicable only to those areas which are legally regarded as Scheduled Areas. A significant number of tribal living outside the Scheduled Areas are not covered by this legislation. Though PESA gives the rights of control of natural resources, including minor forest produce (MFP), to the respective local communities, has remained largely unimplemented by individual states, since land use is a state subject. States, in their attempts to invite investment, have been reluctant to uphold legislation such as PEAS.


Recently government realized that forests have the best chance to survive if communities participate in its conservation. Recognition of forests rights enjoyed by the forest dwelling Scheduled Tribes on all kinds of forest lands for generations and which includes both bona fide needs of forest land for sustenance and usufruct from forest are the fundamental bases on which the legislation stands. The purpose of the Act is to recognise the rights of forest-dwelling communities and to encourage their participation in the conservation and management of forests and wildlife.

The provisions of the Act are in addition to and not in derogation of other laws that are in force, such as the Forest Act, the Forest Conservation Act etc. As a result, while forest dwelling scheduled tribes (FDSTs) and other traditional forest dwellers may be vested with certain forest rights under the Act, they may be unable to exercise them because they may be subject to the provisions of the other applicable laws. Problems may also arise regarding the jurisdiction of the various authorities under these separate but overlapping laws.


The Constitution of India has adopted special measures for the protection of the interest and welfare of the tribal people. Article 164(1) provides for the appointment of Minister for Tribal Welfare in the states of Bihar, Orissa and Chhattisgarh to take care of the tribal. The Parliament has also enacted the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to prevent the commission of offences of atrocities against tribal and it also contains provisions to establish special courts for the tribal for such offences. The relief of rehabilitation has also been provided to the victims of such offences under this Act. In M. C. Mehta v. Kamal Nath, the Supreme Court laid down the doctrine of “Public trust” whereby the government is visualised as a public trustee and not as the owner of resources. It holds the resources in trust, to be used for the benefit and welfare of the people. As a trustee, it has to protect, maintain, manage and constantly endeavour to improve their quality.

To protect the cultural identity and socio-economic independence, the Constitution of India has put the tribal under Fifth and Sixth Schedule. The Fifth Schedule of the Constitution has provided the provisions as to administration and control of Scheduled Areas and Scheduled Tribes as required under Article 244(1) of the Constitution. The Governor of a state has been empowered to govern the tribal people. The Seventh Scheduled has special provisions for such administration of Tribal Areas in the states of Assam, Meghalaya, Tripura and Mizoram. The Supreme court in Samatha v. State of Andhra Pradesh, explained the position of the administration of Scheduled Areas as follows— the state, by cabinet form of government, is a persona ficta, a corporate sole. The Constitution empowers the state to acquire, hold and dispose of their property. The Governor in his personal responsibility is empowered to maintain peace and good government in Scheduled Area.

The Sixth Schedule to the Constitution empowers the Governor to regulate allotment of land. It imposes total prohibition on transfer of land in Scheduled Areas. The object of the Sixth Schedule is to preserve tribal autonomy, their culture and economic and political justice for preservation of peace and good governance in the Scheduled Areas. It was also made clear that executive power of the state under Article 298 and legislative power of the state are subject to the provisions of the Fifth Schedule. Thus, any law regarding the regulation or transfer of land by the state legislature is governed and delineated to the provisions of the Sixth Schedule.

Under Article 275,the Union Government has been asked to provide Grant-in-aid (each year) for the purpose of promoting welfare of the Scheduled Tribes and under Article 330(1) reservation of the seats have been made in the House of People. The number of seats in any states shall be made on the basis of the size of the population of tribal people in the state. Article 332 provides for reservation of seats for Scheduled Tribes in legislative assemblies of every state (except in Tribal areas of Assam, Nagaland, Meghalaya and Mizoram). But at the same time, Scheduled Tribes may also contest any seats other than the reserved seats.


Continued exploitation of natural resources for increasing economic growth brought with it associated environmental problems. However, these problems were not addressed by the government until 1971, when the Planning Commission wrote a report on the state of India’s environment in preparation for a 1972 UN Conference on the Human Environment. Subsequently, a National Committee on Environmental Planning and Coordination (NCEPC) was formed in 1972 to act as an apex advisory body in all the matters relating to environmental protection and improvement. The fifth Five Year Plan (1974-79) stated that the NCEPC should be involved in all major industrial decisions, so that development can be balanced with environmental management. From all these, environmental decisions for the nation were de facto handed over to a group of bureaucrats, whereas the public, which was at the receiving end of these developmental policies, had no role.

In India, the central government has claimed sole jurisdiction over environmental matter because, the environmental rules were derived from international obligations, as India was a signatory to the 1972 UN Declaration. In 1976, the 42nd Amendment to the Indian Constitution moved the subject of ‘forest’ and “protection of wild animals and birds” from the State List under the Seventh Schedule to the Concurrent List bringing them within the purview of the Centre. It was under these legal bases that the Air Act of 1981 and the Environment Protection Act of 1986 were enacted with no public debate or state role.

The Industrial Policy Resolution of 1956 gave primacy to role of the state to assume a primary responsibility for industrial development. The government established large industrial establishments as Public Sector Units (PSUs) through the 60s and 70s, and it tightly regulated the private sector. The government ownership of industries resulted in a conflict of interest within the government which had to promote industries as well as to address environmental concerns. Given that, environmental concerns were introduced to the government much later after these industries were set up, and only because of external forces (through UN Declarations), industrial interests were prioritized over environmental issues.


There has always been a movement to protect and preserve the identity and rights of tribal people. The term “indigenous people” has been used for such persons. After the Second World War, various efforts have been made to recognise and implement the rights of tribal people. The International Commission on Environment and Development in 1987 cautioned that tribal and indigenous people would need special attention as the forces of economic development disrupt their traditional life-style that can offer modern societies many lessons in the management of resources in complex forest, mountain and dry land ecosystem.

The Commission also recommended for the recognition of their traditional rights, to give them right to have a decisive voice in formulating policies about resource development in their area. The starting point for a just and human policy for such group is the recognition and protection of their traditional rights to land and other resources that sustain their way of life—rights they may define in terms that do not fit into standard legal systems.


The Earth Summit, 1992 affirming the Stockholm Declaration of 1972 held at Rio-de-Janeiro, also proclaimed that Indigenous people and their community has a vital role in environmental management and development because of their knowledge and traditional practices. State should recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.


The Convention on Biological Diversity, 1992 also recognised the customary use of biological resources according to traditional cultural practices. It was also declared that traditional practices are relevant to the conservation of biological diversity and therefore, national legislation to respect and preserve the knowledge and practices of indigenous people and local community must be passed. It was recognised by the Convention that indigenous people are closely depended on biological resources and have knowledge, innovations and practices relevant to conservation of biological diversity and the sustainable use of components. Now, almost all the nations have ratified and adopted it.


India ratified the Indigenous and Tribal Populations Convention, 1957, a Convention concerning the protection and integration of indigenous and other tribal and semi-tribal populations in independent countries on 29.09.1958. A subsequent revision to the Convention in 1989 still awaits India’s ratification. The revised Convention adopts new international standards on the subject with a view to remove the assimilationist orientation of the earlier standards. It recognises the aspirations of these people to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the states in which they live.


In the beginning the judiciary seemed to have rejected the plea of environmental degradation when the state attempted to monopolise private forests for being distributed among agricultural labourers.

In State of Kerala v. Gwalior Rayons the Supreme Court observed that a law vesting ownership of forest in the state was found as valid an agrarian reform bringing benefits to landless labourers, tribal people and other proletarian groups in a populated state. The court refused to entertain the plea of large-scale deforestation and ecological imbalance on the ground that the state is vested with the power to make a suitable law for agrarian reform.

In State of Tripura v. Sudhir Kumar Ranjan Nath, the Supreme Court did not dismiss the Forest Act as a mere taxing enactment, but considered it as one to preserve, protect and promote the forest wealth in the interests of the nation.

In Pradeep Krishen v. Union of India, the Supreme Court observed that if one of the reasons for the shrinkage in the entry of villagers and tribal living in and around the sanctuaries and the national parks, there can be no doubt that urgent steps must be taken to prevent any destruction or damage to the environment, the flora and fauna and wildlife in these areas.

In Samatha v. State of Andhra Pradesh, the Court held that government lands, tribal lands and forestlands in the Scheduled Areas could not be leased out to non-tribal or private companies for mining or industrial operations. However, the Supreme Court in a latter judgment in Balco Employees’ Union v. Union of India limited the application of the Samatha judgment only to the state of Andhra Pradesh. The Court also expressed its reservations about the correctness of the Samatha decision and suggested that the matter be decided by a five judges Constitutional Bench. However, till date, no such reference has been made.

The outcome of the case of T. N. Godavarman Thirumulkpad v. Union of India was set of Supreme Court orders that effectively constrained the rights of tribal. When the Court forbade the Union Government to allow indiscriminate encroachments without its permission, it was erroneously interpreted as an eviction notice of the tribal by the MoEF, and this led to large scale eviction drives. Widespread protests led to re-affirmation on the part of the MoEF to follow the 1990 guidelines, but in spite of this, evictions continued.


Through this analysis, it was found that, before 1947 Indian forests fulfilled the strategic interests of British imperialism and after independence the needs of the mercantile and industrial players. In both these periods, the impact of state policies on the tribal communities deriving sustenance from the exploitation of forests has been a uniform one. It has been shown, how the strategies evolved by colonial management have been taken over by post-colonial forest policy and further been modified and protected. The principles of state monopoly and exclusion of forest communities on which they are based, have been utilized by Indian forestry to serve the interests of dominant classes.

In a country like India, the environment is a source of livelihood for many, particularly the tribal. Environmental degradation has tremendous human costs. It hits the tribal most and directly too. Unfortunately, even conservation projects necessary for promoting national or global interests, such as the preservation of biodiversity, have an adverse impact on the tribal. If, for example, the dependence of the tribal on forests for livelihood is seen as a hindrance to their conservation, particularly of wildlife, the adverse effect of the projects on the tribal would have to be minimized. The tribal would have to be properly compensated and resettled in case they are shifted out of national parks or wildlife sanctuaries.

It is well established that the forest region of India, despite being resource rich, inhabits the poorest people who have not benefited from social and economic development to the same extent as people in other regions have. They must include treating tribal as partners in profit—partners contributing land as capital. Ignoring the importance the socio-cultural and environmental aspects of forests, the government has made all-out efforts to bring resource-intensive mode of development that would create ecological instability and violate the fundamental rights of people.

Across India, forests conserved by local communities for decades are being handed over to powerful commercial interests. This is in the name of “development at all costs” that accompanies the countries quest to become one of the world’s fastest growing economies. At stake are lacks of hectares of bio-diversity rich natural resource systems, the livelihoods of several million people who depend directly on these forests. In fact, in many cases, destructive development activities, rather than the activities of tribal and other forest-dependent communities, are responsible for the over-exploitation, neglect and denudation of forests.



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Tracing official bias from Gullapalli to Doctrine of necessity

Palak Gupta, Student of Law, Gujarat National Law University

It is the spirit and not the form of law that keeps justice alive.  ~ Earl Warren.

Natural Justice is an important concept in administrative law. In the words of Megarry, J. ((John v. Rees, (1969) 2 All ER 274: (1970) 1 Ch D 345))it is ‘justice that is simple and elementary, as distinct from justice that is complex, sophisticated and technical.’ It is ethico- legal principle. The origin of this principle is from the case of king v. Chancellor where Justice Fortescue held that first hearing of human history happened in heaven in Garden of Eden. Even God himself gave the opportunity of hearing to Eden. Principles of Natural Justice are the law evolved along with the history of human. P.N. Bhagwati in the case of Maneka Gandhi v. UOI held that principles of Natural Justice are a universal law. It has been termed as fair play in action in case of Re K. (H)(an infant) by Lord Parker.

Principles of Natural Justice are based on two maxims Audi Alteram Partem and Nemo Judex in causasua. Courts are bound to follow these principles while giving judgment. Audi Alteram Partem means hear the other side. The principle of Nemo judex in causasua means that no person should be judge in its own cause.It means that an adjudicator should be disinterested and unbiased. Literally it means that no person should be judge in his own case. It means that justice should not only be done, but should also seem to be done. Bowen J. “ judges like Ceasar’s wife should be above suspicion”.

Bias may arise either due to pecuniary interest or personal interest. However small a pecuniary bias is, it should disqualify the judge from being a member of the tribunal. Personal bias may arise due to blood relations, marital relations, friendship or hostility. For this principal it is necessary to prove that there is a real likelihood of bias.

Official bias is the most impersonal kind of bias. The administration itself is usually a party in many departmental proceedings before bureaucratic authorities. Therefore, an authority may have official bias towards the department to which it is attached, in a dispute between the department and a private party, or may have a policy bias. His bias may be regarding pursuing the policy, which is followed by his department. So when an official acts as an adjudicator he can’t completely shed off his bias, nor can he be said to be totally impartial or neutral. The difficulty, which arises in this situation, is whether the official is to be disqualified from acting as an adjudicator because of policy bias. Exception to official bias is the Doctrine of Necessity.

English law: just a mere interest a minister has in a scheme would not disqualify her on the ground of bias. This was held in Franklin V Minister of town and country planning.

Indian Law- the principal accepted in India is that a mere official or policy may not necessarily be held to disqualify an official from acting as adjudicator. The criteria for him to be disqualified is that there is total non-application of mind on his part or he would have acted according to the directions given to him by his superior authority and has not decided the matter independently.

The present case of Gullapalli Nageshwara Rao is based on the question of inquiry. Whether the element of official bias can be seen when the minister being head of the department gave the hearing and approves the scheme?

Inquiries: Inquiry is to be held by the concerned authority before taking a decision, it may happen that one body makes the inquiry and, on its report, some other authority takes a decision. In such a case, the inquiry body has no power to decide, nor the inquiry report has any binding force by itself. But the inquiry report constitutes an important link in the chain of decision-making process.

A Question which in such case arise is whether an inquiry under a specific statute is administrative or quasi judicial in nature? Some inquiries have been held to be administrative and some quasi-judicial requiring application of the principles of natural justice.


In India, the SC dealt with the question of official bias in this case. The facts of Gullapalli Nageshwara Rao v AP State Road Transport Corporation ((AIR 1959 SC 308,(1959) SCJ 967)), which is known as first Gullapalli case, are as follows: the petitioners were carrying on motor transport business for several years in Krishna district of Andhra Pradesh. The state transport undertaking published a scheme for nationalization of motor transport in the state from the date to be notified by the state government. It invited objections to the scheme. The petitioners, among others filed their objection to the scheme. The secretary of transport department gave a personal hearing to the objections and heard the representations made on behalf of the state transport undertaking. The entire material gathered by him was placed before the Chief Minister who approved the scheme. The approved scheme was subsequently published.

Procedural history

The petitioners assailed the constitutional validity of scheme under article 32 of the constitution before the SC on various grounds. The SC upheld the objections and quashed the order approving the scheme.

Contention by the One of the objections was that, the person who had initiated the scheme had also heard the objections. He was therefore, biased in favor of scheme, and hence could not have given fair hearing.

The court held that the hearing given by secretary clearly offended the principles of Natural Justice and, hence the proceedings involving the hearing were void. Another objection the court upheld was that since the hearings were held before one person and another gave the final decision, the rules of Natural Justice were violated. The majority held that since the ultimate decision taken after hearing both the sides was quasi judicial in nature, the functions of hearing and deciding could not be vested in two different persons.

Subsequent amendments

Under the amend act, a minister was required to decide upon a scheme. In Nageswara Rao v Andhra Pradesh ((AIR 1959 SC 1376, (1960) SCJ 53)), which is known as second Gullapalli case the competency of minister to give the hearing was challenged.

Appeal under article 226 of the constitution: Appellants moved to High Court for writs of certiorari to quash the order passed by the Government confirming the scheme and also to quash the subsequent orders made by the Regional Transport Authority canceling their stage carriage permits. HC rejected the petitions and appellant appealed.


  1. Whether a statute confers power on authority and imposes a duty on it to be a judge of its own cause or decide a dispute, which has official bias, the doctrine of bias is qualified to the extent of the statutory authorization?
  2. Whether the State Government, in the present case, acted in violation of the principles of Natural Justice?
  3. Whether the Chief Minister by his acts and speeches disqualified himself to act for the State Government in deciding the dispute?

Petitioner’s contention

  1. The chief minister who was in charge of transport department was incompetent to hear the objection as the same disability is attached to him, which was attached to the Secretary in charge of the Transport Department on the previous occasion.
  2. The Chief Minister by his acts, such as initiating the scheme, and speeches showed a clear bias in favor of the Undertaking and against the private bus operators and therefore on the basis of the principles of natural justice accepted by this Court, he was precluded from deciding the dispute between the said parties.
  3. Any kind of bias, whether financial or other, for or against any party, or any position that might impute bias, in a judicial authority, must disqualify him as a judge. But when a State Legislature or the Parliament violates the aforesaid principals, such statute, unlike one passed by the English Parliament, has to stand scrutiny in the light of the fundamental rights enshrined in the Constitution.

Respondent’s Contention (Advocate General)

In this case he tried to distinguish between “official bias” of an authority, which is inherent in a statutory duty imposed on it and “personal bias” of the said authority in favor of, or against, one of the parties.

The Chief Minister of the Government cant be disqualified from deciding the dispute merely on the fact that he had supported the policy of nationalization, or even the fact that the Government initiated the said scheme unless it was established that he was guilty of personal bias, and however there was no legal proof establishing the said fact.

Principle accepted by counsel for both the sides

If a member of a judicial body is bias, it may be financial or any other in favor of, or against, any party to a dispute, or is in such a position that there is a likelihood of bias he ought not to take part in the decision or sit on the tribunal and that any direct pecuniary interest, however small, in the subject-matter of inquiry will disqualify a judge, and any other interest if a reasonable suspicion of bias can be ascertained. These principles are applicable to quasi-judicial bodies too.


 The judgment was delivered by Justice Subba Rao.

1. Regarding the first issue court referred two cases The King v Bath compensation and the king v Leicester Justices.

The decision in the first case was that unless the legislature clearly and expressly ordained to the contrary, the principals of Natural Justice can’t be violated. These decisions showed that in England a statutory invasion of the common law objection on the ground of bias is tolerated but invasion has to be strictly in conformity with the statutory exceptions. However in India, the law made by parliament or state legislature should be in concurrence with he fundamental rights, which are declared in part III of the constitution.

2. The question regarding that the chief minister acted in violation of natural justice, court rejected this argument mainly on two grounds:

  1. Since the appellants never raised the question regarding the competence of the Chief Minister to decide the objections on the last occasion and the court on that basis gave judgment. So now it is not open for petitioners at this stage to reopen the closed controversy or take a contrary position. It was also held that the minister was competent to give hearing even though he was the formal head of the transport department.
  2. There are no merits in this contention. It was held that there is a distinction between the position of a Secretary of the Department and the Chief Minister of the State. Under the constitution governor is to act on the advice of ministers headed by Chief Minister.

Under the constitution and the rules framed minister who is in charge of a department is primarily responsible for the disposal of the business pertaining to that department, but the entire ministry is responsible for the advice to the minister. But the position held by the Secretary of a department is different.

Though the Chief Minister made the formal orders, in effect and substance, the enquiry was conducted and personal hearing was given by one of the parties to the dispute itself. So the argument of the counsel that the Chief Minister is part of the department constituted as a statutory Undertaking under the Act cannot be accepted.

3. Whether the Chief Minister by his acts and speeches disqualified himself to act for the State Government in deciding the dispute?

It must be held that it has not been established by the appellants that the Chief Minister made the speeches indicating his closed mind on the subject of nationalization of bus transport in Krishna District. If these newspaper cuttings are excluded from evidence, the factual basis for the appellants’ argument disappears. We, therefore, hold that the Chief Minister was not disqualified to hear the objections against the scheme of nationalization.


In this case, the Supreme Court has clearly voted against the separation between the hearing and the decisional functions. Said the court, “if one person hears and another decides, the personal hearing becomes an empty formality ((I.P. Massey, administrative law (6th ed. 2003).)).” The Supreme Court decision emphasized on the fact that one who decides must hear.

Minority view

Sinha, CJ in his dissenting opinion, gave several reasons for his view that the function discharged by the government was administrative. First, no objective tests have been laid down for the consideration of the government, such terms as efficient, adequate, public interest, were matters of policy and opinion. Second, the idea of hearing prescribed by the statute was not to invite claims by the individual operators, but to collect information having a bearing on soundness and feasibility of the scheme. Third, the government was as much interested in the scheme as the undertaking, which was the creature and the limb of the government, and, therefore, there was no question of the government functioning as an adjudicating authority between the two rival claimants ((MP Jain & SN Jain, principles of administrative law(5th ed. 2007).)).


It has been criticized primarily on the ground of impracticability in the modern administrative process.

A scholar pointed out that it is unrealistic to expect the CM to give the time required for a public hearing, which could adequately explore all facts and policy issues involved and permit all interested parties to appear. On the other hand, if the entire delegation to subordinate official conducting the hearing is given, the importance of the ultimate question may be highly undesirable, perhaps even unthinkable. Thus a government is faced with a dilemma whether the official with final deciding authority must himself conduct the hearing or unduly delegate a power of decision, which should be retained by the Chief Minister, or of seriously interfering with other duties of the Chief Minister.

The Gullapalli decision is not in concurrence with the governmental practice, and is also difficult to follow. The judicial view on this point remains ambiguous.

Subsequent cases in which exception was made to official bias by applying Doctrine of Necessity

In this case SC has made an exception to official bias. Here SC has made an exception by impliedly using doctrine of necessity. It has got expressed approval in subsequent cases from the courts, namely Ashok Kumar Yadav v State of Haryana (([1985] 4 SCC 417)), Tata Cellular v. UOI (([1994] 6 SCC 651)), and Election Commission of India v Dr. Subramanian Swamy (([1996] 4 SCC 104)).

In the case of Ashok Kumar Yadav v. State of Haryana, the State Public Service Commission did the decision about the selection process. This was challenged as according to Sec 3 (11) member of PSC by constitutional requirement has to mandatorily sit in the election process. The issue in this case was if the relative of member comes then is the selection process vitiated? SC held that even though bias is attracted in this case, but if the member doesn’t sit in the selection procedure then it would be unconstitutional as it will be in violation of Section 3(11) of the Act. SC by applying doctrine of necessity expressly declared that it is an exception to official bias. Reasonable suspicion of bias can be excluded if no substitution is possible.

In the case of Tata Cellular v. UOI, there was a tender for giving license for operating cellular mobile in 4 metros. The acceptance of tender made by evaluation committee has been challenged on the ground of bias. Director General of Telecommunication is the technical member of evaluation committee. His presence is required in evaluation of tender. His son who is working in one of the company has applied for license. So the committee has issued license to the son, the bias is thereby alleged. SC held that there is a remote bias. Bias in this case is not accepted. Here doctrine of necessity is applied, as no substitution is possible.

However it got a narrow view in the case of Election Commission of India v. Dr. Subramaniam Swamy. In this case it was held that mere necessity is not sufficient, but absolute necessity is required. Jayalalita was convicted in relation to land cases. Subramaniam who was a political opponent wrote a letter to Governor seeking for disqualification of Jaylalita by virtue of Article 191. Governor can act only on the basis of recommendation of Election Commission, so he referred the matter to EC. Jaylalita moved to HC, which held that EC can’t decide the matter, as there is personal bias because of friendship between EC & Subramaniam. Appeal was filed to Division Bench of HC. It held that single bench has erred in its decision. Appeal was filed to SC. SC agreed that there is chance of personal bias, but held that EC being 3 member body, constituting of CEC and 2 other members. So even if CEC is not present the other 2 members can decide the matter. But if there is division of opinion between the two members then only CEC will be called to decide the matter, only in case of absolute necessity.


This case is noteworthy as the Supreme Court made an exception by rejecting official bias and impliedly applied the doctrine of necessity. The doctrine of necessity got express approval in the case Askoh Kumar Yadav v State of Haryana, 1987. Further, the doctrine of absolute necessity was applied in the case Election Commission of India v.  Dr. Subramaniam Swamy, 1996.

Since Gullapalli I, the SC has continuously diluted the stance, which it has adopted in this case. For instance in Gullapalli II the court didn’t object to the procedure that the minister heard the objections in place of secretary, as he was not a part and parcel of the department, which is concerned in making the policy. According to the court, secretary is a part of department while the minister is only primarily responsible for the disposal of the business pertaining to that department. In subsequent cases the Supreme Court appears to have further relaxed its attitude on matters regarding disqualification, which arises from policy bias, and the court has shown a further liberal approach in this respect from the departmental point of view.

Elections in India and related Laws

Ipsita Mishra, Student of Law, NLU, Odisha

India is the largest democracy in the World. Since 1947 free and fair elections have been held at regular intervals as per the principles of the Constitution, Electoral Laws and System. The Election Commission of India has complete control over the elections. Election Commission of India is a permanent Constitutional Body. The Election Commission was established in accordance with the Constitution on 25th January 1950 ((See http://eci.nic.in/eci_main1/the_setup.aspx)).

Elections are conducted according to the constitutional provisions, supplemented by laws made by Parliament. The major laws are the Representation of the People Act, 1950, which mainly deals with the preparation and revision of electoral rolls, the Representation of the People Act, 1951 which deals, in detail, with all aspects of conduct of elections and post election disputes.

Appointment & Tenure of Commissioners

The President appoints Chief Election Commissioner and Election Commissioners. They have tenure of six years, or up to the age of 65 years, whichever is earlier. They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India. The Chief Election Commissioner can be removed from office only through impeachment by Parliament.

Election Machinery

The Commission has a separate Secretariat at New Delhi, consisting of about 300 officials, in a hierarchical set up. Two Deputy Election Commissioners who are the senior most officers in the Secretariat assist the Commission. They are generally appointed from the national civil service of the country and are selected and appointed by the Commission with tenure. Directors, Principal Secretaries, and Secretaries, Under Secretaries and Deputy Directors support the Deputy Election Commissioners in turn. There is functional and territorial distribution of work in the Commission. The work is organized in Divisions, Branches and sections; each of the last mentioned units is in charge of a Section Officer. The main functional divisions are Planning, Judicial, Administration, Information Systems, Media and Secretariat Co-ordination.
The territorial work is distributed among separate units responsible for different Zones into which the 35 constituent States and Union Territories of the country are grouped for convenience of management. At the state level, the election work is supervised, subject to overall superintendence, direction and control of the Commission, by the Chief Electoral Officer of the State, who is appointed by the Commission from amongst senior civil servants proposed by the concerned state government. He is, in most of the States, a full time officer and has a team of supporting staff.

At the district and constituency levels, the District Election Officers, Electoral Registration Officers and Returning Officers, who are assisted by a large number of junior functionaries, perform election work. They all perform their functions relating to elections in addition to their other responsibilities. During election time, however, they are available to the Commission, more or less, on a full time basis.

The gigantic task force for conducting a countrywide general election consists of nearly five million polling personnel and civil police forces. This huge election machinery is deemed to be on deputation to the Election Commission and is subject to its control, superintendence and discipline during the election period, extending over a period of one and half to two months.

Budget & Expenditure

The Secretariat of the Commission has an independent budget, which is finalised directly in consultation between the Commission and the Finance Ministry of the Union Government. The latter generally accepts the recommendations of the Commission for its budgets.

The major expenditure on actual conduct of elections is, however, reflected in the budgets of the concerned constituent unit of the Union – State and Union Territory. If elections are being held only for the Parliament, the expenditure is borne entirely by the Union Government while for the elections being held only for the State Legislature, the expenditure is borne entirely by the concerned State. In case of simultaneous elections to the Parliament and State Legislature, the expenditure is shared equally between the Union and the State Governments. For Capital Equipment, expenditure related to preparation for electoral rolls and the scheme for Electors’ Identity Cards too, the expenditure is shared equally.

Executive Interference Barred

In the performance of its functions, Election Commission is insulated from executive interference. It is the Commission which decides the election schedules for the conduct of elections, whether general elections or bye-elections. Again, it is the Commission, which decides on the location polling stations, assignment of voters to the polling stations, location of counting centres, arrangements to be made in and around polling stations and counting centres and all allied matters.

Election Schedule

The Commission normally announces the schedule of elections in a major Press Conference a few weeks before the formal process is set in motion. The Model Code of Conduct for guidance of candidates and Political Parties immediately comes into effect after such announcement. The formal process for the elections starts with the Notification or Notifications calling upon the electorate to elect Members of a House. As soon as Notifications are issued, Candidates can start filing their nominations in the constituencies from where they wish to contest. These are scrutinised by the Returning Officer of the constituency concerned after the last date for the same is over after about a week. The validly nominated candidates can withdraw from the contest within two days from the date of scrutiny.

Contesting candidates get at least two weeks for political campaign before the actual date of poll. On account of the vast magnitude of operations and the massive size of the electorate, polling is held at least on three days for the national elections. A separate date for counting is fixed and the results declared for each constituency by the concerned Returning Officer. The Commission compiles the complete list of Members elected and issues an appropriate Notification for the due Constitution of the House. With this, the process of elections is complete and the President, in case of the Lok Sabha, and the Governors of the concerned States, in case of Vidhan Sabhas, can then convene their respective Houses to hold their sessions. The entire process takes between 5 to 8 weeks for the national elections, 4 to 5 weeks for separate elections only for Legislative Assemblies.

Political Parties & the Commission

Political parties are registered with the Election Commission under the law. The Commission ensures inner party democracy in their functioning by insisting upon them to hold their organizational elections at periodic intervals. Political Parties so registered with it are granted recognition at the State and National levels by the Election Commission on the basis of their poll performance at general elections according to criteria prescribed by it.

The Commission, as a part of its quasi-judicial jurisdiction, also settles disputes between the splinter groups of such recognised parties. Election Commission ensures a level playing field for the political parties in election fray, through strict observance by them of a Model Code of Conduct evolved with the consensus of political parties. The Commission holds periodical consultations with the political parties on matters connected with the conduct of elections; compliance of Model Code of Conduct and new measures proposed to be introduced by the Commission on election related matters.

Advisory Jurisdiction & Quasi-Judicial Functions

Under the Constitution, the Commission also has advisory jurisdiction in the matter of post election disqualification of sitting members of Parliament and State Legislatures. Further, the cases of persons found guilty of corrupt practices at elections which come before the Supreme Court and High Courts are also referred to the Commission for its opinion on the question as to whether such person shall be disqualified and, if so, for what period. The opinion of the Commission in all such matters is binding on the President or, as the case may be, the Governor to whom such opinion is tendered. The Commission has the power to disqualify a candidate who has failed to lodge an account of his election expenses within the time and in the manner prescribed by law. The Commission has also the power for removing or reducing the period of such disqualification as also other disqualification under the law.

Judicial Review

The decisions of the Commission can be challenged in the High Court and the Supreme Court of the India by appropriate petitions. By long standing convention and several judicial pronouncements, once the actual process of elections has started, the judiciary does not intervene in the actual conduct of the polls. Once the polls are completed and result declared, the Commission cannot review any result on its own. This can only be reviewed through the process of an election petition, which can be filed before the High Court, in respect of elections to the Parliament and State Legislatures. In respect of elections for the offices of the President and Vice President, such petitions can only be filed before the Supreme Court.

Media Policy

The Commission has a comprehensive policy for the media. It holds regular briefings for the mass media-print and electronic, on a regular basis, at close intervals during the election period and on specific occasions as necessary on other occasions. The representatives of the media are also provided facilities to report on actual conduct of poll and counting. They are allowed entry into polling stations and counting centres on the basis of authority letters issued by the Commission. They include members of both international and national media. The Commission also publishes statistical reports and other documents which are available in the public domain. The library of the Commission is available for research and study to members of the academic fraternity; media representatives and anybody else interested. The Commission has, in co-operation with the state owned media – Doordarshan and All India Radio, taken up a major campaign for awareness of voters.

International Co-operation

India is a founding member of the International Institute for Democracy and Electoral Assistance (IDEA), Stockholm, Sweden. In the recent past, the Commission has expanded international contacts by way of sharing of experience and expertise in the areas of Electoral Management and Administration, Electoral Laws and Reforms. Delegates of the Commission have visited Sweden, U.K, Russia, Bangladesh, and the Philippines in recent years. Election Officials from the national electoral bodies and other delegates from the several countries – Russia, Sri Lanka, Nepal, Indonesia, South Africa, Bangladesh, Thailand, Nigeria, Australia, the United States and Afganistan have visited the Commission for a better understanding of the Indian Electoral Process. The Commission has also provided experts and observers for elections to other countries in co-operation with the United Nations and the Commonwealth Secretariat.

New Initiatives by the Election Commission

The Commission has taken several new initiatives in the recent past. Notable among these are, a scheme for use of State owned Electronic Media for broadcast/telecast by Political parties, checking criminalisation of politics, computerisation of electoral rolls, providing electors with Identity Cards, simplifying the procedure for maintenance of accounts and filling of the same by candidates and a variety of measures for strict compliance of Model Code of Conduct, for providing a level playing field to contestants during the elections.

Problems faced

Increasingly money hungry elections leading to unethical, illegal and even mafia provided electoral funding.  The terribly high cost of elections in turn, has led to increased corruption, criminalisation and black money generation in various forms.

  1. With the constituents/electors being the same for all directly elected representatives from the lowest Panchayat level to the Lok Sabha level, there are competing role expectations and conflict of perception.
  2. With the electorate having no role in the selection of candidates and with majority of candidates being elected by minority of votes under the first-past-the-post system, the representative character of the representatives itself becomes doubtful or so to say their representational legitimacy is seriously eroded.
  3. Inaccurate and flawed electoral rolls and voter ID leading to rigging and denial of voting right to a large number of citizens.
  4. Problems in the conduct of elections:
    1. Booth capturing and fraudulent voting by rigging and impersonation.
    2. Flagrant use of raw muscle power in the form of intimidating voters either to vote against their will or not to vote at all, thus taking away the right of free voting from large sections of society and distorting the result thereby.
    3. Involvement of officials and local administration in subverting the electoral process
    4. Engineered mistakes in counting of votes
  1. Criminalisation of the electoral process
  2. Divisive and disruptive tendencies including the misuse of religion and caste in the process of political mobilization of group identities on non-ideological lines.
  3. An ineffective and slow process of dealing with election petitions, rendering the whole process meaningless.
  4. Fake and non-serious candidates who create major practical difficulties and are also used to indirectly subvert the electoral process.
  5. Incongruities in delimitation of constituencies resulting in poor representation.
  6. Problems of instability, hung legislative houses and their relation to the electoral laws and processes.
  7. Last but not the least, loss of systemic legitimacy due to decay in the standards of political morality and decline in the spirit of service and sacrifice in public life.

Elections in parts of the country have become synonymous with intimidation of voters specially poorer sections, rigging, booth capturing, violence against and even killing of candidates and political workers, connivance of officials at the polling stations and at times a complete hijacking of the polling process by unruly and criminal elements. Unfortunately, over a period of time local police forces have also allegedly become involved in the above by becoming partisan and by being guided by local loyalties, caste considerations, as well as by being easily bribed for connivance. What is disturbing are the sporadic allegations of even the central forces acting in a partisan way in some places. Reports of above irregularities in the conduct of elections have become so commonplace that these are not news anymore. Many suggestions have been made to address these issues and most relate to implementing our existing rules and laws effectively. But experience has shown that laws in a low accountability society like India are known more for violation than for any degree of compliance.

The Suggested Reform Options

The suggestions for reform can generally be placed into three broad categories.  The first category attempts to tackle the problems within the boundaries of the current electoral system.  The second category goes a bit further and takes a stand that the present electoral system itself needs to be modified. (The emphasis is on modification or reform and not on altering the basic framework of the system). Both of these categories have to be dealt with together because there is considerable overlapping between the two and we have to view reform suggestions as an integrated package and not piecemeal. There is a third approach which seeks to strike at the root of the problem which is that of the terrible high costs of elections and the question of finding legitimate funds for the purpose.  The suggestion is to cut down the costs drastically by following the Gandhian principles of decentralization of power down to the grassroots levels and building multitiers of Government from below in a bottom-up instead of the present topdown approach.  It is stated by those advocating this approach that the only way to conduct a meaningful electoral exercise in this country is to have direct elections only at local levels with the upper tiers filled by representatives indirectly elected by an electoral college consisting of the representatives manning the lower tiers.

A true democracy as advocated by Gandhi ensures that local, state and national representatives are accountable to the people for local, State and national matters respectively through effective transparency. Such one-to- one accountability may promote responsible politics and attract patriotic and competent professionals and social workers to politics. Our present system based on diffused accountability breeds corruption and attracts self-seekers to politics.  For this breed, interests of national development, welfare of the people and needs of god governance take lower priorities, if any.

The elected representative is too far removed from the people as there are an average of one million voters for each Lok-Sabha constituency spread over a large geographical area. To influence the choice of such a large and geographically dispersed number of voters, social action on the part of the candidate is totally inadequate. And, this creates space and scope for using both money and muscle power. It is no surprise therefore that the candidates have to spend huge amounts of money at the time of campaigning to “purchase” the votes of these distant voters. And this is done mostly through a host of intermediary brokers who become the link in this transaction. These huge election expenses breed huge corruption. This also means that the electors are in no position to hold the candidate accountable nor does the candidate consider himself accountable to these people.

Based on the Indian ethos, Gandhi had advocated a low-expense election system linked with watchdog councils and separate elected chief executives at each local level. He proposed a highly democratic and, what is more important, a highly accountable system. More thought out and more in keeping with the evolution of political culture in our country, many scholars have in recent years adapted these thoughts in their work and advocated a system of direct elections only at the grassroots of the Indian democracy. They propose that without in anyway interfering with the basic structure or features of the Constitution and while fully continuing the parliamentary system, some reforms be brought in the electoral system.  Direct elections should be held on the basis of adult franchise at the level of Panchayats and other local bodies. Panchayats and other local bodies could elect the zila parishads and they could together elect the State legislature. These three could elect the Parliament and in the last analysis the four of these could elect the President. The Prime Minister and the Chief Ministers could be elected by the Parliament and the State Legislatures concerned.  The President, the Prime Minister and the Chief Ministers in order to be elected should each necessarily secure  no less that 50%+1 of the votes cast.  Once elected, the Prime Minister or a Chief Minister should be removable only by a constructive vote of no-confidence.

The fact that the directly elected representatives are all at the grassroots level where they are in contact with their electors on a daily basis, would mean that their accountability to the people will always be high. Corruption will not get the kind of boost and inducement that it gets presently because of an unaccountable remote representative doing what he pleases.

The representatives elected at the grassroots level will also have to win on a 50%+1 vote principle so that their appeal is more universal than parochial. They would then be truly legitimate representatives of their people.  In the alternative, at the lowest tier double-member or multiple member constituencies could be considered.  Local elections do not entail heavy costs. The cost to political parties of indirect State and national elections will be low. Since the national and State governments will handle only higher-level infrastructure and coordination, indirect elections backed by party primaries will facilitate emergence of the best leadership. The ills in the present “first-past-the-post” system will be eliminated because local governments will handle all social issues and State and national governments shall be accountable to local governments as advocated by Gandhi who will have elected them. This will nurture culture, education and values and gradually eliminate social discords. Also, this election process, it is claimed, has the greatest potential to bring public service spirited and sacrifice oriented people to the fore.

There are strong arguments in favour of this Gandhian model and it would be worthwhile that this option is studied deeply and debated widely.  Part II, however, discusses some reform options that may be possible and found necessary within the four walls of the existing system of elections.


If there is continuous community involvement in political administration punctuated by activated phases of well discussed choice of candidates by popular participation, much of unnecessary expenditure which is incurred today could be avoided. Considerable distance may not have to be travelled by candidates nor hidden skeletons in political cupboards tactically uncovered, propagandist marijuana skillfully administered nor violent demonstrations attempted. The dawn-to-dawn multiple speeches and monster rallies, the flood of posters and leaflets and the organizing of transport and other arrangements for large numbers would become otiose. Large campaign funds would not be able to influence the decision of the electors if the selection and election of candidates becomes people’s decision by discussion and not a Hobson’s choice offered by political parties” thus observed the Hon’ble Supreme Court of India.
We have miles to go before we can achieve this ideal goal. Till then, we have no way other than to follow the advice of the Chandogya Upanishad “Yadeva vidya karoti shradhaya upanishadhaha trivisham virothavathi.” It means that if we have faith and conviction and apply our knowledge with deep analytical skills, our action becomes strong and successful. The Indian Constitution does not provide for a formal referendum. But no one can prevent an informal referendum through modern electronic means (J.M. Lyngdoh). Let us therefore join our hands together to strengthen the noble efforts of the Election Commission aimed at curbing money power so that Indian democracy becomes “speaking truth to power, to make truth powerful and power truthful.”