Public Law in Indian Legal System

7/28/2019 Public Law in Indian Legal System

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ELEMENTS OF JURISPRUDENCE

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PROJECT REPORT ON:

PUBLIC LAW IN INDIAN LEGAL SYSTEMSubmitted to: Submitted by:

Abhik majumdar Sourav chandan padhi

BBA.LLB(H) Roll no 51

1st

Semester


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CONTENTS

1- Introduction 3

2-Methodology 4

3-Development of Indian Legal system 5

4-Provisions of Constitution of India 7

(like fundamental rights)

5-Change in trends of Judicial decision 10

after Maneka Gandhis case

6- Conclusion 13

7-Bibliography 14


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Table of Cases

1 Cocks v Thanet District council2 case of Golaknath AIR 1967 SC 16433 Basheshar Nath v Commissioner of Income Tax, Delhi and Rajasthan and Another.1959 AIR(SC)

149

4 Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.5 Olga Tellis v. Bombay Municipal Corporation A.I.R. 1986 S.C. 180.6 Rudal Shah v. Stateof BiharA.I.R. 1983 S.C. 1086.7 Bhim Singh v. State of Jammu and Kashmir, 1985 (4) SCC 6778 M.C.Mehta v. Union of India A.I.R. 1987 S.C. 1086.9 Francis Coralie Mullin v. Administrator, Union Territory of DelhiA.I.R. 1981 S.C. 746.10 Joginder Kumar v. State of U.P., 1994 Cr. L. J. 1981


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Introduction

Public Law It is the law which deals with the relation between the state and the

person.According to Lord Bacon that it is a true and received division of law into ius publicum

and ius pri-vatum,the one being sinews of property ,and the other of government.

Private Law- It is the law which deals with the relation between person and person, where the

state has no intervention.

According to kelsen the traditional distinction between public and private law is that

private law deals with co-ordination and the relation between equals , where as public law is

the realm of political domination.In French Legal system private law and public law are

subjected to different rules and jurisdiction. But where as in Indian Legal system there is no

distinction between private and public law. However in recent years a distinction of a different

kind has emerged in our system .It is based not on differences between courts or rules of law

but rather on the different procedure to be used where the purpose of the case is to enforce

the public duties of state agency rather than to enforce the private rights of a citizen1.

The distinction has never been clearly marked. Until and unless the state itself

develops,public law is mere embryo . Even in the days of feudalism there is much confusion;for

no clear line can be drawn between private and public capacities of the king.In the days of

laissez-faire such a criterian wouldnot give too great a scope to public law; but today , with the

entry of the state into business world, we find that the sphere of private law is diminishing . In a

community where the ideal of state socialism was realized, public law would cover all the

instruments of production . The test of public and private interest is not sufficiently precise-thewhole doctrine of public policy depends on a concept of public interest , yet much of it

undoubtedly belongs to private law.

The divisions of public law are constitutional law and administrative law . Constitutional

law deals with the distribution of legal power and of the functions of the organs of the state.

Administrative law deals with rules which determine the organisation, powers, and duties of

administrative authorities.

1Distinction can be illustrated in the case of Cocks v Thanet District council


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Methodology

Objective -:

The main objective of my research is to study Public law in Indian legal system by viewing

historical development of Constitution law and administrative law in India.

For this purpose I have taken help from many sources.The method followed by me for

the research is completely doctrinal.I have taken help of both primary and secondary

resources.Some of primary sources include Indian constitution law.I have also referred to some

secondary sources as in articles and books.i have also collected my research materials from

many websites.

Since Public law is vast topic therefore I would deal with Indian judiciary and its judicial

activism for the development of Indian legal system.Then How the Constitution of India

prevents Public law being exploitated in India .Lastly I would like to illustrate How Indian legal

system or judiciary has been active in protecting the fundamental rights of the citizen of India.

Scope of Research -:

The research is basically looking at constitution law and not looking to other aspects of Public

law like the Administrative law or the Criminal law.

Research Question -:

How public Law has developed in Indian legal system, with special reference to constitutional

law ?


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Chapter -1 Development of Indian Legal system through judicial

activism

RQ-How Indian Legal system developed through judicial activism?

An impartial judiciary is a sine-qua-non for the smooth functioning of a political system

.It is the third organ of the government and is charged with deliverance of justice to the

aggrieved party.The judiciary does not have alternative in the present society.In modern

democratic political system is known as open, unbiased ,consistent ,stable & Predictable. The

judiciary operates in accordance with direction of rule of law i.e.equality of all citizens before

the law and a person being innocent unless committed by a court of law .such judicial system

believes in the fairness and openness of proceedings . Some times,to protect the interests of

the people , but there is seldom a deliberate attempt on the part of the state abrogate the

usual process and procedure of justice . In India ,also , the judiciary is taken largely , as

independent ,impartial, fair and real protector of the rights and liberties of the citizens.

In India , we have a unified structure of the judiciary despite the fact that our

Constitution is quasi-federal .Under our Constitution , we have a single integrated system of

courts for the union as well as , the states which administer both union and state laws.At the

apex,we have the Supreme court ,below the supreme court we have high courts of the different

states , under each high courts there is a hierarchy of other courts.Which are called sub-

ordinate courts, these are the courts which are sub-ordinate to high court.2

Judicial Activism

Judicial activism thus means thejudiciarys pronouncement in matters of general social

interest or welfare even though these may not be considered in its jurisdiction. According to

the traditional understanding of law ,for this the judiciary also may not necessarily follow the

established or prescribed procedure of litigation.Since the Constitution doesnot lay down any

principle guideline for constitutional interpretation to be followed by the courts, it provided a

vast scope for the judiciary to exercise judicial discretion . The judiciarys frequent

pronouncements on the parliaments power on the grounds of infringement of individuals

rights not taking into account the social interests and directive are called as judicial activism .In

the case of Golaknath3

of 1967 of supreme court declared that parliament has no power toamend the Constitution.This was a negative sense of the term. Another critism of judicial

system in India was its costliness and time consuming .The normal judicial process in India is so

costly that the poor just cannot enter the courts.It is so cumbersome also that it takes years to

2Indira Gandhi National Open University,Roleof jjudiciary,available at

http://www.egyankosh.ac.in/bitstream/123456789/31670/1/Unit10.pdf3

AIR 1967 SC 1643
http://www.egyankosh.ac.in/bitstream/123456789/31670/1/Unit10.pdfhttp://www.egyankosh.ac.in/bitstream/123456789/31670/1/Unit10.pdfhttp://www.egyankosh.ac.in/bitstream/123456789/31670/1/Unit10.pdf


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get justice.Both the Doctrine of superiority of fundamental rights over directive principles and

costly judicial system favours only the rich and deprives the poor from being taken care.So

there was pressure for reforms in the legal system. There was increasing pressure from social

action groups on behalf of the underprivileged and deprived section of society for the fulfilment

of their aspiration. The significant outcomes of these development were the system of publicInterest Litigation (PIL) Lok adalats & Legal Aid.

Public Interest Litigation (PIL)

There emerged a new substitute in judiciary orientation . The supreme court ,in early

1980s , started reforming its own procedural & jurisdictional rules.The purpose was that the

cases of the poor , who lacked both resources and awarenwss , could be brought to the courts

for redreesal.Public interest litigation means that where the poor who ,on account of their

poverty , social disability or lack of awareness , cannot approach the courts incase of the denial

of their rights, any member of the public or a social action group can approach the court onbehalf of them .Whatever the court fee may be it is relaxed.Any member of public can file a PIL

where there is public injury and breach of public duty. In 1990s the courts have gone a step

further .They themselves have started taking certain issues on the basis of newspaper reports

on their own. Then court itself initiates case pronounces a decision and directs the appropriate

authorities to act accordingly.4

Lok Adalat

The other area of development in judiciary system was the introduction of the

institution of Lok adalats . In bringing about this reform judiciary ,the executive and legislaturehave acted more in cooperation .The purpose of lok adalts is to make the process of dispute

settlement simple and cheap .The Lok adalat system ,is a method of settlement of disputes

which are not of very serious in nature are settled by mutual agreements between parties .The

help of arbitrators who have the necessary knowledge and competence to understand and

settle the disputes is made available.The arbitrators attempt to settle the disputes an the basis

of facts and document .Disputes like divorce , fixation and payment of maintenance, care of

children etc are settled by lok adalats. Lok adalats cannot pronounce judgement on criminal

cases.The settlements of disputes out of court, emphasis an reconciliation, avoidance of lawyer

and court fee.

4National Institute of Open Schooling, Judicial Activism,available at http://nos.org/317courseE/L-

16%20JUDICIAL%20ACTIVISM.pdf
http://nos.org/317courseE/L-16%20JUDICIAL%20ACTIVISM.pdfhttp://nos.org/317courseE/L-16%20JUDICIAL%20ACTIVISM.pdfhttp://nos.org/317courseE/L-16%20JUDICIAL%20ACTIVISM.pdfhttp://nos.org/317courseE/L-16%20JUDICIAL%20ACTIVISM.pdfhttp://nos.org/317courseE/L-16%20JUDICIAL%20ACTIVISM.pdf


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Legal aid movement

As a step towards making the legal system serve the poor and deprived,the judiciary

has also taken active interest in providing legal aid to the needy.Directive principle (Art 39A )

directs the state to provide for equal justice and legal aid .The Supreme court has given a

positive and broad interpretation .

1) Spread of legal awareness through programme of legal literacy2) Organisation of the poor and the exploited with a view to building up pressure for

enactment and implementation of egalitarian laws

3) Providing legal services to the poor and deprived people4) Fighting court battles either through social action litigation or through tradition forms to

obtain justice for the deprived .

5

5National Institute of Open Schooling, Judicial Activism,available at http://nos.org/317courseE/L-

16%20JUDICIAL%20ACTIVISM.pdf
http://nos.org/317courseE/L-16%20JUDICIAL%20ACTIVISM.pdfhttp://nos.org/317courseE/L-16%20JUDICIAL%20ACTIVISM.pdfhttp://nos.org/317courseE/L-16%20JUDICIAL%20ACTIVISM.pdfhttp://nos.org/317courseE/L-16%20JUDICIAL%20ACTIVISM.pdfhttp://nos.org/317courseE/L-16%20JUDICIAL%20ACTIVISM.pdf


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Chapter-2 Fundamental Rights are Integral Part of Indian Constitution

RQ-How fundamental rights affected the relation between state and citizen ?

"The Constitution is not an instrument for the government to restrain the people, it is an

instrument for the people to restrain the government -- lest it come to dominate our lives and

interests."

Patrick Henry

The primary function of constitutional law is to ascertain the political centre of gravity of

any given state. It announces in what portion of the whole is to be found the internal

sovereignty, supremepotestas, Staatsgewalt.In other words ,it defines the form of

government.The function of state goes farbeyond mere presentation of internal order andexternal independence .It is expected to promote social and economic ends of every kind , and

these are conveniently classed as executive function.It is also necessary to alter from time to

time the existing law and this is a distinct function of the legislative.Since it is the source of law

,its act can never be illegal.

The definition of sovereign power in a state necessarily leads to the consideration of its

constituent parts. The distinction between legislative ,executive and judiciary

functions.Constitution law deals with the functioning of different organs of the constitution

very minutely.It prescribes the order of succession to the throne; or in a Republic ,the mode of

electing a president.It provides for the continuity of executive power .It regulates the

composition of the council of state ,and of the upper and lower houses of the assembly.It

describe about the process of election to lower and upper house and the tenure of

representatives. It also mentions about the powers and privileges of the assembly as a

whole,and the machinery of law-making.6

Historical perspectives of constitution of India

The constitution of India, the precursor of the new Indian renaissance,become effective

on January 26th

1950.Before the advent of the constitution ,India was governed by the

government of India act 1935.India was part of the British Empire ;sovereignty of the British

crown prevailed over the country and it was in the exercise of this sovereignty that the british

Parliament had enacted the Act 1935. The only two major features of the Act were that the act

6T.E .HOLLAND,ELEMENTS OF JURISPRUDENCE 370(13th ed.2007)


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conferred only a very limited right of self government on the Indians. The executive authority

of province was vested in the governor appointed by the crown.

The Constitution of India being written constitutes the fundamental law of the land .

This has several significant implications.It is under this fundamental law that all laws are made

and executed ,all government authorities act and the validity of their functioning adjudged. A

legislative cannot make a law and a govt agency cannot act ,contrary to the constitution.the

Constitution thus conditions the whole governmental process in the country .The judiciary is

obligated to see that the provisions of constitution are not violated by any governmental

organ.This function of the judiciary entitles it to be called as guardian of the constitution ,it can

declare any act of the state invalid if its contradicts the constitution.

Fundamental rights

The Indian Constitution guarantees to the people certain basic human rights and

freedoms,such as inter alia,equal protection of laws, freedom of speech and expression ,

freedom of worship and religion, freedom of assembly and association, freedom to move freely

and to reside and settle anywhere in India ,freedom to follow any occupation ,trade or

business,freedom of person .A person can claim Fundamental rights against the state subject to

the state imposing some permissible restrictions in the interest of social control.These

restriction are also mentioned in the Constitution. These rights ,in substance , constitute

inhibitions on the legislative and executive organs of the state . Any law or the action of

executive can infringe the fundamental rights,the Constitution demarcates an area of individual

freedom and liberty where the state cannot interfere.The Constitution provides a machinery in

Arts 32 and 226 for the reinforcement of rights.7

They give emphasis to fundamental unity of the country by guaranteeing the access and

use of the same facilities, irrespective of caste, colour, creed and religion to all citizens.Ours is a

nascent democracy and situated as we are, socially, economically, educationally and politically,

it is the sacred duty of the Supreme Court to safeguard the fundamental rights which have been

for the first time enacted in Part III of our Constitution. The limits on those rights have been

enacted in the Constitution itself, e.g., in Arts. 19, 33 and 34. But unless and until we find the

limitations on such fundamental rights enacted in the very provisions of the Constitution, there

is no justification whatever for importing any notions from the United States of America or theauthority of cases decided by the Supreme Court there in order to whittle down the plenitude

of the fundamental rights enshrined in Part III of our Constitution.8

7M.P.JAIN,INDIAN CONSTITUTIONAL LAW 15 (5th ed 2009)

8Basheshar Nath v Commissioner of Income Tax, Delhi and Rajasthan and Another.1959 AIR(SC) 149


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The different Fundamental Rights the Constitution provides the Indian citizen are

1)Right to freedom

2)Right to equality

3)Right to freedom of religion

4)Right to freedom from exploitation

5)Cultural and educational rights

6)Right to Constitutional remedies

These Fundamental rights have been conceived in a liberal spirit and seek to draw a

reasonable balance between individual freedom and social control.These rights are similar to

those of Englands Bills of Rights,The United nations Bill of Rights and Frances declaration of

the rights of men.

Chapter -3 Case laws

RQ- How the trend of judicial decision have been changing after the Maneka Gandhi case?

By playing a vital role in the task of protecting fundamental rights, the Supreme Court

has made a positive contribution in this fertile field. The turning point came in 1978 in Maneka

Gandhis case9

when the Supreme Court held that any state action affecting life and liberty of

a person has to be right, just, fair and reasonable and not arbitrary fanciful and oppressive.

Thereafter, there appeared era of progressive judicial activism for protection of human rights.

In the postManekaperiod courts activism blossomed and flourished. A new trend was set in

Maneka Gandhis case. The Supreme Court, in its anxiety to protect human rights, has at times

undertaken the roles of both organs of the government, the legislature and the executive. The

Constitution does not confer such omnipotent power on the Judiciary.

In Olga Tellis v. Bombay Municipal Corporation10

, one Journalist of Bombay claimed relief

against demolition of hutments of pavement dwellers by the Municipal Corporation of Bombay.

His letter to the Supreme Court was treated as writ petition and the court granted interim relief

to pavement dwellers.

9Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.

10Olga Tellis v. Bombay Municipal Corporation A.I.R. 1986 S.C. 180.


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There is no express provision in the Constitution of India for grant of compensation for

violation of a fundamental right to life and personal liberty. But the judiciary has evolved a right

to compensation in cases of illegal deprivation of personal liberty. Rudal Shah v. Stateof Bihar11

is an instance of breakthrough in Human Rights Jurisprudence. The Court granted monetarycompensation of Rs.35,000 against the Bihar Government for keeping a person in illegal

detention for 14 years even after his acquittal. The Court departed from the traditional

approach, ignored the technicalities while granting compensation.

In another case12

, a member of the Legislative Assembly of Jammu and Kashmir was

arrested by the police mala fide and he was not produced before the Magistrate within the

required time. Holding that his fundamental rights under Article 21 and 22 (1) were violated,the Court observed that when there is mala fide arrest, the invasion of constitutional or legal

right is not washed away by his being set free and in appropriate cases the Court has

jurisdiction to compensate the victim by awarding suitable monetary compensation. The Court

awarded Rs.50,000 as monetary compensation by way of exemplary costs to the petitioner to

compensate him.

In M.C.Mehta v. Union of India13

, the Supreme Court held that the power of the Court

under Article 32(1) is not only injunctive in nature, that is, preventing the infringement of a

fundamental right, but it is also remedial in scope. The power of the Court to grant such

remedial relief may include the power to award compensation in appropriate cases. The

appropriate cases are those cases where the infringement of fundamental right is gross and

patent. It is considered unjust to ask the victim to go to the civil court for claiming

compensation as it may take many years for the victim to get relief in a civil court.

11

. Rudal Shah v. Stateof BiharA.I.R. 1983 S.C. 1086.12

Bhim Singh v. State of Jammu and Kashmir, 1985 (4) SCC 67713

M.C.Mehta v. Union of IndiaA.I.R. 1987 S.C. 1086.


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The Supreme Court, while elaborating the scope of the right guaranteed under

Article 21 observed in Francis Coralie Mullin v. Administrator, Union Territory of Delhi14

that

right to life cannot be restricted to mere animal existence. It means something more than

just physical survival. Right to life includes the right to live with human dignity and all that

goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing

and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely

moving about and mixing and co-mingling with fellow human beings. The Supreme Court

ruled that the detenu should be treated with more humanity and dignity than the

undertrial or a convict. He should be allowed greater freedom than allowed to an undertrial

or a convict as he stands on the higher rung of the ladder.

In the opinion of the Supreme Court no arrest can be made because it is lawful for

the police officer to do so. The existence of the power to arrest is one thing. The justification

for the exercise of it is quite another. No arrest can be made in a routine manner on a mere

allegation of commission of an offence made against a person. There must be some

reasonable justification in the opinion of the officer effecting the arrest that such arrest is

necessary and justified. Except in heinous offences, an arrest must be avoided.15

14 Francis Coralie Mullin v. Administrator, Union Territory of DelhiA.I.R. 1981 S.C. 746.

15Joginder Kumar v. State of U.P., 1994 Cr. L. J. 1981


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Conclusion

India incorporated a number of basic Human rights as guaranteed fundamental rights,these

rights are adopted by the partIII of our constitution.These rights go much beyond American Bills ofrights and Frances declaration of rights of men.These were drawn from the universal Human rights

declared by united nation,1948. The fundamental rights are very much required for the

development and welfare of citizen of India.If fundamental rights are infringed then they can be

challenged in the court and various writs are issued according to the infringement.As we saw the

role of judiciary in protection of Human rights is commendable.However ,in the quest for socio-

economic justice the judiciary has been overstepping the limits of judicial function and trespassing

the areas of executive and legislative.Its the need hour to have balance between Judicial activism

and judicial self-possession.Though Indian Constitution is rigid ,but has dynamism ,expansion and

flexibility .It does not impose any rule on the citizen of India ,it can be amended as per the time

demands .Hence public law in Indian legal system is an important aspect for development of the

nation .


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BIBLIOGRAPHY

BOOKS

M.P.JAIN,INDIAN CONSTITUTIONAL LAW (5th ed 2009)

T.E .HOLLAND,ELEMENTS OF JURISPRUDENCE 370(13th ed.2007)

WEBSITES

1) National Institute of Open Schooling, Judicial Activism,available at http://nos.org/317courseE/L-16%20JUDICIAL%20ACTIVISM.pdf

2) Indira Gandhi National Open University,Roleof jjudiciary,available athttp://www.egyankosh.ac.in/bitstream/123456789/31670/1/Unit10.pdf

3) http://www.library.du.ac.in4) http://www.archive.org5) http://ssrn.org
http://nos.org/317courseE/L-16%20JUDICIAL%20ACTIVISM.pdfhttp://nos.org/317courseE/L-16%20JUDICIAL%20ACTIVISM.pdfhttp://nos.org/317courseE/L-16%20JUDICIAL%20ACTIVISM.pdfhttp://www.egyankosh.ac.in/bitstream/123456789/31670/1/Unit10.pdfhttp://www.egyankosh.ac.in/bitstream/123456789/31670/1/Unit10.pdfhttp://ssrn.org/http://ssrn.org/http://ssrn.org/http://www.egyankosh.ac.in/bitstream/123456789/31670/1/Unit10.pdfhttp://nos.org/317courseE/L-16%20JUDICIAL%20ACTIVISM.pdfhttp://nos.org/317courseE/L-16%20JUDICIAL%20ACTIVISM.pdf

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