Constitutional value of administrative law

Jay Shree Ram!

Constitutional value of administrative law: -

Thus the growth of administrative law is to be attributed to a change of philosophy as to the role and function of state. The shifting of gears from laissez faire state to social welfare state has resulted in change of role of the state. This trend may be illustrated very forcefully by reference to the position in India. Before 1947, India was a police state. The ruling foreign power was primarily interested in strengthening its own domination; the administrative machinery was used mainly with the object in view and the civil service came to be designated as the “steel frame”. The state did not concern itself much with the welfare of the people. But all this changed with the advent of independence with the philosophy in the Indian constitution the preamble to the constitution enunciates the great objectives and the socioeconomic goals for the achievement of which the Indian constitution has been conceived and drafted in the mid-20th century an era when the concept of social welfare state was predominant. It is thus pervaded with the modern outlook regarding the objectives and functions of the state. It embodies a distinct philosophy which regards the state as on organ to secure good and welfare of the people this concept of state is further strengthened by the Directive Principles of state policy which set out the economic, social and political goals of Indian constitutional system. These directives confer certain non-justiceable rights on the people, and place the government under an obligation to achieve and maximize social welfare and basic social values of life education, employment, health etc. In consonance with the modern beliefs of man, the Indian constitution sets up machinery to achieve the goal of economic democracy along with political democracy, for the latter would be meaningless without former.

Therefore, the attainment of socio-economic justice being a conscious goal of state policy, there is a vast and inevitable increase in the frequency with which ordinary citizens come into relationship of direct encounter with state power-holder. The Administrative law is an important weapon for bringing about harmony between power and justice. The basic law of the land i.e. the constitution governs the administrators.

Provisions of COI for administrative law: -

Administrative law essentially deals with location of power and the limitations thereupon. Since both of these aspects are governed by the constitution, we shall survey the provisions of the constitution, which act as sources of limitations upon the power of the state. This brief outline of the Indian constitution will serve the purpose of providing a proper perspective for the study of administrative law.

India’s Constitution is a very lengthy, elaborate and detailed document. It consists of 470 articles in 25 parts, 12 schedules and 5 appendices. It is probably the longest of the organic law now extant in the world. Several reasons have contributed to the prolixity of the Indian Constitution.

Firstly, the Constitution deals with the organization and structure not only of the central Government but also of the states.

Secondly, in a federal constitution, Center-State relationship is a matter of crucial importance. While other federal constitutions have only skeletal provisions on this matter the Indian Constitution has detailed norms.

Thirdly, the Constitution has reduced to writing many unwritten conventions of the British Constitution as for example, the principle of collective responsibility of the Ministers, parliamentary procedure etc.

Fourthly, there exist various communities and groups in India. To remove mutual distrust among them, it was felt necessary to include in the Constitution detailed provisions on Fundamental Rights, safeguards to minorities, Scheduled tribes scheduled castes and backward classes.

Fifthly, to promote the social welfare concept, on which the state of India is to be based, the constitution includes Directive Principles of State Policy.

Lastly, the Constitution contains not only the fundamental principles of governance but also many administrative details, such as the provisions regarding citizenship, official languages, government services, electoral machinery etc.

In other constitutions, these are usually left to be regulated by the ordinary law of the land. The framers of the Indian Constitution however felt that unless these provisions were contained in the Constitution, an infant democracy might find itself in difficulties, and the smooth and efficient working of the Constitution and the democratic process in the country might be jeopardized. The form of administration has a close relation with the form of the Constitution and the former must be appropriate to the latter. It is quite possible to pervert the constitutional mechanism, without changing its form, by merely changing the form of the administration and making it inconsistent with, and opposed to, the spirit of the constitution. Since India was emerging as an independent country after a long spell of foreign rule, the country lacked democratic values. The constitution-makers therefore thought it prudent not to take unnecessary risks, and to incorporate in the constitution itself in the form of administration as well, instead of leaving it to the legislature, so that the whole mechanism may become viable.

Today in India, the Administrative process has grown so much that it will not be out of place to say that today we are not governed but administered. It may be pointed out that the constitutional law deals with fundamentals while administrative with details. The learned author, Sh. I.P. Messey, has rightly pointed out, whatever may be the arguments and counter arguments, the fact remains that the administrative law is recognized as separate, independent branch of legal discipline,. Though at times the disciplines of constitutional law and administrative law may over lap. Further clarifying the point he said the correct position seems to be that if one draws two circles of administrative law and constitutional law at a certain place they may over lap and this area may termed as watershed in administrative law.

In India, in the Watershed one can include the whole control mechanism provided in the constitution for the control of the administrative authorities that is article 32, 226,136,300 and 311.

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Training package on administrative law

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Laissez faire

 Jay Shree Ram!

Laissez faire: -

Administrative Law is that branch of the law, which is concerned with the composition of powers, duties, rights and liabilities of the various organs of the Government. The rapid growth of administrative Law in modern times is the direct result of the growth of administrative powers. The ruling gospel of the 19th century was Laissez faire which manifested itself in the theories of individualism, individual enterprise and self help. The philosophy envisages minimum government control, maximum free enterprise and contractual freedom. The state was characterized as the law and order state and its role was conceived to be negative as its internal extended primarily to defending the country from external aggression, maintaining law and order within the country dispensing justice to its subjects and collecting a few taxes to finance these activities. It was era of free enterprise. The management of social and economic life was not regarded as government responsibility. But laissez faire doctrine resulted in human misery. It came to be realized that the bargaining position of every person was not equal and uncontrolled contractual freedom led to the exploitation of weaker sections by the stronger e.g. of the labour by the management in industries. On the one hand, slums, unhealthy and dangerous conditions of work, child labour wide spread poverty and exploitation of masses, but on the other hand, concentration of wealth in a few hands, became the order of the day. It came to be recognized that the state should take active interest in ameliorating the conditions of poor. This approach gave rise to the favoured state intervention in and social control and regulation of individual enterprise. The state started to act in the interests of social justice; it assumed a “ positive” role. In course of time, out of dogma of collectivism emerged the concept of “ Social Welfare State” which lays emphasis on the role of state as a vehicle of socio-economic regeneration and welfare of the people.

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Introduction and History of Administrative Law in Bharat

 Jay Shree Ram!

Introductory :-

Administrative law is the bye-product of the

ð  Growing socio-economic functions of the State and

ð  The increased powers of the government.

In the developed society of India the job of administrative authorities as well as the relationship between the administrative authorities and the people has become very complex. In order to regulate these complex jobs and relations some law is necessary to bring regularity, certainty and to check at the same time the misuse of powers vested in the administration.

History :-

In the ancient society the functions of the state were very few the prominent among them being protection from foreign invasion, levying of Taxes and maintenance of internal peace & order. It does not mean, however that there was no administrative law before 20th century. In fact administration itself is concomitant of organized Administration. In India itself, administrative law can be traced to the well-organized administration under the Mauryas and Guptas, several centuries before the Christ, following through the administrative, system of Mughals to the administration under the East India Company, the precursor of the modern administrative system. But in the modern society, the functions of the state are manifold, In fact, the modern state is regarded as the custodian of social welfare and consequently, there is not a single field of activity which is free from direct or indirect interference by the state. Along with duties, and powers the state has to shoulder new responsibilities. The growth in the range of responsibilities of the state thus ushered in an administrative age and an era of Administrative law.

The development of Administrative law is an inevitable necessity of the modern times; a study of administrative law acquaints us with those rules according to which the administration is to be carried on. Administrative Law has been characterized as the most outstanding legal development of the 20th-century.

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Ombudsman

 

Ombudsman

Meaning and Role

An indigenous Swedish, Danish and Norwegian term, Ombudsman is etymologically rooted in the word umboosmaor, essentially meaning ‘representative’. Whether appointed by a legislature, the executive, or an organization, the typical duties of an ombudsman are to investigate complaints and attempt to resolve them, usually through recommendations (binding or not) or mediation. Ombudsmen sometimes also aim to identify systemic issues leading to poor service or breaches of people's rights. At the national level, most ombudsmen have a wide mandate to deal with the entire public sector, and sometimes also elements of the private sector (for example, contracted service providers). Further redress depends on the laws of the country concerned, but this typically involves financial compensation.

The Government of India has designated several ombudsmen (sometimes called Chief Vigilance Officer (CVO)) for the redress of grievances and complaints from individuals in the banking, insurance and other sectors being serviced by both private and public bodies and corporations. For example, the CVC (Central Vigilance Commission) was set up on the recommendation of the Santhanam Committee (1962-64). CVC has been conceived to be the apex vigilance institution, free of control from any executive authority, monitoring all vigilance activity under the Central Government and advising various authorities in Central Government organizations in planning, executing, reviewing and reforming their vigilance work.

The major advantage of an ombudsman is that he or she examines complaints from outside the offending state institution, thus avoiding the conflicts of interest inherent in self-policing. However, the ombudsman system relies heavily on the selection of an appropriate individual for the office, and on the cooperation of at least some effective official from within the apparatus of the state.

 

Reference:

1) CBSE Class XII Legal Studies

Lok Adalat

 

Lok Adalat

The concept of Lok Adalat (People’s Court) is an innovative Indian contribution to the global legal jurisprudence. The institution of Lok Adalat in India, as the very name suggests, means, People's Court. "Lok" stands for "people" and the term "Adalat" means court. India has a long tradition and history of such methods being practiced in the society at grass roots level.

In ancient times the disputes were referred to ‘panchayats’ which were established at village level. Panchayats used to resolve the dispute through arbitration. It has proved to be a very effective alternative to litigation. This very concept of settlement of dispute through mediation, negotiation or through arbitral process known as decision of "Nyaya-Panchayat" is conceptualized and institutionalized in the philosophy of Lok Adalat. It involves people who are directly or indirectly affected by dispute resolution. The evolution of movement called Lok Adalat was a part of the strategy to relieve heavy burden on the Courts with pending cases and to give relief to the litigants who were in a queue to get justice.

The modern institution of Lok Adalat is presided over by a sitting or retired judicial officer such as the chairman, with usually two other members- a lawyer and a social worker. A Lok Adalat has jurisdiction to settle any matter pending before any court, as well as matters at pre-litigative stage, i.e. disputes which have not yet been formally instituted in any Court of Law. Such matters may be in the nature of civil or non-compoundable criminal disputes. The salient features of Lok Adalat are participation, accommodation, fairness, voluntariness, neighbourliness, transparency, efficiency and lack of animosity.

The benefits of Lok Adalat include:

1) There is no court fee and even if the case is already filed in the regular court, the fee paid will be refunded if the dispute is settled at the Lok Adalat.

2) There is no strict application of the procedural laws and the disputing parties can directly interact with the judges.

3) The decision of Lok Adalat is binding on the parties and its order is capable of execution through legal process.

History of Lok Adalat:

The first Lok Adalat was held on March, 14, 1982 at Junagarh in Gujarat. Lok Adalats have been very successful in settlement of claims including- motor accident claims, matrimonial/family disputes, labour disputes, disputes relating to public service such as telephone, electricity, bank recovery cases etc.

An overview of laws on Lok Adalat

Pursuant to Article 39-A of the Constitution of India, the Parliament has enacted The Legal Services Authorities Act, 1987. The Act provides for various provisions of dispute settlement through Lok Adalat. The Act constitutes legal services authorities to provide free legal aid and competent legal services to the weaker sections of the society. In 2002, the Act was amended to establish permanent Lok Adalats for public utility services.

Furthermore, the National Legal Services Authority (NALSA), a statutory body constituted under the National Legal Services Authorities Act, 1987 is responsible for laying down policies and principles for making legal services under the Act and frame the most effective and economical schemes for legal services. NALSA is engaged in providing legal services, legal aid and speedy justice through Lok Adalats.

It also disburses funds and grants for implementing legal aid schemes, literacy camps and programs. Similarly, the State Legal Services Authorities and District Legal Services Authorities have been constituted in every state capital and districts respectively.

 

Reference:

1) CBSE Class XII Legal Studies

Laws on Mediation and Conciliation

Laws on Mediation and Conciliation

Both Mediation and Conciliation are governed by Section 89, a provision inserted by the 2002 amendment of the Civil Procedure Code, 1908 (for short, ‘CPC’). The Code is the primary legislation governing the method, procedure and legal practice of civil disputes. Section 89 of the Code only deals with court referred mediation. Prelitigation mediation is not yet governed by any law in India.

Similarly, conciliation only finds a reference in Section 89, Civil Procedure Code, 1908. The process and methods within conciliation have been described in the Arbitration & Conciliation Act, 1996. Further, the Industrial Disputes Act, 1947 also provides for conciliation as a viable means of resolving disputes in the labour sector.

 

 

Reference:

1) CBSE Class XII Legal Studies

Conciliation

 

Conciliation

Meaning

Conciliation is a process similar to mediation as parties out of their own free will appoint a neutral third party to resolve their disputes. The key difference between mediation and conciliation lies in the role of the neutral third party. A mediator merely performs a facilitative role and provides platform for the parties to reach a mutually agreeable solution. The role of a conciliator goes beyond that of a mediator. [1]

A conciliator may be interventionist in the sense that he/she may suggest potential solutions to the parties, in-order to resolve their claims and disputes. [1]

The Arbitration and Conciliation Act 1996 governs the process of conciliation.

 

Reference:

1) CBSE Class XII Legal Studies