Malice in law is different from malice in fact

Mens rea not necessary to prove malice of law:

Rule of law:

The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously.

[Source A.K. Kaipak vs. Union of India, A. 1. R. 1970 SC 150]
Malice in fact and in law.

Continue reading “Malice in law is different from malice in fact”

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What is a colourable legislation?

Doctrine of colourable legislation

The doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. Whether a statute is constitutional or not is thus always a question of power. Continue reading “What is a colourable legislation?”

Arbitrary and discriminatory lagislation

Violation of equality clause in the Constitution.

Validity of economic legislation leaving a section of people.

Fourteenth Amendment of Constitution of USA and view of Supreme Court of USA:

When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations. … Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude. Legislatures may implement their programme step-by-step … in such economic areas, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations … In short, the judiciary may not sit as a super-legislature to judge the wisdom or undesirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines …, in the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment.

[Source: City of New Orleans v. Dukes 427 U.S. 297 (1976)]

The courts should not adopt a doctrinaire approach which might well choke all beneficial legislation and that legislation which is based on a rational classification is permissible. A law applying to a class is constitutional if there is sufficient basis or reason for it. In other words, a statutory discrimination cannot be set aside as the denial of equal protection of the laws if any state of facts may reasonably be conceived to justify it. Continue reading “Arbitrary and discriminatory lagislation”

Legal doctrine of Occupied Field

Doctrine of Occupied Field is attracted in a variety of ways. For example if a special law covers a subject, general law stands automatically excluded because that field of law is already occupied.

Claim of Gratuity made  under Section 33-C(2) Industrial Disputes Act instead of Payment of Gratuity Act — Validity.

It was urged that the Payment of Gratuity Act is a self-contained code incorporating all the essential provisions relating to payment of gratuity which can be claimed under that Act, and its provisions impliedly exclude recourse to any other statute for that purpose.

Supreme Court accepted this contention in following words:

“A careful perusal of the relevant provisions of the Payment of Gratuity Act shows that Parliament has enacted a closely knit scheme providing for payment of gratuity. A controlling authority is appointed by the appropriate Government under section 3 and Parliament has made him responsible for the administration of the entire Act. In what event gratuity will become payable and how it will be quantified are detailed in section 4. Section 7(1) entitled a person eligible for payment of gratuity to apply in that behalf to the employer. Under section 72, the employer is obliged,as soon as gratuity becomes payable and whether an application has or has not been made for payment gratuity, to determine the amount of gratuity and inform the person to whom the gratuity is payable specifying the amount of gratuity so determined. He is obliged, by virtue of the same provision, to inform the controlling authority also, thus ensuring that the controlling authority is seized at all times of information in regard to gratuity as it becomes payable. If a dispute is raised in regard to the amount of gratuity payable or as to the admissibility of any claim to gratuity, or as to the person entitled to receive the gratuity, section 7(4) a requires the employer to deposit with the controlling authority such amount as he admits to be payable by him as gratuity. The controlling authority is empowered. under section 7(4)(b), to enter upon adjudication of the dispute, and after due inquiry, and after giving the parties to the dispute a reasonable opportunity of being heard, he is required to determine the amount of gratuity payable.

Continue reading “Legal doctrine of Occupied Field”

Sanction for prosecution of Govt Servant in India

Sanction NOT required to Prosecute Police / Govt. or Public Servants for Criminal Offences:

(See Code of Criminal Procedure, 1973; Section 197)

The principles for granting sanction for prosecution of Government Servants are summarized hereunder :

I. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.

II. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.

III. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under section 197 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.

IV. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.

Continue reading “Sanction for prosecution of Govt Servant in India”

Sexual harassment in Supreme Court of India

First disciplinary order of Supreme Court in sexual harassment case.

Sexual harassment and gender sensitivity at work places is an issue which requires serious attention as this is seriously related to making work places safe for women however personal over sensitivity of an individual about these matters shall always be a matter of concern. India has already ratified United Nation’s Convention on the Elimination of all Forms of Discrimination against Women, on the 25th June, 1993.

The Supreme Court of India in their judgement in August, 1997, in the case of Vishaka v. State of Rajasthan, recognizing the International Conventions and Norms, interpreted gender equality of women, in relation to work and held that sexual harassment of women at the workplace, is against their dignity, and violative of Article 14, 15 (1) and 21 of the Constitution of India. It also held that it is the violation of the fundamental rights under Article 19 (1) (g) ‘to practice any profession or to carry out any occupation, trade or business.’ Therefore it laid down a binding guide lines in this regard.

Guidelines to prevent sexual harassment issued in Vishakha Case:

1. Duty of the Employer or other responsible persons in work places and other institutions: It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
2. Definition: For this purpose,sexual harassment includes such unwelcome sexually determined behaviour (Whether directly or by implication) as:

a) Physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non – verbal conduct of sexual
nature.

Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or
when it creates a hostile work environment. Adverse consequences might by visited if the victim does not consent to the conduct in question or raises any objection thereto.

3. Preventive Step: All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:

(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. Criminal Proceedings: Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

5. Disciplinary Action: Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

6. Complaint Mechanism: Whether or not such conduct constitutions an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

7. Complaints Committee: The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be heated by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them. The employers and person in charge will also on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

8. Workers’ Initiative:  Employees should be allowed to raise issues sexual harassment at workers’ meeting and in other appropriate forum and it should be affirmatively discussed in Employer – Employee Meetings.

9. Awareness: Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines ( and appropriate legislation when enacted on the subject ) in a suitable manner.

10. Third Party Harassment: Where sexual harassment occurs as a result of an act or omission by any third
party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
11. The Central / State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

Again in AEPC v. AK Chopra, Supreme Court decided:

This was the question formulated by Supreme Court:

Does an action of the superior against a female employee which is against moral sanctions and does not withstand test of decency and modesty not amount to sexual harassment ? Is physical contact with the female employee an essential ingredient of such a charge ? Does the allegation that the superior ‘tried to molest’ a female employee at the place of work, not constitute an act unbecoming of good conduct and behaviour expected from the superior ?

And it answered the question in these words:

Any action or gesture, whether directly or by implication, aims at or has the tendency to outrage the modesty of a female employee, must fall under the general concept of the definition of sexual harassment.

Though the Supreme Court in it’s previous decision in the case of Vishakha v. State of Rajasthan had given directions (in the year 1997 !) for formation of Committees at work places to look into the grievances of sexual harassment, it took no step to form such committee in it’s own establishment. With a view to redress such grivances in the premises of Supreme Court of India, itself, on 21st September 2013 SCI promulgated:

THE GENDER SENSITISATION & SEXUAL HARASSMENT OF WOMEN AT THE SUPREME COURT OF INDIA(PREVENTION, PROHIBITION AND REDRESSAL) REGULATIONS, 2013.

The complaint about sexual harassment:

A complaint of indecent behaviour bordering on sexual harassment was made against a practicing lawyer. The Committee under aforesaid Regulations of 2013 inquired into the matter and recommended that the said Advocate Mr. C.S. Nagesh, be barred from the premises of Supreme Court for a period of one year.

The Chief Justice of India, however did not accept the recommendation in entirety and barred the concerned advocate/lawyer for a period of six months only.

The relevant order dated 15th March, 2014, stated to have been passed under Regulation 15(c) can be reached here.

Comment: This is a new branch of discipline being developed. There are many new questions being raised by this order:

  1. In the absence of any law, does the order passed by Chief Justice of India, on administrative side, has sanction of law, especially when regulations do not provide for any punishment?
  2. Does this order serve a precedent to rusticate a person or to transfer out a person for minimum 6 months?
  3. The order of rustication being passed by Chief Justice of India himself, what are the judicial remedies against it?
  4. Would any court in the country, judicially review order passed by Chief Justice of India?

Public Auction: Definition.

Public auction means public sale:

Earliest definition of public auction:

This appears to be earliest case (Privy Council) defining the definition of public Auction.

“There is no definition in the Act of the words “public auction” and their Lordships are of opinion that there can be no doubt that they must bear the meaning which is ordinarily given to them in the English language. The words mean a public sale at which each bidder offers an increase upon the price offered by the preceding bidder, the article put up being sold to the highest bidder. This involves the auction being held in public, all members of the public having a right to attend, and a valuable element being the competition between the persons who are openly bidding for the subject matter of the sale. This is of importance not only to the Railway Company, but also to the owner of the goods, the competition being calculated to produce the highest price.”

[Source: Secy. of State v. Sunderji, AIR 1938 PC 12.]
The public auction means that it is being held in public, all members of the public having a right to attend, and a valuable element being the competition between the persons who are openly bidding for the subject matter of the sale.

[Source: Vishal Builders (P) Ltd. Vs. Delhi Development Authority ILR (1977) 1 Delhi 724.]

E-auction is also a public Auction:

 

By the process of e-auction, none of the intending bidder is forbidden to participate in the process of sale. Instead of a physical auction at the spot, it is virtual auction in the electronic format. The advantage of e- auction is that every bid is recorded within a specified slot and is free from the errors, which may be committed by the court auctioneer. Therefore, we find that e-auction is another form of the public auction.
[Source: Dr. Mandeep Sethi vs Union Bank Of India (P&H)]

 

Judicial Review of Discretion

Judicial review of administrative discretion:

Principles of judicial review:

Every administrative decision by Executive is subject to Judicial Review. There is no such thing as absolute discretion. However Judicial Review is not an appeal. The earliest reported case in this regard is Associated Provincial Pictures (also called Wednesbury’s case) which laid down the law relating to scope of Judicial Review. It is more concerned with the decision making process rather than the merits of decision. Following extract clinches the issue:

 It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation [1926] Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another………

The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.(By Lord Greene)

[Source: Associated Provincial Pictures ]

Judicial review of judgement of Tribunal; Scope of.

Finality assigned to the decision of Tribunal:

Judicial review of error of law committed by a tribunal:

Visitor of a university acting as a judge has exclusive jurisdiction and that his decision is final in all matters within his jurisdiction. The common law courts have through three centuries consistently resisted all attempts to appeal decisions of the visitor. The courts have however been prepared to confine the visitor to his proper role as a judge of the internal
affairs of the foundation by the use of the writs of prohibition and mandamus.

Can Courts judicially review such decision?

per Lord Browne (Lord Kieth concurring) (Majority decision): The court has no jurisdiction to review the decision of a visitor made within his jurisdiction.
per Lord Grriffith: It is in my opinion important to keep the purpose of judicial review clearly in mind. The purpose is to ensure that those bodies that are susceptible to judicial review have carried out their public duties in the way it was intended they should. In the case of bodies other than courts, in so far as they are required to apply the law they are required to apply the law correctly. If they apply the law incorrectly they have not performed their duty
correctly and judicial review is available to correct their error of law so that they may make their decision upon a proper understanding of the law.

In the case of inferior courts, that is courts, of a lower status than the High  Court, such as the Justices of the Peace, it was recognised that their learning and understanding of the law might sometimes be imperfect and require correction by the High Court and so the rule evolved that certiorari was available to correct an error of law of an inferior court. At first it was confined to an error on the face of the record but it is now available to correct any error of law made by an inferior court. But despite this general rule Parliament can if it wishes confine a decision on a question of law to a particular inferior court and provide that the decision shall be final so that it is not to be challenged either by appeal or by judicial review.

 per Lord Slynn (Lord Mustill, concurring) (Minority view): With deference to the contrary view of the majority of your Lordships, in my opinion if certiorari can go to a particular tribunal it is available on all the grounds which have been judicially recognised. I can see no reasons in principle for limiting the availability of certiorari to a patent excess of power (as where
a Visitor has decided something which was not within his remit) and excluding review on other grounds recognised by the law. If it is accepted, as I believe it should be accepted, that certiorari goes not only for such an excess or abuse of power but also for a breach of the rules of natural justice there is even less reason in principle for excluding other established grounds. If therefore certiorari is generally available for error of law not involving abuse of power (as on the basis of Lord Diplock’s speeches I consider that it is so available) then it should be available also in respect of a decision of a Visitor. 
I am not persuaded that the jurisdiction of the Visitor involves such exceptional considerations that this principle should be departed from and that some grounds be accepted and others held not to be available for the purposes of judicial review.
[Source: Regina v. Lord President of the Privy Council  ex. p. ]

Abuse of power is not mere error of law.

Error of law is not abuse of power:

Abuse of power by subordinate Tribunal:

What is abuse of power? Inability to apply law properly? Exercise of power in excess of what was intended? Exercise of power for a collateral purpose? These question however have to wait till decided in appropriate case. Presently the view of Lord Griffiths is that mere error of law is not abuse of power. In his own words:

The common law has ever since the decision in Philips v.Bury (1694) Holt K.B. 715 recognised that the visitor acting as a judge has exclusive jurisdiction and that his decision is final in all matters within his jurisdiction. The common law courts have through three centuries consistently resisted all attempts to appeal decisions of the visitor. The courts have however been prepared to confine the visitor to his proper role as a judge of the internal affairs of the foundation by the use of the writs of prohibition and mandamus. When I said in Thomas v. University of Bradford [1987] A.C. 795:

“I have myself no doubt in the light of the modern development of administrative law, the High Court would have power, upon an application for judicial review, to quash a decision of the visitor which amounted to an abuse of his powers”

I used the words “an abuse of his powers” advisedly. I do not regard a judge who makes what an Appellate Court later regards as a mistake of law as abusing his powers. In such a case the judge is not abusing his powers; he is exercising them to the best of his ability albeit some other court thinks he was mistaken. I used the phrase “abuse of his powers” to connote some form of misbehaviour that was wholly incompatible with the judicial role that the judge was expected to perform. I did not intend it to include a mere error of law.
[Source: Regina v. Lord President of the Privy Council ex. p. Page (per Griffiths J.)]