Constitutional Law

Notification of an Act in the Official Gazette- A Prerequisite

Chandni Joshi ,

Notification of an Act in the Official Gazette- A Prerequisite

 

Introduction

 

Notification in the legal terminology refers to a publication in the official gazette, the legal newspaper of a country that publishes the text of new laws, decrees, regulations, treaties, legal notices and court decisions. Most of the acts contain a clause that necessitates its notification in the official gazette by an organ of the government without which, the act cannot come into force. The following article aims to scrutinise the clause, its constitutional validity and the consequences and possible course of action in the event of the failure to notify such an act.

It also looks at section 243 of the IBC, a classic instance of the same and analyses its possible aftermath.

Government Work Suspension on December 26 | Official Gazette

 

Section 5 of the General Clauses Act 

 

Section 5 of the General Clauses Act states that 

  1. Where a central act is not expressed to come into operation of a particular day, it shall come into force on the day it receives the assent of the 
    1. Governor General in the case of an act made before the commencement of the constitution. 
    2. President in the case of an act before the act of the parliament.
  2. Unless contrary expressed, an act would come into operation immediately on the expiration of the day preceding its commencement.

Section 5 is only applicable when the act, in any of its provisions, does not expressly provide for a date of commencement. The words ‘unless the contrary is expressed’ in section 5(3) simply mean that only when such an express provision is not stated will the act come into force on the date it received presidential assent. In such cases, the act is said to be enacted on the night immediately before it receives the assent of the president.

 

Constitutional Validity of Delegating Legislative Functions

 

The practice of upholding the constitutional validity of provisions delegating legislative functions dates back to Privy Council Decisions. Post independence, in the case of Re Delhi Laws Act (1951), The judges unanimously accepted these decisions, permitting conditional legislation by the legislature to an outside agency.

As held by a ratio of 3:2 in the case of AK Roy, provisions necessitating the publication of such an act in the official gazette is neither contradictory to, nor ultra vires to the constitution of India. Such provisions merely regulate  the manner in which the act or provisions are brought into force. There is no harm in the constitutional body itself appointing a specific date on which the act comes into force. The law making agency does not lose its power by empowering or conferring upon another organ of the State such as the executive to bring a legislation into force. 

 

Whether publication in the gazette is mandatory?

 

Acts containing a provision empowering the state government to appoint a date to notify the same in the official gazette cannot come into force unless the same is complied with. Further, as long as the acts do not contemplate different dates of its commencement, the obvious intention of the legislature is to let the State Government appoint the date of the same. This principle is not unique to India; It can be seen in the legal practices of England as well as France where ‘promulgation’ or reasonably and publicly enacting an act to make it known to the public is an important aspect of enforcing an act. Similarly, it was also held in Atar Singh v. State of Allahabad that though the Arms Act was passed by the parliament and received the assent of the president, it did not become a law until its notification was issued and published in the official gazette. This stance was reiterated while deciding the date of enforcement of the Arbitration and Conciliation Act, Karnataka Industrial Areas Development Act and Nagaland Work-Charged and Casual Employees Regulation Act, 2001. 

Therefore, publication of such notifications in the official gazette is mandatory and such acts come into force only from such date of notification in the gazette.

Whether a writ of Mandamus directing the government to notify a statute can be issued?

It was held in the case of A.K. Roy that such provisions leave the question of the time within which such provisions should be brought into force to the unfettered judgement of the body entrusted to do so and hence, it was not for the court to cue the Central Government to act in a particular manner upon a matter that was left entirely to its discretion. An order of mandamus on the ground that the government has failed to act would create an anomaly in the sense that it would be equally permissible that the time was not yet ripe for notifying such an act. Unless the parliament lays down an objective standard or test directing the central government to act in a prescribed time limit, it is impossible for the judiciary to examine the cause of inaction.

However, in the case of Aeltemesh Rein v. Union of India, it was held that while it may not be open to the court to issue a writ of mandamus compelling the central government to bring a statutory provision into force, issuing a mandamus directing the government to consider whether the time for bringing an act into force is not hinged upon. Considering the fact that more than two decades had passed since the act had received president’s assent, a writ of mandamus was issued to the Central Government to consider within a period of six months whether the act should be brought into force or not. 

Be that as it may, if the executive intent behind delaying the notification of such an act is based on bonafide considerations and delays, neither a mandamus to bring the act into force nor a mandamus to prescribe a time limit for the same can be issued. 

Notification of Insolvency and Bankruptcy Code

Section 243 of the Insolvency and Bankruptcy code in its clause 1 states that the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920 are hereby repealed. Its sub-section 2 begins with a non-obstante clause, stating that all proceedings pending under the two acts immediately before the commencement of the shall continue to be governed by those acts. Similarly, any order, rule, notification, regulation, appointment, conveyance, mortgage, deed, document or agreement made, fee directed, resolution passed, direction given, proceeding taken, instrument executed or issued, or thing done under or in pursuance of any repealed enactment shall, if in force at the commencement of this Code, continue to be in force, and shall have effect as if the aforementioned Acts have not been repealed.

However, this particular section of the IBC has not been notified in the official gazette yet; therefore, the Ministry of Finance advised stakeholders to pursue their insolvency cases under existing laws rather than approaching debt-recovery tribunals. Sub section 2 of the act makes it very clear that pending proceedings under the acts repealed will be continued in accordance with the same provision. The non obstante clause in section 243 would mean that once notified, this code would override these acts. This might be one reason why the section has not been notified yet. 

The concluding and prevailing position of law therefore, is that if there is any initiation of proceedings under the IBC, it would effectively put the pending proceedings as well under the ambit of IBC. These proceedings will then not be governed under the Presidency Towns Insolvency Act, 1909 and Provincial Insolvency Act 1920.

Conclusion

From a thorough reading of the cases listed above, it can be concluded that clauses necessitating the publication of the notification in the official gazette are constitutionally valid and need to be complied with. Further, as long as the executive government does not unreasonably delay the publication of the same without any well-founded reasons, writ of mandamus cannot be issued. However, if the delay is unreasonable, the court can issue a writ of mandamus directing the executive organ to decide a time limit within which such an act must be notified.

Written by – Jhanvi Shah 

Edited By – Aaditya Bhatt Advocate, Chandni Joshi Advocate 

LAW OF DETENTION IN INDIA

Chandni Joshi , , , , , , , , ,

LAW OF DETENTION IN INDIA

Detention

Detention is defined as the act of reserving a person or property and, ‘illegal detention’ is the unsubstantiated imprisonment or unlawful deprivation of liberty of an individual by arresting for an illegitimate cause or suspicion, along with continuous restraint on one’s personal liberty by detaining such individual in custody.

A Police officer can detain an individual, if he has reasonable doubt or suspicion that a crime has been or will be committed, or if he reasonably believes that an individual may have information regarding the same, the Police officer may then have the liberty of detaining the individual for a short span of time, in order to investigate into the matter. If an individual is ever detained, the authorities are allowed to

  • frisk the person for any weapons,
  • seek information regarding the crime that is believed to occur.

If police officers have probable cause to believe a specific person has committed a crime, he can arrest that person. At that point, he can conduct a complete search for the person for weapons, evidence, and contraband as well as their vehicle if he is or has been near it recently. He can hold that person in jail for 24 hours or until he gets a warrant issued for the charges. If a person is unlawfully detained by the police, the Constitution allows redressal by the  filing of a habeas corpus petition under Article 32 or 226. Traditionally, its sole purpose is to have any person under arrest brought to court. Now, if the person has been unlawfully detained, the court can order his release.

Safeguards under Constitution of India

Article 22 of Indian Constitution broadly deals with the rights of a person who has been arrested or detained. The first two clauses deal with the rights of a person who has been arrested for a crime he has already committed. Other clauses are related to the rights and the procedure for the arrest and detention of persons under preventive detention. Article 22 makes the minimum procedural requirements which must be included in any law enacted by legislature in accordance with which a person is deprived of his personal liberty and thus provides for the protection against illegal arrest and detention.

Clause 1 of Article 22 of Indian Constitution states that a person who has been arrested under normal circumstances (not under preventive detention), has the right to know the charges for which he has been arrested and can be detained further and he can’t be denied off an attorney or a lawyer’s service to represent him in court or to guide him and defend him in the court of law. The concerned authority, like the police or any other government authority, is compelled to tell him this information as soon as possible.

Clause 2 of Article 22 of Indian Constitution states that any person who has been arrested by an authority, must be presented before a magistrate within 24 hours of the arrest. This period of 24 hours doesn’t include the time taken to travel to the court of the magistrate. The person cannot be detained or held in custody for more than twenty four hours. After that, it is with the authority or permission of the magistrate that an agency or government body can extend the period of the detention.

Clause (3) of Article 22 however expressly takes away the safeguards of clauses (1) and (2) of Article 22. It states that:-

(a) This states that the rights mentioned in the first two clauses are not valid for a person who is an “enemy alien”. 

(b) This sub-clause states that the rights mentioned in the first two clauses are not applicable to people who have been arrested or detained on the grounds of preventive detention.

Preventive detention means detention of a person without trial and conviction by a court, but merely on suspicion in the mind of an executive authority. Preventive detention is fundamentally different from imprisonment after trial and conviction in a criminal court. In conviction, an accused is sought to be punished for a past act. The offence has to be proved in the court beyond reasonable doubt. In preventive detention a person is detained without trial in the subjective satisfaction of the executive. 

Clause 4 of Article 22 of Indian Constitution deals with the provisions related to safeguard the misuse of the preventive detention powers of the government agencies. According to this, a person who has been detained under preventive detention, cannot be held for more than 3 months without the recommendation of an advisory board. This advisory board will be formed containing at least three members who are either high court judges or have the qualification to be high court judges. 

Clause 5 of Article 22 of Indian Constitution mentions that an individual detained under any order which refers to preventive detention, may be given the right to know the grounds of detention and allowed to make representation against the said detention, on a time that the government sees fit and must be considered as soon as possible.

Clause 6 of Article 22 of Indian Constitution states that while disclosing the grounds of detention to a person, under clause (5) of Article 22 of Indian Constitution, the government has a right to withhold the specifics or facts which it may consider will harm the public interest. 

Clause 7 of Article 22 describe the powers of parliament that by passing law the parliament can

(a) Define the necessary situations in which a person or class can be detained for more than 3 months, without consulting with the Advisory Board. However, they will need to pass a law for this.

(b) It can decide the maximum period of detention

(c) It can modify or define the procedure which is to be followed by the advisory board.

LANDMARK JUDGEMENTS

D.K Basu V State of West Bengal-

In this case, D.K Basu, the Executive chairman of West Bengal Legal Aid Services wrote to the Chief Justice of India about the deaths occurring in police custody which was treated as a writ petition and thus the Supreme Court issued guidelines that are-

  1. Police personnel should wear accurate, visible and clear identification and name tags with their designations while carrying out interrogation and arrest.
  2. A memo of arrest shall be prepared by an arresting police officer and shall be attested by at least one witness and countersigned by the arrestee.
  3. One friend or relative of the arrestee shall be informed, as soon as practicable, of the arrest and detention at the place in question
  4. Where the next friend or relative of the arrestee lives outside the district then he or she must be notified by the police of the time, place of arrest and venue of custody within 8 to 12 hours of the arrest
  5. Arrestee must be informed of his right as soon as he or she is arrested or detained
  6. An entry must be made in the diary at the place of detention regarding all the particulars like arrest of the person, name of next friend who has been informed and the names of the police officers in whose custody the arrestee is detained.
  7. On request, the arrestee should be examined for injuries at the time of arrest and provided with a copy of the resulting report, signed by both the officer and arrestee.
  8. The arrestee should undergo a medical examination every 48 hours by a doctor from an approved panel
  9. Copies of all documents regarding the arrest are to be sent to the appropriate local Magistrate for his or her records
  10. The arrestee may be permitted to meet with his or her lawyer during interrogation , though not throughout the interrogation
  11. A police control room must be established at all district and State headquarters where information regarding arrest should be received within 12 hours of the arrest and displayed on a conspicuous notice board.

Bhim Singh v. State of Jammu and Kashmir-

In this case, a Member of Legislative Assembly (M.L.A.) of Jammu and Kashmir was detained by the police on the eve of the Assembly sessions. From the facts of the case the Supreme Court came to the conclusion that Bhim Singh was not produced either before the Magistrate on 11th or before the Sub Judge on 13th , though he was arrested in the early hours of 10th of September, 1985. According to Article 22(2) of the Constitution of India, persons arrested or detained “shall be produced before the nearest Magistrate within a period of twenty four hours.” On the given facts the Court found that the conduct of police officers was a gross violation of Bhim Singh’s constitutional rights under Article 21 and 22(2). The above discussion amply establishes the fact that persons who are unlawfully deprived of the personal liberty by the officials are legally entitled to claim compensation or damages from the State.

DETENTION UNDER AFSPA

According to section 4 of Armed forces special Power ACT Any Armed forces personnel can shoot to kill in case of the commission or suspicion of the commission of offences and arrest without a warrant.It is  contrary to the Article 21 and Article 22 which talks about the Right to liberty and protect the people from unnecessary detention. AFSPA,violates human rights, There are so many examples when the oppressive powers given to the armed forces have been misused.

Case Laws

  • In Naga’s People Movement, Of Human… vs Union of India, 1997, many writ petitions were filed which probed the authenticity of the Armed Forces (Special Provisions) Act, 1958 and the Assam Disturbed Areas Act,1955. The petitions were filed upon seeing the injustice faced by the people of the disturbed areas. Based on the report, the inquiry found that the complaints were filed whenever there is a misuse of power but on the other side, many complaints were found false. Thus, it was held that the armed forces must function according to the Do’s and Don’ts while using the special power under this Act.
  • In People’s Union For Human Rights vs. Union of India And Ors, 1991, the question was raised that could armed forces arrest a person, male or female without the involvement of the Police Authority or not. It was held that any person whether male or female can be arrested without the consent of the Police Authority during the time and place of which the act being in force.

DETENTION UNDER UAPA

The section 43 D of the UAPA states that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days:

The way the UAPA is being used by the current regime shows that we need to repeal the legislation instead of diluting it. In Bhima Koregaon cases in Maharashtra, everyone is being charged as a terrorist, irrespective of whether that person has anything to do with terrorism. In North-East Delhi cases, victims are charged under UAPA when they were raising their voice through peaceful protests in a non-violent manner.

There is no review committee available under UAPA that would filter the cases and allow prosecuting someone. UAPA took the shape of anti-terrorism law without any sunset clause. In making a comparison between the aforementioned legislations, the UAPA is more oppressive compared to POTA and TADA. There are strict bail conditions in the UAPA and chances of bail are rare.

Case law

  • In Angela Harish Sontakke v State of Maharashtra(2016), the Supreme Court granted bail to the accused, notwithstanding section 43-D(5) of UAPA. The Supreme Court followed this precedent in Sagar Tatyaram Gorkhe v State of Maharashtra (2017) wherein the accused had spent four years in jail, and there were over 147 witnesses still unexamined. “The present case is more egregious than those two above-cited instances,” the Justice Ramana-led bench observed on Monday.

DETENTION UNDER PASA

The Section 3 of the prevention of anti social activities act, 1985 states that, 

(1) The State Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to do so, make an order directing that such person be detained.

(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that the District Magistrate of the Commissioner of Police, may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-section.

The act provides for preventive detention of habitual offenders Under the PASA Act, habitual offenders can be held in preventive detention on the orders of district magistrate for upto one year. After detaining a person, the authorities have to inform the PASA Advisory Board within three weeks, and the board, headed by a retired high court judge, has to inform the government if the detention is valid or not.

If the board opines that there are no sufficient grounds, the detention order is revoked.

Many times the preventive detention under PASA has been misused and abused by the executive authorities but the judiciary have given certain guidelines and judgement which protect the fundamental rights of the accused.

CASE LAW

  • Thakarsibhai v. State of Gujarat

The Court in lieu of the above judgment held that contention raised by the petitioner cannot sustain as only in the exceptional cases, pre detention matters were maintainable. The Court dismissed the petition considering the fact that only one FIR had been registered against the petitioner and the case of the petitioner is not such that it can be entertained under Article 226 of the Constitution of India and no other exceptional circumstance is carved out to intervene with the principles of the detention.

OTHER IMP CASE LAWS RELATED TO DETENTION

  1. The first Preventive Detention Act was passed after independence in 1950. But this act was questioned on its validity in the case of AK Gopalan v. The State of Madras where it was apparent that freedom of an individual does not qualify as provided under Article 21. The Supreme Court, having taken a limited view of Articles 21 and 22, refused to entertain whether there were any inadequacies in the procedure provided by law. It was of the faith that each constitutional article was autonomous of each other. When the petitioner questioned the validity of his detention on the grounds that it violated his rights pursuant to Articles 19 and 21 of the Indian Constitution, the Supreme Court disregarded all the arguments that the detention could be justified merely on the ground that it was conducted in accordance with the ‘legally established procedure.’
  2. In the case of Maneka Gandhi v. Union Of India, the court considerably broadened the range of the expression ‘personal liberty’ and interpreted it in its broadest extent. The court noted that Article 21 does not exclude Article 19 and that any statute depriving a citizen of personal liberty will have to concurrently stand up to the scrutiny of Article 21 and Article 19.
  3. Justice Chandrachud in the case of Justice K. S. Puttaswamy (Retd.) and Anr. v Union Of India And Ors. established threefold conditions in the case of an infringement of personal liberty of individuals: (i) validity, which presupposes the presence of law; (ii) need, identified as a valid purpose of the State; and (iii) proportionality, which guarantees a fair relationship between the objects and the ways pursued to attain them.

CONCLUSION

The intention of the preventive detention law is to prevent the anti-social elements from causing hindrances in the society which might lead to harmful effects on the lives of citizens, but these laws have to be applied with utmost care and precaution so as to avoid any controversy. These laws directly affect the fundamental rights and freedoms of people who are guaranteed by the primary source of law in India i.e. the Constitution of India and the complexities arising out of the irresponsible implementation of these laws can consume a lot of time of the judiciary and life of the person so detained.

Writ petition before the Gujarat High Court

aaditya.bhatt , ,

What is writ petition before the Gujarat High Court

As per the Indian Constitution, under Article 226, High Courts can adjudicate on the aspects of Legal as well as Fundamental Rights, whereas Supreme Court can adjudicate on Fundamental Rights, under Article 32. In the context of State of Gujarat, a writ is an order by a Gujarat High Court to a Government authorities, Lower court or courts, directing them to do something or stop them from doing something. However, it shall be the same conceptual framework for all the High Courts. Writ is a form of written command in the name of the court. It directs you to act in a specific way. In this article we may explore the same in the context of Gujarat High Court or in the context of Article 226 of the Constitution of India.

Gujarat High Court
Gujarat High Court

Introduction

Fundamental Rights are contained in Part III of the Indian Constitution including the right to equality, right to life and liberty etc. Whereas, legal rights are rights enshrined under some statute, or they may simply be claimed by way of equity. However, mere provision for Fundamental Rights or Legal Rights may not be sufficient. The remedy to resolve, if your rights are violated is important. To protect Fundamental Rights as well as Legal Rights the Indian Constitution, under Article 226 provides the right to approach the High Court, Gujarat High Court more specifically, to any person/ citizens whose Right has been violated.

What is a writ?

Fundamentally, a writ is a formal written order issued by anybody, executive or judicial, authorized to do so. In modern times, this body is generally judicial. Therefore, a writ can be understood as a formal written order issued by a Court having authority to issue such an order. Orders, warrants, directions, summons etc. are all essentially writs. 

A writ petition is an application filed before the competent Court, i.e. in this context Gujarat High Court, requesting it to issue a specific writ. As per the Indian Constitution, Gujarat High Court holds powers under Article 226,  against the decision of any court/individual lower according to their jurisdiction. A Writ petition for a civil or criminal nature depending on the situation can be filed by an Individual/aggrieved party to a higher level of court against the order/decision of the lower court.

Under What Circumstances you may need to writ petition before High Court of Gujarat?

Writ petition is generally filed in contravention of rights or injustice is served to any individual/aggrieved. In the Context of State of Gujarat, it is a remedial measure provided by the constitution against the authority regulating the law and order in the country for the following reasons:

  1. To help citizens defend their rights against court orders.
  2. To provide an alternative to the aggrieved when impugned order is not objected by the appeals made to the authorized higher authorities in the legal system.
  3. To make sure justice served but not justice denied.

You can file the writ petition in Gujarat High Court under Article 226 of the Indian constitution. You can also file Writ Petitions in India for a civil or a criminal act.

  • You can file a criminal writ petition when the cause of action in relation to the criminal law such as the right of accused, bail, etc.
  • You can file a civil writ petition when someone commits a civil wrong such as IPR, taxes, etc.

Types of Writs before Gujarat High Court

There are about five types of Writs, which one can file before the Gujarat High Court 

  1. Writ of Habeas Corpus:
    • A petition for personal liberty or release from detention can be filed by an Individual through a petition of Habeas Corpus which means ‘to have control of body’. On receipt of the petition against the order of the lower court or the individual under which the person is or being detained, the court can issue a direction of release.
    • It is in the nature of an order calling upon the person who has detained another to produce the latter before the court
      • To know on what ground he has been detained
      • To set him free if there is no legal justification for the
        imprisonment
    • For instance, a writ petition of Habeas Corpus for release of any person can be made if he is to be placed before the magistrate within 24 hours or if he is arrested for no reason or the reason for his arrest is unjustifiable.
    • Increasing Scope of Habeas corpus
      • Kanu Sanyal v. District Magistrate: the court may examine the legality of the detention without requiring the person detained to be produced before it
      • Sheela Barse v. State of Maharashtra: if the detained person is unable to pray for the writ of habeas corpus, someone else may pray for such writ on his behalf.
      • Nilabati Behera v. State of Orissa: The petitioner was awarded compensation of Rs. 1, 50, 000.
  2. Writ of Mandamus:
    • A petition to issue a command is a Writ of Mandamus. To issue a direction to a lower authority or to any Individual to restrain him from doing any activity, which can result in injustice to the general public or any specific group or individual. Such a petition can command any public authority or tribunal to perform an act which it is bound to perform.
    • The Writ can granted against a public authority if
      • Acted against the law
      • Exceeded his limits of power
      • Acted with mala fides
      • Did not apply his mind
      • Abused his discretionary powers
      • Did not take into account relevant consideration
      • Has taken into account irrelevant consideration
    • For instance, It is the duty of the Judge of a Court to make a decision only on the basis of relevant facts presented, if he fails to do so, with the filling of a petition to a Superior Court, he can be made to do an action in a prescribed way.
    • Case Laws
      • Hemendra v Gauhati University : Mandamus was issued to direct a University to announce that the petitioner has passed where, University had refused so to declare though the petitioner had
        obtained the pass marks required by the statutory rules of the University.
      • Barada Kanta v State of West Bengal : Writ of Mandamus cannot be issued against an individual person or any private organization because they are not entrusted with a public duty.
  3. Writ of Prohibition:
    • A petition to issue a direction or command to any local authority or court to restrict it from acting beyond its jurisdictional powers. A writ of prohibition popularly known as ‘stay order’ is usually issued with the consequences for doing any act or taking action against its reserved powers.
    • It means “To be Certified”. Both preventive and curative. Issued by SC and HC’s for quashing the order of any inferior court, tribunal or Quasi Judicial body.
    • Propositions laid in issuing this writ by the High Court in Hari Vishnu Kamath Vs. Ahmad Ishaque 1955-I S 1104 : ((s) AIR 1955 SC 233)
      •  It is issued to correct the errors of Jurisdiction.
      • When court or tribunal acts illegal in its jurisdiction.
      • Order against principles of natural justice.
      • Court acts in exercise of its supervisory and not appellate Jurisdiction.
      • An error in the decision or determination itself may also be amenable to a writ of Certiorari.
    •  For instance, a Writ of Prohibition can be filed with the Supreme Court to restrict any High Court from taking any decision which is not in the authority of the High Court (‘HC’). 
    • Case Laws:
      • Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors., (1958) SCR 1240, the parameters for the exercise of jurisdiction.
        • Check whether inferior court has exceeded its jurisdiction.
        • Mere formal and technical errors doesn’t attract this.
  4. Writ of Certiorari:
    • A petition to issue an order or command against the decision or order of the lower authority where it was found that the authority has disregarded the laws and principles of natural justice in taking the decision is a Writ of Certiorari. In short, the petition calls for the records or the facts from the lower authority on the basis of which any summon or order was issued. On the satisfaction of facts /records placed by the lower authority, the decision shall be accepted or restricted.
    • For instance, A Writ of Certiorari can be filed by any aggrieved person against the decision of any District Court (DC) to any High Court through which the is sought to be nulled/ quashed.
    • Propositions laid in issuing this writ by the High Court in Hari Vishnu Kamath Vs. Ahmad Ishaque 1955-I S 1104 : ((s) AIR 1955 SC 233)
      • It is issued to correct the errors of Jurisdiction.
      • When court or tribunal acts illegal in its jurisdiction.
      • Order against principles of natural justice.
      • Court acts in exercise of its supervisory and not appellate Jurisdiction.
      • An error in the decision or determination itself may also be amenable to a writ of Certiorari
  5. Writ of Quo Warranto:
    • A petition to restrict – a person to hold a position in any government office or involvement in any decision relating to the victim is a Writ of Quo Warranto. It is required to prevent the official to exercise any powers of the position as such which he is not entitled to hold and/or to nullify the decision taken by him if any. The writ shall be applicable to all public offices and not on private organizations.
    • Issued to restrain a person from holding a public office subject to following Conditions:
      1. Public office created by a statue
      2. Person to be appointed by a statue or statutory instrument.
    • For instance, to restrict a person incompetent to hold the position of a sub-inspector due to his incapability or low qualification, a Writ of Quo Warranto can be filed with the appropriate court of justice.
    • It means “what is your authority”.
      • Subramanian Swamy petition against Jayalalitha in 2001. Two PIL’s against her
        appointment.
      • Manohar Reddy vs Union of India: two advocates filed a petition quashing the appointment of a Judge of a HC of AP and a writ is in the nature of Mandamus commanding the Bar Council of AP to cancel the enrollment as an advocate N V Ramana.

Judicial Review

  • Over and above forms of writ, Judicial review is the idea, fundamental to the system of government, that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judicial branch. Judicial review allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the constitution. Judicial review was established in the classic case of Marbury v. Madison, 5 US 137 (1803). Dealt under Article 13, Article 32 and Article 226 of the Constitution of India, Judicial review is one of the checks and balances in the separation of powers. It is the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority.
  • Judicial review should be understood in the context of both the development of two distinct legal systems (civil law and common law) and two theories of democracy (legislative supremacy and separation of powers) is that some countries with common-law systems do not have judicial review of primary legislation.

To Conclude:

The concept of Writ petition was brought in the Constitution of India to help a victim if he/she is deprived of any right or injustice made to him or to help him fight against any decision taken by the last legal authority. To file a Writ petition before Gujarat High Court the person has to either take the help of a legal adviser or hire a lawyer to file a petition on his behalf.

Please Note:

  • Concept of Writ petition is universal across all the High Courts in the Context of Legal as well as Fundamental rights, within the scope of Article 226 of Indian Constitution and also before the Supreme Court in the context of Fundamental Rights under Article 32. But the present article is written in the context of Gujarat High Court, therefore there is largely reference to Gujarat High Court. 

To know the difference between Write and Appeal, Click here.

126TH CONSTITUTIONAL AMENDMENT BILL

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126TH CONSTITUTIONAL AMENDMENT BILL

Recently, 126th Constitutional Amendment Bill was passed by Parliament.

126TH CONSTITUTIONAL AMENDMENT BILL
126TH CONSTITUTIONAL AMENDMENT BILL

MORE ABOUT 126TH CONSTITUTIONAL AMENDMENT BILL EXTENDING RESERVATION TILL 25TH JANUARY 2030

  • This bill was brought for two objectives:
    • Extend reservation for Scheduled castes (SC) and Scheduled Tribes (ST) to Lok Sabha and legislative bodies.
    • Remove provision of nominating Anglo Indians to Lok Sabha and legislative bodies.
  • The bill has provisions for amending Article 334 and extending reservation only for Scheduled castes (SC) and Scheduled Tribes (ST) to Lok Sabha and legislative bodies till 25th January, 2030 (which was expiring in 2020).
  • Article 334 originally provided that reservation of seats and special representation would cease 10 years after the commencement of Constitution. But this was extended every 10 years (8th,23rd,45th,62nd,79th and 95th amendments).
  • Currently, only some state Assemblies like Andhra Pradesh, Bihar, Chhattisgarh, Jharkhand etc. have one Anglo-Indian member each. The Amendment does away with this as well.
  • No member from the Anglo-Indian community has been nominated to the current Lok Sabha.
  • Earlier a panel, comprising Union Defence Minister, Home Minister, Social Justice Minister etc. had observed that the community was doing well and did not need reservation.
  • Since, the amendment falls within the purview of Article 368 (2) (d) dealing with “the representation of States in Parliament”, it is required to be ratified by the Legislature of not less than half of the States by simple majority.
    • Article 368 deals with power of Parliament to amend the Constitution and procedure therefor.
      Constitutional Provisions for reservation of seats For SC/STs
    • Article 330 and 332 provides for the reservation of seats for SC/STs in Lok Sabha and State Legislative Assemblies respectively, on the basis of their population ratio.
    • Also, there is no bar on SC/STs candidates contesting from general seats.
  • For Anglo-Indians:
    • The reservation for Anglo Indians was provided as they were in very small numbers and were diffused over different parts of the country. o The idea of such nominations is traced to Frank Anthony, who headed the All India Anglo-Indian Association. Article 331 was added in the Constitution following his suggestion to Jawaharlal Nehru.

Provisions

  • Under Article 331 President can nominate two members of Anglo-Indian community in Lok Sabha, if not adequately represented.
  • Article 333 provides same powers to Governor of a state to nominate one Anglo-Indian member.
  • According to the 10th Schedule of the Constitution, Anglo-Indian members of Lok Sabha and state Assemblies can take the membership of any party within six months of their nomination. But, once they do so, they are bound by their party whip.
  • The Anglo-Indian members enjoy the same powers as other MPs, but they cannot vote in the Presidential election.

DOCTRINE OF POLITICAL NEUTRALITY

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DOCTRINE OF POLITICAL NEUTRALITY

Why in news?

In recent times, constitutional offices have come under the scanner of Supreme Court (SC) on the grounds of Doctrine of Political neutrality.

POLITICAL NEUTRALITY
Learning from Mahatma Gandhi

Background

Through its various judgement, Supreme Court has highlighted the need for authorities like Speaker and Governor to be faithful to doctrine of neutrality and not vacillate under “prevailing political pressures” and thus maintaining Political Neutrality.

 

Understanding Doctrine of Political Neutrality

  • It is a bedrock of a constitutional democracy. Neutrality is about being ‘a third’ vis-à-vis a conflict between others.
  • The claim of neutrality is a claim addressed to the belligerent parties to show respect for the choice of the neutral and not to become involved in their conflict.

 

Significance of Neutrality Doctrine in case of Constitutional offices

Upholding constitutional trust:

  • A constitution vests the trust in the office of Speaker, Governor, EC etc. which needs to ensure their neutrality in their actions.
    • Ensuring political fairness: The exercise of the wide constitutional powers by the constitutional office such as Governor’s, speaker’s, CAG’s and Election Commission’s is supposed to be in line with the “sacred” conventions of political neutrality and fairness. o However, we see erosion of such conventions in case of Uttarakhand and Arunachal Pradesh, the Speakers in both assemblies had helped ruling parties keep their flocks together by using their powers to disqualify MLAs under the Tenth Schedule.
    • Upholding federalism: In India, the balance of power is tilted towards the Union. The importance of the constitutional posts such as Governor’s arises from, he being the crucial link within this federal structure in maintaining effective communication between the Centre and a State.
    • For continuity in governance and keeping a check on the executives: Constitutional posts such of Speakers and Governors, acting independently of each other or in concert, can navigate the destiny of State governments. As a figurehead who ensures the continuance of governance in the State, even in times of constitutional crises, Governor’s role is often that of a neutral arbiter in disputes settled informally within the various strata of government, and as the conscience keeper of the community.

For a fair system of election and thus strengthening democracy:

  • Elections are pivotal to the quality of a country’s governance and can either greatly advance or set back a country’s long-term democratic development. Therefore here EC’s neutrality is of utmost significance and value.

To maintain the health of the economy:

  • The independence, powers and responsibilities of the constitutional offices like CAG’s place high ethical demands on the auditor and the staff he employs or engages for auditing and accounting work. The general standards for the CAG include independence from the legislature and from the executive so that any economic misconduct by the government or siphoning of the public exchequer can be pointed out.

Conclusion

The principle of political neutrality, which requires the state to remain neutral on disputed questions is an extension of traditional liberal principles of toleration and independence of opinion. Thus, political neutrality casts duties not only on constitutional offices but also on government of the day. The political leaders must protect independent constitutional offices from political interference and must not involve them in political activities or debates.

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