LLM 102: Comparative Public Law

Detailed and Comprehensive Notes

UNIT-I: Introduction

a) Meaning and Definition of Public Law

Meaning

Public Law refers to the branch of law that governs the relationship between individuals and
the state. It encompasses laws, regulations, and principles that define and regulate the structure,
powers, and functions of government entities, ensuring that they operate within legal
boundaries. This area of law focuses on the protection of public interests, promoting fairness,
equity, and accountability in governance, and safeguarding citizens from arbitrary actions by
public authorities.

• Purpose:
Public Law is designed to:

o Maintain social order and justice.

o Regulate interactions between the government and individuals or groups.

o Ensure the proper functioning of governmental institutions.

• Scope:

o Establishes the framework of government operations, such as the separation of

powers, judicial review, and legislative authority.

o Covers the enforcement of legal standards in public administration.

Definition

Public Law encompasses a range of legal disciplines that deal with issues affecting the state
and its citizens collectively, rather than private relationships between individuals. It includes:

• Constitutional Law: Governs the structure and operation of the government,

fundamental rights, and duties of citizens.

• Administrative Law: Regulates the actions of administrative agencies and their

interactions with the public.
 • Criminal Law: Defines offenses against the state and prescribes punishments for
offenders.

Key Features

1. Addresses Public Concerns:

o Focuses on legal issues that affect the general public rather than private disputes.

o Examples: Governance policies, public health regulations, and criminal laws.

2. Regulates Conduct of Public Authorities:

o Ensures that public officials and agencies act within the scope of their legal
authority.

o Prevents misuse or abuse of power.

3. Ensures State Accountability:

o Promotes transparency and accountability in governance.

o Allows judicial review of legislative and executive actions to prevent

unconstitutional practices.

4. Protects Fundamental Rights:

o Guarantees individuals’ rights against unlawful interference by the state.

5. Balances Power Dynamics:

o Balances power among the legislature, executive, and judiciary.

Case Laws

1. A.K. Gopalan v. State of Madras (1950):

o Facts: A.K. Gopalan, a communist leader, was detained under the Preventive
Detention Act, 1950. He challenged the detention, claiming it violated his
fundamental rights under Articles 19 and 21 of the Indian Constitution.

o Judgment: The Supreme Court held that the validity of preventive detention
laws must be judged based on Article 21 (Right to Life and Personal Liberty)
alone and not in conjunction with Article 19.

o Significance: This case clarified the application of Public Law by interpreting

fundamental rights and the extent of state power in restricting them.
 2. Minerva Mills Ltd. v. Union of India (1980):

o Facts: The case questioned the constitutional validity of amendments to the

Indian Constitution that placed directive principles of state policy above
fundamental rights.

o Judgment: The Supreme Court struck down the amendments, declaring that the
harmony between fundamental rights and directive principles is part of the Basic
Structure of the Constitution.

o Significance: This landmark judgment reinforced the principle that Public Law
safeguards citizens' rights while maintaining the balance of power between
fundamental rights and directive principles.

Detailed Insights into Public Law Applications

1. In Governance:

o Establishes legal parameters for the functioning of government institutions.

o Example: Parliamentary procedures and executive decisions are subject to

judicial scrutiny under Public Law.

2. In Administrative Actions:

o Regulates the discretionary power of administrative agencies.

o Example: Decisions of regulatory bodies like the Telecom Regulatory Authority

of India (TRAI) must comply with Public Law principles.

3. In Criminal Justice:

o Prescribes legal standards for maintaining public order and safety.

o Example: Public Law defines offenses such as treason, terrorism, and corruption
that directly impact state security and governance.

4. In Ensuring Equality:

o Promotes the Rule of Law, ensuring all individuals are equal before the law.

o Example: The case of Indira Nehru Gandhi v. Raj Narain (1975) emphasized
equality before the law, even for high-ranking officials.

5. In Protecting Public Interest:

o Enables mechanisms like Public Interest Litigation (PIL) to address societal

issues.
 o Example: Hussainara Khatoon v. State of Bihar (1979) used PIL to improve
conditions in overcrowded prisons.

Public Law is the cornerstone of a just society, shaping the relationship between the state and
its citizens to ensure fairness, accountability, and protection of fundamental rights.

b) Concept of Public Law

Scope of Public Law

Public Law defines the legal framework that governs the relationship between individuals and
the state. Its scope is extensive, covering multiple aspects of governance and citizen rights:

1. Protection of Individual Rights Against State Actions:

o Ensures that state actions do not violate citizens' fundamental rights.

o Examples include protection against arbitrary detention, censorship, or

excessive taxation.

o Case Law:

▪ Maneka Gandhi v. Union of India (1978): Expanded the interpretation

of the right to life and personal liberty under Article 21, ensuring that no
state action is arbitrary.

2. Control Over Public Authorities:

o Regulates the activities and decisions of government officials and public

institutions.

o Ensures these entities act within their legal authority and for the public good.

o Case Law:

▪ D.C. Wadhwa v. State of Bihar (1987): The Supreme Court held that
repeated promulgation of ordinances without placing them before the
legislature was unconstitutional, ensuring checks on the executive’s
misuse of power.

3. Scope in Public Administration:

o Governs the implementation of policies, delivery of public services, and

allocation of resources.
 o Example: Public Law frameworks guide welfare schemes like the Right to
Education or the National Food Security Act.

Significance of Public Law

1. Maintains Checks and Balances on State Power:

o Ensures that no branch of government (legislative, executive, or judiciary)

oversteps its boundaries.

o Promotes a balanced power structure, preventing the concentration of authority.

o Case Law:

▪ Kesavananda Bharati v. State of Kerala (1973): Established the Basic

Structure Doctrine, limiting the amending power of the legislature to
preserve constitutional integrity.

2. Guarantees Equitable Governance:

o Ensures fair treatment of all citizens irrespective of socio-economic status,

gender, or religion.

o Protects minorities and marginalized groups from discrimination.

o Example: Affirmative actions such as reservations in education and

employment are rooted in Public Law principles.

3. Facilitates Accountability of Public Authorities:

o Establishes mechanisms to hold public officials and institutions accountable for

their actions.

o Example: The establishment of Lokpal and Lokayuktas to address corruption at

the central and state levels.

4. Promotes Rule of Law:

o Establishes that laws, not arbitrary decisions, govern the country.

o Ensures equality before the law for all individuals, including public officials.

o Case Law:

▪ Indira Nehru Gandhi v. Raj Narain (1975): The Supreme Court

emphasized that the Rule of Law is fundamental to democracy,
invalidating any immunity granted to public officials for
unconstitutional acts.
 5. Facilitates Judicial Review:

o Empowers courts to review legislative and executive actions to ensure

compliance with constitutional principles.

o Example: The judiciary’s role in striking down unconstitutional laws or

executive orders.

o Case Law:

▪ L. Chandra Kumar v. Union of India (1997): Upheld the power of the

judiciary to review decisions of tribunals to ensure fairness and
constitutionality.

Public Law is vital in defining the relationship between the state and its citizens. Its scope and
significance ensure a legal system that is fair, accountable, and oriented towards public welfare,
preventing the misuse of power and upholding democratic values.

c) Globalization of Comparative Public Law

Introduction

Globalization of Comparative Public Law refers to the increasing influence of legal principles,
practices, and frameworks across national boundaries. It involves the exchange, adoption, and
adaptation of constitutional and administrative principles among jurisdictions worldwide. This
phenomenon has been driven by factors such as international cooperation, global human rights
movements, and the development of international legal institutions.

Global Influence

1. Spread of Constitutional Principles Across Jurisdictions:

o Constitutional principles such as separation of powers, judicial

independence, and fundamental rights have been adopted and adapted
globally.

o Example: The concept of separation of powers, as established by Montesquieu

and implemented in the United States, has significantly influenced the
governance systems of countries like India and France.

o Influence on democratic systems: Global legal trends encourage the adoption of

checks and balances, parliamentary governance, and constitutional supremacy.

2. Development of International Legal Norms:

 o The establishment of international conventions and treaties promotes uniform
standards in public law across nations.

o Example: The Universal Declaration of Human Rights (UDHR) (1948) has

been instrumental in shaping constitutional guarantees of fundamental rights in
various countries, including India’s Part III on Fundamental Rights.

o Influence on human rights: Principles of equality, freedom, and justice

enshrined in international treaties have become benchmarks for evaluating
domestic laws and policies.

Examples of Global Influence

1. Judicial Review and the US Constitution:

o The doctrine of judicial review, firmly rooted in the US legal system through
cases like Marbury v. Madison (1803), has influenced other jurisdictions,
including India.

o In India:

▪ The judiciary’s power to review laws for constitutional validity was

adopted through cases such as Kesavananda Bharati v. State of Kerala
(1973), affirming the Basic Structure Doctrine.

o Global impact: The principle ensures that laws enacted by legislatures do not
contravene constitutional provisions.

2. Role of International Courts:

o Courts such as the European Court of Human Rights (ECHR) and the
International Criminal Court (ICC) influence domestic legal systems by
setting standards for human rights protection and accountability.

o Example:

▪ The ECHR’s judgments on privacy, freedom of expression, and anti-

discrimination have led to reforms in national laws across Europe.

▪ Dudgeon v. United Kingdom (1981): The ECHR held that

criminalization of homosexuality violated Article 8 of the European
Convention on Human Rights, influencing domestic law changes.

3. Impact of Transnational Legal Practices:

 o Legal systems increasingly borrow ideas from other jurisdictions to address
global challenges like environmental protection, corporate governance, and
anti-corruption measures.

o Example:

▪ The Right to Information Act in India (2005) was influenced by global

transparency movements and similar legislation in other countries like
Sweden’s Freedom of the Press Act (1766).

Significance of Globalization in Comparative Public Law

1. Fostering Legal Uniformity:

o Promotes shared values and principles, ensuring consistency in addressing

universal issues like human rights and environmental justice.

2. Enhancing Legal Frameworks:

o Enables countries to strengthen their legal systems by learning from successful

practices elsewhere.

o Example: Adoption of PIL (Public Interest Litigation) in India was influenced

by the US class action lawsuits.

3. Encouraging Judicial Cooperation:

o Facilitates collaboration among international and domestic courts, creating a

global legal community committed to justice.

4. Driving Legal Reforms:

o Global benchmarks influence nations to modernize their laws in line with

international standards.

o Example: Incorporation of international trade norms under the World Trade

Organization (WTO) into domestic trade laws.

Globalization has enriched Comparative Public Law by fostering an interconnected legal

landscape where jurisdictions learn and evolve together. By sharing principles and practices,
nations achieve better governance and uphold human dignity in a rapidly integrating world.

d) Constitutionalism and Rule of Law

Constitutionalism

Constitutionalism refers to the idea that government authority is limited by law and that
government power should be exercised according to predetermined principles laid out in a
constitution. It is a fundamental philosophy that ensures that the state's powers are not abused,
and individual liberties are protected. Constitutionalism not only focuses on the structural
aspects of government but also on protecting democratic principles and fundamental human
rights.

Key Features of Constitutionalism:

o Separation of Powers:

▪ One of the central tenets of constitutionalism is the separation of

powers, which divides government responsibilities into three branches:
the legislature, executive, and judiciary. This division ensures that no
one branch becomes too powerful or dominant, and each branch has the
ability to limit the powers of the others.

▪ In a well-functioning democracy, the executive enforces laws, the

legislature makes laws, and the judiciary interprets them. The
separation of powers ensures that all branches are interdependent,
creating a system of checks and balances.

o Protection of Fundamental Rights:

▪ Constitutionalism also emphasizes the protection of individual rights. A

constitution typically enshrines fundamental rights, such as freedom of
speech, the right to equality, the right to due process, and others.

▪ These rights serve as a safeguard against government overreach. Even

when there is a majority or a powerful ruling entity, constitutionalism
ensures that these rights cannot be easily altered by a majority vote or
executive order. Fundamental rights are guaranteed and protected by the
Constitution, making them inviolable.

Significance of Constitutionalism:

o Limitations on Government Power:

▪ Constitutionalism prevents the concentration of power in any one

institution or individual. By restricting government powers and placing
them under legal scrutiny, it ensures that the government's actions
remain accountable to the public and to the law.

o Protects Individual Liberties:

 ▪ Constitutionalism safeguards the rights and freedoms of citizens against
any arbitrary actions or unjust laws passed by the state. It provides
individuals with legal recourse to challenge unconstitutional laws or
actions.

o Promotes Stability and Predictability:

▪ A constitution provides a stable framework for governance, ensuring

that citizens know their rights and the scope of government powers. It
brings order and predictability to the legal system, which is essential for
a functioning democracy.

o Fosters Democracy:

▪ By adhering to the principles of constitutionalism, governments ensure

that power is derived from the will of the people, rather than from the
arbitrary decisions of leaders. A constitution reflects the collective
agreement of society on how it should be governed.

Case Law:

o Kesavananda Bharati v. State of Kerala (1973):

▪ This landmark decision by the Supreme Court of India established the

Doctrine of Basic Structure, which holds that certain basic features of
the Constitution are beyond the power of Parliament to amend. The
Court ruled that Parliament could not alter the Constitution in a way that
would destroy its fundamental structure, such as the separation of
powers, the rule of law, or the protection of fundamental rights.

▪ This judgment emphasized that the Constitution is a living document,

which requires adherence to its core principles. It reinforced the idea that
no one, not even the legislature, could infringe on the Constitution's
fundamental principles.

Rule of Law

The Rule of Law is a foundational concept in both constitutionalism and democratic

governance. It is the principle that law governs a nation, and not the arbitrary decisions or
actions of individuals. Under the rule of law, laws are clear, applied equally, and consistently
enforced, ensuring that both the rulers and the ruled are subject to the law.

1. Key Attributes of Rule of Law:

o Equality Before the Law:

 ▪ The rule of law asserts that every individual is equal before the law,
meaning that all persons, regardless of their social, economic, or
political status, should be treated equally and fairly by the legal system.

▪ This principle guarantees that no one is above the law, not even the
government, ensuring fairness in both legal proceedings and policy
enforcement.

o Absence of Arbitrary Power:

▪ The rule of law ensures that no person or institution, including the state,
can exercise arbitrary or unchecked power. It mandates that all
government actions must be based on written laws, established
procedures, and respect for individual rights.

▪ This attribute prevents individuals or authorities from making arbitrary

decisions or enacting laws that violate basic rights or constitutional
guarantees.

o Legal Certainty:

▪ Laws should be clear, stable, and applied consistently. Citizens should

have certainty about their legal rights and obligations. The rule of law
upholds that laws must be public, known in advance, and applied
consistently to prevent arbitrary judicial rulings.

o Access to Justice:

▪ The rule of law ensures that individuals have access to an independent

judiciary to challenge injustices, thereby preventing the abuse of power
by authorities. It guarantees individuals’ right to fair trial procedures,
protection from arbitrary detention, and the right to appeal.

2. Significance of Rule of Law:

o Protection of Rights and Liberties:

▪ The rule of law protects the fundamental rights of individuals by

ensuring that laws are applied impartially. It ensures that every person
is entitled to equal protection under the law and can challenge unlawful
acts.

o Prevents Tyranny:

▪ By ensuring that all government actions are subject to legal scrutiny, the
rule of law prevents the rise of authoritarianism or dictatorship. It
 ensures that even government officials and institutions are held
accountable under the law.

o Supports Social Order:

▪ The rule of law contributes to social stability by ensuring that laws are
uniformly applied, helping resolve disputes and conflicts in an orderly
and predictable manner.

o Fosters Trust in Legal Institutions:

▪ When laws are applied fairly and consistently, it builds public trust in
the legal system and the institutions responsible for enforcing the law.
Trust in the judiciary and law enforcement is crucial for maintaining the
rule of law.

3. Case Law:

o Indira Nehru Gandhi v. Raj Narain (1975):

▪ This case was a landmark decision in Indian constitutional law where

the Supreme Court ruled that even the Prime Minister of India is not
above the law. The case arose from a challenge to the validity of Indira
Gandhi's election, which had been declared invalid by the Allahabad
High Court.

▪ The Supreme Court reinforced the principle that the rule of law is
supreme and that all laws must be consistent with the Constitution. Even
in times of national emergency or political dominance, the government
and its leaders must adhere to constitutional provisions and laws. This
case reaffirmed the fundamental principle that no one, regardless of their
power or status, is exempt from legal scrutiny.

Conclusion

Both Constitutionalism and the Rule of Law are vital for the functioning of a democratic
society. Constitutionalism establishes the framework for government operation and limits its
powers, ensuring the protection of rights and the accountability of state institutions. The Rule
of Law, on the other hand, ensures that all actions of the government and its officials are subject
to the law, maintaining fairness, justice, and equality. Together, these principles form the
bedrock of any democratic system, ensuring that governance is carried out with respect for
fundamental rights, justice, and the rule of law.
 UNIT-II: Tools of Comparative Public Law

a) Constitutional Law – Forms of Government, Separation of Powers

Forms of Government

The form of government defines the distribution and exercise of power in a state. It outlines
the relationship between the executive, legislature, and judiciary. Two major forms of
government in constitutional systems are parliamentary and presidential systems, which
differ in how the executive branch derives its authority and operates in relation to the
legislature.

1. Parliamentary System:

o Definition: In a parliamentary system, the executive is derived from and is

accountable to the legislature (parliament). The head of government, usually
called the Prime Minister, is the leader of the majority party or coalition in the
legislature and is appointed by the legislature. The executive does not have a
clear separation from the legislative branch, as the members of the executive are
also members of the legislature.

o Key Features:

▪ Fusion of Powers: The executive is a part of the legislature. The Prime

Minister and the Council of Ministers are drawn from and are
accountable to the legislature.

▪ Collective Responsibility: The Cabinet is collectively responsible to

the parliament for its actions and decisions.

▪ Example: The United Kingdom and India both follow a parliamentary

system of government.

▪ In India, the Prime Minister is appointed by the President but

must maintain the confidence of the Lok Sabha (lower house of
parliament) to remain in office.

o Advantages:

▪ Flexibility: The executive can be changed without a general election

(e.g., through a vote of no confidence).

▪ Greater control over legislation due to the fusion of powers.

o Disadvantages:
 ▪ Potential instability if there is no clear majority, leading to frequent
changes in government.

2. Presidential System:

o Definition: In a presidential system, the executive is separate from the

legislature. The President serves as both the head of state and head of
government and is elected independently of the legislature. There is a clear
separation of powers between the executive, legislative, and judicial branches,
which operate independently of each other.

o Key Features:

▪ Clear Separation of Powers: The executive does not have a direct

accountability to the legislature, and the President cannot be dismissed
by the legislature except through impeachment.

▪ Fixed Term: The President is elected for a fixed term and cannot be
easily removed from office unless through impeachment procedures for
violations of law.

▪ Example: The United States follows a presidential system, where the

President is directly elected by the people, separate from Congress.

o Advantages:

▪ Stability: The President is elected for a fixed term, providing

consistency in leadership.

▪ Independent Executive: The President has independent powers and is

not subject to the fluctuating control of the legislature.

o Disadvantages:

▪ Potential for gridlock: The separation of powers may lead to conflicts

between the President and the legislature, resulting in legislative
deadlock.

Separation of Powers

The separation of powers is a fundamental principle in modern constitutional systems. It is

the division of government responsibilities into three branches: the executive, legislature, and
judiciary. The primary purpose of this separation is to prevent the concentration of power in
one branch, ensuring a system of checks and balances. Each branch has its own distinct
functions and is designed to act as a check on the other branches.
 1. Key Features of Separation of Powers:

o Executive: The executive branch is responsible for enforcing and implementing

laws. In a parliamentary system, the executive is drawn from the legislature,
while in a presidential system, the executive is independent.

o Legislature: The legislature is responsible for making laws, scrutinizing the

executive, and representing the people.

o Judiciary: The judiciary is responsible for interpreting laws and ensuring that
government actions conform to the Constitution. The judiciary has the power to
strike down unconstitutional laws and acts.

o Checks and Balances: Each branch has mechanisms to check the powers of the
other branches. For example, in a presidential system, the President may veto
legislation passed by Congress, while Congress has the power to override the
veto with a supermajority. Similarly, the judiciary can review laws passed by
the legislature and executive actions to ensure they comply with the
Constitution.

2. Significance of Separation of Powers:

o Prevents Abuse of Power: By dividing government functions and ensuring no

one branch dominates, the separation of powers limits the potential for
corruption and authoritarian rule.

o Promotes Accountability: Each branch is held accountable by the others,

ensuring that actions taken by the government are transparent and justifiable.

o Ensures Fairness: The separation of powers ensures that no single branch has
unchecked power, promoting fairness and justice in governance.

Key Case Laws

1. Ram Jawaya Kapoor v. State of Punjab (1955):

o Issue: This case involved the interpretation of the nature of India's

parliamentary system of government and the relationship between the
executive and legislature.

o Judgment: The Supreme Court of India clarified that, while the Indian
Constitution follows the parliamentary form of government, the executive
does not have absolute power to override or dictate the laws of the legislature.
The executive, though drawn from the legislature, cannot function
independently of the legislative will. The Court upheld the principle that the
 executive in India is responsible to the legislature and must act within the
framework defined by the Constitution.

o Significance: This case reinforced the idea that the Indian government follows
a parliamentary system where the executive is bound by the will of the
legislature.

2. S.P. Gupta v. Union of India (1982):

o Issue: This case addressed the scope of judicial independence and the
relationship between the judiciary and the executive in the context of the
separation of powers.

o Judgment: The Supreme Court of India in this case emphasized that the
judiciary must function independently of the executive, ensuring that the
judiciary remains free from political influence. The case also dealt with the
appointment of judges and the principle of judicial accountability. The Court
asserted that the separation of powers doctrine necessitates judicial autonomy
and highlighted that the judiciary cannot be subordinated to the executive.

o Significance: This landmark judgment reinforced the doctrine of separation

of powers and judicial independence, marking a significant step in ensuring that
the judiciary remains an effective check on the powers of the executive and
legislature.

Conclusion

Understanding the forms of government and the separation of powers is crucial to analyzing
the functioning of constitutional systems. Whether in a parliamentary system or a
presidential system, the distribution and relationship between the executive, legislature, and
judiciary are fundamental to ensuring balanced governance, preventing authoritarianism, and
protecting individual rights. Case laws such as Ram Jawaya Kapoor and S.P. Gupta help
clarify the real-world application of these principles, emphasizing the importance of an
accountable, independent, and responsible government system.

b) Legislative Mechanism – Supremacy of Legislature

Definition:

The legislature is considered the supreme legal authority within its jurisdiction, responsible
for making, amending, and repealing laws. The principle of legislative supremacy asserts that
the legislature, once elected or appointed according to the constitution, holds the power to enact
laws within the scope of its powers, without interference from other branches of government.
However, the scope of legislative supremacy varies depending on the system of government
and constitutional framework.

Types of Legislative Supremacy:

1. Absolute Legislative Supremacy (Parliamentary Sovereignty):

o In countries with parliamentary sovereignty, the legislature has absolute

power to make and repeal laws, and no other body, including the judiciary, can
question or override the laws passed by the legislature.

o Example – United Kingdom:

▪ The UK follows the doctrine of parliamentary sovereignty, where

Parliament can make or unmake any law, and no court can challenge
or set aside its laws. The British Parliament is supreme, and its laws are
not subject to judicial review.

▪ Key Characteristics:

▪ No judicial review: Laws passed by Parliament cannot be

invalidated by the judiciary.

▪ Unlimited legislative power: Parliament can pass laws on any

matter, including constitutional changes.

2. Limited Legislative Supremacy:

o In countries like India and others with a written constitution, the legislature’s
power is limited by constitutional provisions, such as fundamental rights and
the basic structure doctrine. These legal systems typically grant judicial
review power to courts, allowing them to strike down laws that conflict with
constitutional principles.

o Example – India:

▪ India’s legislature, while having significant power to make laws, is not

supreme because its authority is limited by the Constitution of India,
which defines the scope of legislative power and protects fundamental
rights.

▪ The judiciary has the power to review laws passed by Parliament to

ensure they align with the Constitution, particularly fundamental rights
and the basic structure doctrine.

▪ Key Characteristics:
 ▪ Judicial Review: Courts have the power to invalidate laws that
are inconsistent with the Constitution.

▪ Constitutional Limits: Laws passed by the legislature cannot

violate constitutional guarantees like fundamental rights.

Significance of Legislative Supremacy:

1. Ensuring Representation and Accountability:

o Legislative supremacy ensures that the elected legislature, which represents the
people, is the primary source of law. This principle reinforces democratic
governance by allowing elected representatives to have the final say in
lawmaking.

2. Establishing Checks and Balances:

o In countries with judicial review, legislative supremacy is balanced by the

judiciary’s power to strike down unconstitutional laws, ensuring a system of
checks and balances that prevents the abuse of power.

3. Flexibility in Lawmaking:

o Legislative supremacy enables the legislature to adapt laws according to

changing social, economic, and political realities, ensuring that the law evolves
with the needs of society.

Case Law:

1. Kesavananda Bharati v. State of Kerala (1973):

o Issue: The case dealt with the question of whether the Indian Parliament had
the authority to amend the Constitution, specifically regarding the Basic
Structure Doctrine.

o Judgment: The Supreme Court of India held that while Parliament has the
authority to amend the Constitution, it cannot alter or destroy its basic
structure. The Court recognized that there are limits to the legislature’s power,
especially when it comes to altering fundamental aspects of the Constitution.
This case introduced the Basic Structure Doctrine, which has since served as
a check on legislative supremacy.

o Significance:

▪ The Court ruled that even though Parliament has significant powers, its
authority is not absolute and is constrained by the Constitution’s
basic structure.
 ▪ The case limited legislative supremacy in India by recognizing judicial
review and the protection of the Constitution’s core principles.

2. R. C. Cooper v. Union of India (1970):

o Issue: This case involved the challenge to the constitutional validity of the
Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969,
which nationalized 14 commercial banks in India.

o Judgment: The Supreme Court ruled that while the Parliament has the power
to enact laws, it cannot violate the fundamental rights guaranteed by the
Constitution. The Court emphasized that laws passed by the legislature must not
violate the Constitution’s principles, particularly the right to property (before
it was amended to the right to compensation).

o Significance: This case further reinforced the principle of judicial review,

where the judiciary can invalidate laws if they are found to be inconsistent with
the Constitution.

Conclusion:

While the principle of legislative supremacy is foundational to democratic governance, its

application varies based on the system of government. In systems with parliamentary
sovereignty, the legislature holds absolute power to make laws, as seen in the UK. In contrast,
India’s system is characterized by limited legislative supremacy, where the legislature’s
power is constrained by the Constitution and judicial review, ensuring that laws align with
constitutional principles and protect fundamental rights. Landmark cases like Kesavananda
Bharati and R. C. Cooper have reinforced the importance of maintaining a balance between
legislative authority and constitutional limits.

c) Typology of Federalism – USA, India

Federalism refers to the division of powers between two levels of government: the central (or
federal) government and the regional (or state) governments. While federalism exists in many
countries, its application varies depending on the constitutional structure. The USA and India
represent two distinct types of federal systems with different approaches to the distribution of
powers and relationships between central and state authorities.

USA Federalism:

The United States follows a dual federalism model, which is characterized by a strict
separation of powers between the federal government and state governments. In this model,
each level of government operates within its own sphere of authority, and there is minimal
overlap.
1. Key Features of US Federalism:

o Strict Separation of Powers:

▪ The federal government and state governments have distinct, separate

powers. The powers of the federal government are limited to those
enumerated in the US Constitution, while states retain all powers not
specifically granted to the federal government.

o Federal Supremacy:

▪ Under the Supremacy Clause of the US Constitution (Article VI),

federal law prevails over state law in case of any conflict. This
establishes the primacy of federal law, especially in areas where the
Constitution grants exclusive federal jurisdiction.

o Enumerated Powers:

▪ The Constitution clearly lists the powers of the federal government, and
the states retain all other powers, which creates a distinct line between
federal and state jurisdictions.

o Cooperative Federalism (later development):

▪ Over time, the relationship between the federal and state governments
evolved, leading to cooperative federalism, where the two levels of
government work together in various areas like education, healthcare,
and transportation.

2. Key Case Law:

o McCulloch v. Maryland (1819):

▪ Issue: The case revolved around whether the state of Maryland could
impose taxes on the Second Bank of the United States, a federally
established institution.

▪ Judgment: The Supreme Court of the United States ruled in favor of

federal supremacy, asserting that the federal government had the implied
power to create a national bank and that states could not interfere with
federal institutions or tax them.

▪ Significance: The ruling confirmed the supremacy of federal law over

state laws, emphasizing the constitutional principle that federal powers
take precedence over state laws in case of a conflict.

o Gibbons v. Ogden (1824):

 ▪ Issue: The case involved a dispute over interstate commerce, with New
York granting a monopoly on steamboat operations while federal law
authorized competing operations.

▪ Judgment: The Court ruled that the federal government had the
exclusive right to regulate interstate commerce under the Commerce
Clause of the Constitution, reinforcing federal supremacy.

▪ Significance: This case further clarified the scope of federal authority

over state regulations, particularly regarding interstate commerce.

Indian Federalism:

India follows a quasi-federal system, which is a unique blend of federalism and centralization.
While India’s Constitution provides for a division of powers between the central government
and states, it leans heavily towards a strong central government. In practice, the central
government often exercises significant control over state affairs, and there is more flexibility
in how power is shared.

1. Key Features of Indian Federalism:

o Strong Central Government:

▪ The Constitution of India gives the central government more authority,

especially in times of crisis or when the national interest is at stake. The
central government has overriding powers in areas such as defense,
foreign affairs, and national security.

o Union List, State List, and Concurrent List:

▪ India’s Constitution divides the powers into three lists: the Union List
(powers exclusive to the central government), the State List (powers
exclusive to the state governments), and the Concurrent List (shared
powers between central and state governments).

▪ In case of conflict between central and state laws on subjects in the

Concurrent List, the central law prevails.

o Central Control in Emergency Situations:

▪ The central government has the authority to dissolve state governments

and impose President’s Rule in states under certain conditions,
significantly reducing the autonomy of states.

o Quasi-Federal Structure:
 ▪ While the Constitution recognizes the states as autonomous units, the
Centre retains the power to overrule state decisions in key areas,
especially during emergencies.

2. Key Case Law:

o S.R. Bommai v. Union of India (1994):

▪ Issue: The case addressed the question of whether the imposition of

President’s Rule (Article 356) in various states violated the federal
structure of the Constitution.

▪ Judgment: The Supreme Court of India held that federalism was an

essential feature of the Indian Constitution, which formed part of its
Basic Structure. The Court stated that the power to dissolve a state
government and impose President’s Rule should not be arbitrary and
must follow constitutional principles.

▪ Significance: This case affirmed the federal nature of India’s

Constitution, while also emphasizing the primacy of the Central
Government in certain situations. It reinforced that Indian federalism
is characterized by the supremacy of the Centre, even though the states
have autonomy in many areas.

o State of Rajasthan v. Union of India (1977):

▪ Issue: The case involved a conflict between the central and state
governments over legislative powers concerning the regulation of land
reforms.

▪ Judgment: The Supreme Court ruled in favor of the Central

Government, asserting that certain matters, particularly related to
national interests, take precedence over state interests in the Indian
federal system.

▪ Significance: The decision highlighted the unequal balance between

the powers of the central and state governments in India’s quasi-federal
structure.

Comparison of USA and India Federalism:

1. Nature of Federalism:

o USA: Dual Federalism, with a strict division of powers between the federal
and state governments.
 o India: Quasi-Federal, with a strong central government that holds significant
authority over the states, especially in matters of national importance.

2. Powers and Autonomy of States:

o USA: States enjoy considerable autonomy and have powers that are not
explicitly granted to the federal government.

o India: States are less autonomous due to the central government’s dominance
and the provisions of the Union List, which grants the central government
extensive powers.

3. Judicial Oversight:

o USA: The judiciary plays a significant role in interpreting the Constitution and
resolving conflicts between federal and state laws (e.g., through judicial
review).

o India: The judiciary also has an important role in resolving disputes between
the central and state governments, although the central government’s power
often prevails in cases of conflict.

Conclusion:

Both the USA and India have federal systems, but they differ significantly in their structure
and the balance of power between the central and state governments. US federalism follows a
more dual federalism model with a clear separation of powers, while Indian federalism is
quasi-federal, with a stronger central government. Judicial decisions in both countries, such
as McCulloch v. Maryland and S.R. Bommai, have played pivotal roles in defining the scope
of federalism and the relationship between federal and state authorities.

UNIT-III: Public Interest Litigation – US, India

a) Public Interest Litigation (PIL) Movement and Independence of Judiciary

Public Interest Litigation (PIL) has emerged as a powerful legal tool for promoting social
justice, human rights, and public welfare. It allows individuals or organizations to approach the
courts on behalf of the public or disadvantaged groups, even if they are not directly affected by
the issue at hand. The PIL movement has had a profound impact on both India and the United
States, with significant developments and landmark cases that highlight its influence on the
legal system and the relationship between the judiciary and the state.

PIL Movement in India:

PIL in India gained prominence in the late 1970s as a means of addressing social justice issues,
particularly for marginalized and underprivileged sections of society. The Indian judiciary,
particularly the Supreme Court, played an instrumental role in fostering the PIL movement
by expanding the scope of Article 32 of the Constitution of India, which grants the right to
approach the Supreme Court for the enforcement of fundamental rights.

1. Key Features of PIL in India:

o Access to Justice for the Marginalized:

PIL enables those without the means to approach the courts (such as
marginalized communities, prisoners, or environmental activists) to file
petitions for the protection of public interests and fundamental rights.

o Judicial Activism:
The judiciary in India, particularly in the 1980s and 1990s, has adopted an
activist approach, interpreting the Constitution expansively to promote rights
such as the right to life, the right to environment, and the right to information.
PIL has become an avenue for judicial intervention in matters of public policy
and administration.

o Broadening of Locus Standi:

The traditional requirement that a person must have a direct stake in a case
(locus standi) has been relaxed in PIL, allowing public-spirited individuals or
organizations to file petitions on behalf of others.

2. Landmark Case in India:

o Hussainara Khatoon v. State of Bihar (1979):

▪ Issue: The case addressed the issue of undertrial prisoners who were
held in jail for extended periods without trial, violating their
fundamental right to a speedy trial.

▪ Judgment: The Supreme Court, in a pioneering judgment, recognized

the importance of social justice and used PIL to highlight the plight of
 undertrial prisoners in Bihar. The Court ordered the release of thousands
of prisoners who had been languishing in jail without trial for long
periods.

▪ Significance: This case marked the beginning of the PIL movement

in India. It emphasized that PIL could be used to address violations of
fundamental rights, particularly the right to personal liberty and the right
to speedy justice. The case also expanded the scope of judicial
intervention in matters of public interest, illustrating the role of the
judiciary in ensuring social justice and the protection of human rights.

3. PIL and the Role of the Judiciary:

o PIL has enabled the judiciary to take proactive steps in addressing issues such
as pollution, environmental degradation, workers' rights, human rights
violations, and prison reforms.

o The Indian judiciary's intervention in PIL cases has led to significant policy
changes and legislative reforms, thus making PIL a crucial tool for addressing
social and legal inequalities.

PIL Movement in the United States:

The United States also has a robust tradition of judicial activism, although the concept of PIL
is less formalized than in India. In the US, citizens often file lawsuits under civil rights laws
or environmental statutes to address grievances that affect the broader public. The concept of
citizens' suits has allowed ordinary people or organizations to challenge government actions
or private practices that violate public laws or constitutional rights.

1. Key Features of PIL in the US:

o Environmental and Civil Rights Cases:

Citizens’ suits are commonly used in environmental law, civil rights law, and
constitutional law. In these cases, individuals or organizations can sue on
behalf of affected communities or the public to challenge laws or government
actions that are deemed harmful or unconstitutional.

o Class Action Lawsuits:

Citizens' suits often take the form of class actions, where a single plaintiff
represents a larger group of affected individuals. This allows collective
grievances to be addressed in court, particularly when individuals may not
have the means or capacity to litigate individually.
 o Judicial Review of Public Policies:
Courts in the US have used PIL-type mechanisms to review and challenge
governmental policies, especially in areas such as civil rights, healthcare, and
environmental protection.

2. Landmark Case in the US:

o Massachusetts v. Environmental Protection Agency (2007):

▪ Issue: The state of Massachusetts, along with other petitioners,

challenged the Environmental Protection Agency’s (EPA) decision
not to regulate greenhouse gas emissions from new cars under the Clean
Air Act.

▪ Judgment: The US Supreme Court ruled that the EPA had the authority
to regulate greenhouse gases and that it had not provided adequate
justification for its failure to do so.

▪ Significance: This case exemplified the use of PIL-like mechanisms

(citizen suits) in the US, where states and organizations can challenge
federal regulatory decisions in public interest matters, such as
environmental protection. The case underscored the role of the judiciary
in holding the government accountable to environmental and public
health laws.

Comparison of PIL in India and the US:

1. Initiation of PIL:

o India: PIL is a judicial innovation that empowers courts to address public

welfare and social justice issues, even if the petitioner has no direct interest in
the matter.

o US: Citizens’ suits or class actions in the US serve a similar purpose but are
more grounded in specific statutory provisions, such as civil rights or
environmental laws.

2. Judicial Activism:

o India: Indian courts have been proactive in expanding the scope of PIL to
address a broad range of social issues, from human rights to environmental
protection.
 o US: While US courts have been active in protecting civil rights and
environmental laws, the use of PIL-like mechanisms is more structured through
statutory frameworks.

3. Locus Standi:

o India: The traditional rule of locus standi has been relaxed in PIL, allowing
any public-spirited person to approach the courts.

o US: In the US, citizens' suits and class actions are more formally structured, and
standing requirements are still in place, though they are sometimes broadened
in public interest cases.

Conclusion:

The PIL movement in India and citizens' suits in the United States have played crucial roles
in ensuring public accountability, promoting social justice, and protecting human rights. Both
systems have empowered individuals and organizations to challenge laws or government
actions that harm public welfare. However, while India’s PIL is more expansive and judicially
driven, the US relies more on statutory provisions such as environmental and civil rights laws
to facilitate public interest litigation. Despite these differences, both systems underscore the
importance of judicial independence and activism in ensuring that the rule of law serves the
needs of society.

b) Judicial Activism

Definition:

Judicial activism refers to the proactive role of the judiciary in interpreting and expanding the
law to promote justice, protect fundamental rights, and address social issues. In judicial
activism, courts are not passive interpreters of the law but take an active role in shaping public
policy by making decisions that impact society, especially when other branches of government
are unable or unwilling to act. This approach is often seen when the judiciary interprets laws
expansively, sometimes going beyond the literal text of legislation to address emerging issues
or injustices.

Judicial activism can sometimes lead to the creation of new legal doctrines or guidelines,
particularly when the existing laws are seen as inadequate or outdated in addressing
contemporary social challenges. It also involves the judiciary stepping in to check executive or
legislative actions that may violate constitutional principles or fundamental rights.
Indian Examples of Judicial Activism:

1. Maneka Gandhi v. Union of India (1978):

o Issue: The case dealt with the scope of the Right to Life under Article 21 of the
Indian Constitution. Maneka Gandhi challenged the government’s decision to
impound her passport, arguing that it violated her right to personal liberty.

o Judgment: The Supreme Court expanded the interpretation of Article 21

(Right to Life and Personal Liberty) beyond its literal meaning. The Court ruled
that the Right to Life includes the right to live with dignity, and any procedure
that deprives an individual of their rights must be "just, fair, and reasonable,"
not arbitrary.

o Significance: This case marked a landmark expansion of the right to life and
personal liberty. The decision also emphasized the need for laws and
government actions to comply with the principles of natural justice and due
process. It is a classic example of judicial activism, where the judiciary
proactively shaped the interpretation of a fundamental right, leading to more
expansive protections for citizens.

2. Vishaka v. State of Rajasthan (1997):

o Issue: This case concerned the sexual harassment of women at the workplace,
a growing issue in India that lacked specific legal provisions at the time.

o Judgment: In the absence of appropriate legislation to address workplace

sexual harassment, the Supreme Court took judicial notice of the issue and laid
down guidelines for the prevention of sexual harassment at the workplace. The
Court invoked the provisions of Article 15 (prohibition of discrimination on
grounds of sex) and Article 21 (Right to Life and Personal Liberty) to ensure
a safe working environment for women.

o Significance: The Vishaka Guidelines laid the foundation for later legal
reforms in India. These guidelines were a precursor to the Sexual Harassment
of Women at Workplace (Prevention, Prohibition, and Redressal) Act,
2013, which formally addressed the issue of workplace harassment. This case
is an example of judicial activism where the Court filled a legislative gap by
creating rules to protect women from sexual harassment in the workplace.

3. Other Indian Examples:

o M.C. Mehta v. Union of India (1987): In a case involving environmental

pollution by industries, the Court adopted a proactive role in enforcing the
polluter pays principle and ensuring that companies paid for the damage
caused to the environment. The case is a prime example of the judiciary
 intervening in the absence of adequate legislative action to protect the
environment.

o Public Interest Litigation (PIL) Movement: The judiciary in India has

actively used PIL to address a wide range of issues related to human rights,
environmental protection, and social justice, such as in the Hussainara
Khatoon case (addressing the rights of undertrial prisoners) and Vellore
Citizens Welfare Forum v. Union of India (1996), which addressed the issue
of tanneries polluting the environment.

US Example of Judicial Activism:

1. Brown v. Board of Education (1954):

o Issue: This landmark case challenged the doctrine of "separate but equal" that
had been established in the earlier case of Plessy v. Ferguson (1896), which
allowed racial segregation in public schools, as long as the facilities were
"equal."

o Judgment: The U.S. Supreme Court, under Chief Justice Earl Warren, ruled
that racial segregation in public schools was unconstitutional, as it violated the
Equal Protection Clause of the 14th Amendment. The Court famously
declared that "separate educational facilities are inherently unequal."

o Significance: This was a key moment in the Civil Rights Movement in the
United States. The decision marked a radical departure from earlier precedents
and was a clear example of judicial activism, where the Court proactively
interpreted the Constitution to promote social change and civil rights. The ruling
led to the desegregation of schools across the United States and served as a
catalyst for broader civil rights reforms.

2. Other US Examples:

o Roe v. Wade (1973): The U.S. Supreme Court’s decision to legalize abortion
by interpreting the right to privacy in the Constitution is another example of
judicial activism. The Court ruled that a woman’s right to choose an abortion
was constitutionally protected, even though no explicit right to abortion was
mentioned in the Constitution.

o Miranda v. Arizona (1966): The Court held that individuals in police custody
must be informed of their rights, including the right to remain silent and the
right to an attorney, before being questioned. This decision expanded the
protection of individual rights during police interrogation, reinforcing the notion
of due process.
Key Features of Judicial Activism:

1. Expanding the Scope of Fundamental Rights:

o Judicial activism often involves a broad interpretation of constitutional rights

to provide greater protection to individuals, as seen in cases like Maneka
Gandhi v. Union of India, where the Right to Life was interpreted
expansively.

2. Filling Gaps in Legislation:

o Courts often step in when there is no specific law or when existing laws are
insufficient to address social issues, such as in the Vishaka v. State of
Rajasthan case, where the Court laid down guidelines to address workplace
sexual harassment in the absence of legislation.

3. Promoting Social Justice:

o Judicial activism is often linked with promoting social justice by safeguarding

the rights of vulnerable sections of society, addressing issues like
environmental protection, human rights, and prison reforms.

4. Balancing Powers Between the Judiciary and Other Branches:

o Through judicial activism, courts can hold other branches of government

accountable, ensuring that executive and legislative actions are in accordance
with the Constitution. This is particularly evident in cases involving PIL or
when government policies are challenged for violating constitutional principles.

Criticism of Judicial Activism:

• Judicial Overreach: Critics argue that judicial activism can lead to judicial
overreach, where the judiciary exceeds its mandate and encroaches upon the powers
of the legislature and executive, potentially upsetting the balance of powers.

• Erosion of Democratic Principles: Some believe that judicial activism can undermine
democratic principles by making decisions that should be left to the elected branches
of government, particularly when courts impose social policies or create new laws.

• Lack of Accountability: Judicial activism can sometimes lack the same level of
accountability as legislative or executive actions, as judges are not elected and may be
perceived as imposing their personal views on the public.
Conclusion:

Judicial activism has played a significant role in advancing social justice, protecting
fundamental rights, and shaping public policy in both India and the United States. While it has
led to crucial legal and social reforms, it has also sparked debates about the proper role of the
judiciary in a democratic system. Nonetheless, judicial activism remains a powerful tool for
courts to ensure justice and equality, especially when other branches of government fail to act
or when legal frameworks are insufficient to address evolving social issues.

c) Judicial Accountability

Need for Judicial Accountability

Judicial accountability is essential to ensure that the judiciary operates with transparency,
integrity, and impartiality. As one of the core pillars of democracy, the judiciary plays a
significant role in upholding the Constitution, safeguarding rights, and ensuring justice.
However, with such immense power and influence, it is crucial to have mechanisms in place
that ensure judges are held accountable for their actions.

1. Transparency in Judicial Functioning:

Accountability ensures that judicial decisions are made based on law and facts, rather
than personal biases or interests. This is vital for maintaining public trust in the legal
system. Transparency is also necessary to demonstrate that the judiciary is serving the
public interest rather than its own.

2. Preventing Judicial Overreach or Corruption:

Without proper accountability, there is a risk of judicial overreach, where courts
might encroach on the functions of the legislature or executive. Furthermore,
unchecked power can lead to corruption or misconduct within the judiciary. Judicial
accountability mechanisms aim to prevent such abuses and ensure that judges adhere
to ethical and legal standards.

Mechanisms of Judicial Accountability

To ensure that judges perform their duties impartially and ethically, various accountability
mechanisms are in place:

1. Impeachment Process:

o In India, the Constitution (Article 124) provides for the removal of a judge of
the Supreme Court or High Court through impeachment for proven
 misbehaviour or incapacity. This process can be initiated in Parliament, with
a two-thirds majority required in both houses for impeachment.

o While the process is theoretically designed to ensure that judges remain

accountable, it is often criticized for its complexity and the political nature of
impeachment proceedings. The process has never been successfully
implemented against a sitting judge in India.

2. Public Disclosure of Assets:

o Judges are required to declare their assets publicly to promote transparency. In

India, this requirement is part of the Judicial Standards and Accountability
Bill, which aims to enhance transparency in the functioning of the judiciary.

o The Supreme Court and High Court judges are expected to disclose their
assets to the public, ensuring that they do not have undisclosed or ill-gotten
wealth that might create conflicts of interest or indicate corruption.

3. Code of Conduct for Judges:

o In India, the Supreme Court has developed a Code of Conduct for Judges,
which outlines the ethical standards and behavior expected from judges. The
code is meant to ensure that judges maintain independence, integrity, and
impartiality in their judicial duties.

o Breaches of the Code of Conduct, though not always leading to removal, can be
grounds for disciplinary action, ensuring that judges are held accountable for
their conduct.

4. Independent Judicial Appointments Commission (IJAC):

o The creation of an Independent Judicial Appointments Commission was a

significant step towards judicial accountability in India. The commission was
established to make the process of appointing judges more transparent and free
from political influence.

o However, this system has faced criticism, and there have been debates on
whether the executive and legislature should have a more active role in judicial
appointments.

5. Public Scrutiny and Media Role:

o Media and public scrutiny play a crucial role in holding the judiciary
accountable. Public opinion and media reports on judicial conduct can pressure
the judiciary to maintain ethical standards and avoid corruption. Cases where
judges face public criticism, such as the Justice C.S. Karnan case, demonstrate
the need for accountability in the judicial system.
Case Law: Justice C.S. Karnan Case

The case of Justice C.S. Karnan, a former judge of the Calcutta High Court, is one of the
most notable instances in India that highlighted the need for judicial accountability.

• Background:
Justice Karnan, who was elevated to the Supreme Court after serving as a judge of the
Calcutta High Court, became embroiled in controversy due to allegations of
misconduct, corruption, and judicial overreach. In 2017, the Supreme Court held him
in contempt of court for passing orders against his colleagues and for making
derogatory remarks about them.

• Contempt of Court:
Justice Karnan was accused of passing orders that were beyond his jurisdiction and
making inappropriate public statements. Despite the Supreme Court’s repeated
warnings, he continued to defy its authority. The Court held him in contempt, an
unprecedented move against a sitting judge.

• Impeachment and Removal:

Following his contempt conviction, there were calls for his impeachment and removal
from office. However, the process faced difficulties, as impeachment requires
political consensus, and the Rajya Sabha did not take immediate action.

• Significance:
The Justice C.S. Karnan case brought to the forefront serious issues regarding judicial
accountability and the difficulty in holding judges accountable for their actions. The
case demonstrated the gaps in the impeachment process and the challenges in taking
action against errant judges. It emphasized the need for a more robust framework to
address judicial misconduct and prevent instances of judicial overreach and corruption.

Significance of Judicial Accountability

1. Ensures Judicial Integrity:

Judicial accountability mechanisms help maintain the integrity of the judicial system.
When judges are held accountable for their actions, it reinforces public confidence in
the legal system.

2. Prevents Abuse of Power:

Accountability ensures that the judiciary does not abuse its power. Judges are
expected to exercise their powers responsibly, and accountability mechanisms prevent
them from overstepping their constitutional role.
 3. Maintains Public Trust in the Judiciary:
A transparent judicial system is crucial for upholding the rule of law and protecting
the rights of citizens. Judicial accountability helps maintain the public's trust in the
judiciary by ensuring that judges are acting in the best interest of justice.

4. Checks and Balances in Governance:

Judicial accountability is essential to maintaining the system of checks and balances
in a democracy. It ensures that the judiciary remains independent but is also
answerable for its actions, preventing any branch of government from having
unchecked power.

Challenges to Judicial Accountability

1. Lack of Political Will for Impeachment:

The process of impeachment is often criticized for being politically motivated, and the
difficulty of securing a two-thirds majority in Parliament makes it challenging to
remove errant judges.

2. Limited Transparency in Judicial Appointments:

While the Independent Judicial Appointments Commission was intended to make
judicial appointments more transparent, there are still concerns about the lack of
public accountability in the appointment process.

3. Weak Disciplinary Mechanisms:

There are often limited mechanisms for disciplining judges who violate the Code of
Conduct or engage in unethical behavior. This gap in accountability mechanisms
allows for unchecked misconduct.

4. Resistance from within the Judiciary:

The judiciary itself has sometimes resisted external mechanisms for accountability,
arguing that it undermines judicial independence. This resistance can delay necessary
reforms and create a lack of consensus on how best to ensure accountability.

Conclusion

Judicial accountability is crucial for upholding the integrity of the judiciary and maintaining
public confidence in the legal system. While India has made strides in implementing various
accountability mechanisms, there are still significant challenges to ensuring that judges are held
fully accountable for their actions. The Justice C.S. Karnan case served as a stark reminder
of the need for more robust and transparent systems of judicial accountability. Moving forward,
it is essential to balance the independence of the judiciary with effective accountability
measures to preserve the credibility of the legal system.
 UNIT-IV: Ombudsman

a) Ombudsman in Scandinavian Countries

Origin

The Ombudsman institution originated in Sweden in 1809 as part of the Swedish Constitution.
It was established to act as a safeguard for citizens against maladministration by public
authorities. The idea behind the ombudsman was to ensure that government officials and
agencies were held accountable for their actions and decisions, especially when those actions
might infringe on citizens' rights or lead to injustices. The Swedish Ombudsman was
empowered to investigate complaints, issue recommendations, and ensure that government
bodies complied with the law in a fair and just manner. This model was later adopted by many
other Scandinavian countries and around the world.

Role and Functions

The ombudsman is an independent institution tasked with ensuring that public authorities and
officials adhere to legal and ethical standards. Their key roles include:

1. Investigating Complaints:

o The ombudsman receives and investigates complaints from citizens who feel
they have been treated unjustly by public officials or government bodies.

o They can look into various issues, such as corruption, administrative

inefficiency, abuse of power, or violation of citizens' rights.

o Ombudsmen in Scandinavian countries typically have the authority to request

information, review documents, and question officials as part of their
investigative powers.

2. Impartial Resolution of Complaints:

o The ombudsman acts impartially, meaning they do not favor the government or
the citizen making the complaint.

o Once the investigation is complete, the ombudsman can issue recommendations

for corrective actions, which could involve disciplinary measures, policy
reforms, or legal changes. While their decisions are not usually legally binding,
they carry significant weight in shaping government behavior.
 o In some cases, the ombudsman may also refer cases to the judiciary or other
authorities for further action if necessary.

3. Ensuring Accountability of Public Officials:

o By investigating citizen complaints and holding public officials accountable,

the ombudsman ensures that public servants follow the law and uphold ethical
standards.

o This enhances transparency and helps maintain public trust in government

institutions.

Examples in Scandinavian Countries

1. Sweden:

o Sweden’s Ombudsman system is one of the oldest and most influential. The
Justitieombudsman (JO), or Parliamentary Ombudsman, investigates
administrative actions and ensures that citizens' rights are respected by public
authorities.

o The JO can scrutinize any action or decision by government agencies, ensuring

the implementation of laws and regulations that promote fairness and
transparency.

2. Norway:

o Norway established its own ombudsman system, known as the

Sivilombudsmannen, which investigates complaints regarding the actions of
public authorities and administrative bodies.

o Similar to Sweden, the Norwegian Ombudsman acts independently from the

government and has significant powers to look into cases of injustice,
inefficiency, or violations of law.

3. Finland:

o Finland’s Ombudsman system was introduced in 1919, and its role is largely
modeled after Sweden's. The Parliamentary Ombudsman in Finland
investigates citizens' complaints against public authorities and ensures that laws
and regulations are followed.

o The Finnish Ombudsman is also involved in human rights issues, ensuring the
protection of civil liberties and individual freedoms.
Significance and Impact

The ombudsman institution in Scandinavian countries has had a profound impact on improving
governance by promoting transparency, accountability, and citizen engagement. It has:

• Strengthened democracy: By ensuring that the government remains accountable to its

people, the ombudsman enhances democratic processes. Citizens can rely on an
independent body to address grievances against state actions.

• Promoted ethical governance: The ombudsman helps prevent corruption and abuses
of power by holding public officials accountable for their actions, thereby fostering a
culture of responsibility and ethical governance.

• Improved public trust: Citizens are more likely to trust government institutions when
they know that there is an impartial body capable of addressing their complaints and
ensuring that their rights are respected.

Conclusion

The Ombudsman institution in Scandinavian countries serves as an essential mechanism for

ensuring that government actions are transparent, just, and accountable to the people.
Originating in Sweden in 1809, it has since been adopted in several other nations, shaping
public administration practices worldwide. By investigating complaints, recommending
corrective actions, and promoting ethical governance, the ombudsman plays a crucial role in
safeguarding the rights of citizens and enhancing the democratic process.

b) International Scenario – Common Law and Civil Law

Common Law

The Common Law system, which originated in England, relies heavily on judicial precedents
and case law, where past judicial decisions play a critical role in shaping future legal outcomes.
It is characterized by the principle of stare decisis (to stand by things decided), meaning that
judges look to past decisions when making rulings. In Common Law systems, the judiciary
often has the authority to create legal rules through its judgments. A key feature of Common
Law systems is the role of the Ombudsman in holding public services accountable.

1. Parliamentary Commissioner for Administration (UK):

o In the United Kingdom, the Parliamentary Commissioner for

Administration, also known as the Ombudsman, investigates complaints from
citizens regarding maladministration in government departments and public
services.
 o Established in 1967, the role of the UK Ombudsman is to ensure that the
government’s actions comply with established procedures and the law. It has
the power to investigate whether public services have been provided fairly and
impartially, ensuring that citizens' grievances are addressed properly.

o The Parliamentary Commissioner for Administration can investigate

complaints about the conduct of government bodies, such as the National
Health Service (NHS), local authorities, and other government departments,
but it cannot overturn decisions. Instead, it makes recommendations, which may
include apologies, compensation, or changes in government procedures.

Civil Law

The Civil Law system, which has its origins in Roman law and is used in many European
countries, including France, is based on written legal codes and statutes. Judicial decisions in
Civil Law systems are typically less influential than in Common Law systems because the
focus is on applying codified laws rather than on case law. In many Civil Law jurisdictions, an
Ombudsman or similar body exists to handle grievances against public officials and ensure
accountability.

1. Médiateur de la République (France):

o In France, the Médiateur de la République (the French Ombudsman) was

established in 1973 to investigate complaints from citizens against public
authorities, government actions, and public services.

o The Médiateur de la République handles cases involving administrative

inefficiencies, violation of rights, and unfair treatment by public officials.
Citizens who feel wronged by a public service or official can submit complaints
to the Médiateur, who will review the case impartially.

o The French Ombudsman is not a judicial body and does not have the power to
make legally binding decisions. Instead, it recommends changes or
interventions. The Médiateur works to ensure that the public administration
follows proper procedures, acts in good faith, and respects citizens’ rights.

o The Médiateur de la République is an independent institution designed to

bridge the gap between citizens and the government, ensuring that the
government listens to its people and resolves their grievances efficiently and
fairly.

Key Differences in Common Law and Civil Law Systems

• Legal Sources:
 o In Common Law systems, legal decisions are primarily based on judicial
precedents. In contrast, Civil Law systems rely on written codes and statutes
to define legal principles and procedures.

• Role of Judges:

o In Common Law, judges play a significant role in shaping the law through case
law, while in Civil Law, judges are more focused on applying established codes
and interpreting written law rather than creating law.

• Ombudsman Powers:

o In Common Law countries like the UK, the Parliamentary Commissioner for
Administration primarily investigates complaints against public bodies and
recommends actions. In Civil Law countries like France, the Médiateur de la
République also investigates complaints but does not have judicial powers and
provides recommendations for administrative corrections.

Conclusion

Both Common Law and Civil Law systems have institutions in place to ensure that
government actions are scrutinized and that citizens' grievances are heard. The UK’s
Parliamentary Commissioner for Administration and France’s Médiateur de la
République serve similar functions in their respective countries but operate within the context
of their respective legal systems. While the Common Law system places greater emphasis on
judicial precedents and case law, the Civil Law system relies on codified laws and the role of
an impartial mediator. Both systems highlight the importance of an independent institution that
can address complaints and promote accountability in government administration.

c) Indian Scenario

i) Lokpal:

1. Establishment and Purpose:

o The Lokpal was established under the Lokpal and Lokayuktas Act, 2013,
following years of demand for an independent body to address corruption in
public offices. The creation of the Lokpal was heavily influenced by the Anna
Hazare-led anti-corruption movement that gained national attention in 2011,
leading to widespread public support for an effective anti-corruption body.

2. Functionality and Scope:

 o The Lokpal is a national-level institution designed to investigate allegations of
corruption against public officials, particularly those in high-ranking positions,
such as ministers, members of parliament, and bureaucrats.

o The Lokpal has the authority to probe corruption complaints against public
servants, including allegations involving bribery, misuse of office, and abuse
of power. It has the power to take suo-motu action and conduct investigations
without the need for a formal complaint.

o The body is empowered to act with independence, and its findings can result in
the filing of criminal charges, disciplinary actions, and, in severe cases,
dismissal from office.

3. Impact and Challenges:

o The establishment of the Lokpal was a significant step in addressing corruption

at the highest levels of government. However, its implementation has faced
challenges, including delays in the appointment of members and a lack of
operational effectiveness in its early years.

o Despite these challenges, the Lokpal remains an important institution in India's

efforts to combat corruption and ensure accountability in government
functioning.

4. Example of Influence:

o The enactment of the Lokpal and Lokayuktas Act was influenced by Anna
Hazare's fast-unto-death protests in 2011, which demanded stronger anti-
corruption laws and the creation of a strong, independent Lokpal. This
movement galvanized public opinion and led to political pressure for a
legislative solution.

ii) Lokayukta:

1. Establishment and Role:

o The Lokayukta is the state-level Ombudsman responsible for investigating

corruption complaints and ensuring accountability among public officials at the
state level. While the Lokpal handles national-level complaints, the Lokayukta
deals with corruption allegations against state government officials, including
bureaucrats, ministers, and other public servants at the state level.

o The creation of the Lokayukta was driven by the need for a mechanism that
could address corruption and maladministration at the state level, ensuring that
citizens have recourse to justice even against local government officials.

2. Functionality and Jurisdiction:

 o Lokayuktas function similarly to the Lokpal but with jurisdiction restricted to
state matters. They investigate complaints related to corruption, misconduct,
and maladministration, providing a mechanism for citizens to hold local
government officials accountable.

o The Lokayukta can recommend disciplinary actions, criminal prosecution, and

other remedies, but it does not have the authority to directly prosecute or take
legal action. Its role is primarily advisory and investigative.

3. Example of Influence:

o The Karnataka Lokayukta has played a pivotal role in exposing corruption

within the state government. One of the most notable cases was the mining
scandal, where the Lokayukta helped uncover illegal mining operations and led
to the prosecution of high-ranking state officials.

o The Karnataka Lokayukta was instrumental in exposing widespread corruption,

including allegations against politicians, bureaucrats, and businessmen
involved in illegal activities. Its work contributed to significant reforms and
efforts to curb corruption in the state.

4. Challenges and Criticisms:

o Lokayuktas across various states have faced challenges similar to the Lokpal in
terms of resources, jurisdictional issues, and political resistance. In some
states, Lokayuktas have been ineffective due to lack of independence, political
interference, or the absence of adequate funding.

o The effectiveness of Lokayuktas often depends on the political will of the state
government and the support from the judiciary in implementing
recommendations and ensuring accountability.

Key Differences Between Lokpal and Lokayukta:

• Jurisdiction:

o Lokpal functions at the national level, dealing with corruption allegations

against central government officials.

o Lokayukta operates at the state level, addressing corruption within the state
government and among state-level officials.

• Scope:
 o The Lokpal is primarily concerned with tackling corruption at the national
level, particularly in the central government, while the Lokayukta
investigates corruption cases within the state government and public sector
undertakings.

• Influence and Effectiveness:

o Both institutions aim to ensure transparency and accountability, but the Lokpal
is a more centralized and independent body, whereas the Lokayukta varies
in strength and effectiveness depending on the state. Some states have stronger
Lokayuktas, while others face challenges in implementation.

Conclusion:

Both the Lokpal and Lokayukta play critical roles in ensuring accountability and transparency
within India's government. The Lokpal provides a national mechanism to investigate
corruption at the highest levels, while Lokayukta addresses similar concerns at the state level.
Despite challenges, both institutions have proven to be important tools in fighting corruption
and promoting good governance in India. Their continued success depends on their
independence, political support, and operational effectiveness.