RLR Vol 3 Issue II

SPECIAL ISSUE
ON CONSTITUTIONAL GOVERNANCE
PUBLISHED BIANNUALY
VOLUME: Three
Second Issue
ROSTRUMs
ISSUE: T WO
YEAR: 2016
LAW REVIEW ISSN: 2321 - 3787
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ROSTRUMs LAW REVIEW
Volume : III Issue: II
Two - December - 2016
Mode of Citation: RLR (2) 2016
Editorial Advisor
Prof. (Dr.) G. P. Tripathi
Director, MATS Law School, Raipur, Chhattisgarh, India
Guest Editor
Dr. Yogesh Pratap Singh.
Deputy Registrar
Supreme Court of India
New Delhi, India
General Editor
Dr. Debasis Poddar
Assistant Professor of Law
National University of Study and Research in Law,
Ranchi, Jharkhand, India
Managing Editor
Anurag Parihar
CEO, Alkemia Legal Education Ventures Pvt. Ltd.
Associate Editor
Aounkar Anand
COO, Alkemia Legal Education Ventures Pvt. Ltd.
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Rostrums Law Review
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Volume III Issue II
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Rostrums Law Review
ISSN: 2321 3787
Volume III Issue II
From the Desk of Guest Editor
Oliver Wendell Holmes, Jr. once noted that the life of the law has
not been logic, it has been experience. Though he was talking of
common law, this is true for the study of Constitutional Law. The
Constitutional law embodies the story of a nation's development
through many centuries, and it cannot be dealt with as if it contained only the axioms and
corollaries of a book of mathematics. Therefore, there is need to blend the academicians
approach as well as understanding of bar and bench in order to make the study of
constitutional law more relevant and adjust it to the realities of new legal order beyond the
traditional view of constitutional law as a discrete subject. Rostrums Law Review furthers
this mission by providing a forum of legal scholarship not only on legal issues but also on
other disciplines that present important implications for the legal community.
This special issue captures thought-provoking articles by Prof. Krishan Mahajan, Additional
Registrar, Supreme Court of India, Dr. Afroz Alam, Head, Department of Political Science,
MANUU Hyderabad, Dr. Jasmit Gulati, Senior Assistant Professor, Punjab University.
These authors explore some of the very fundamental issues of constitutional governance
such as judicial office as public service, Decline of Parliament and Constitutional
Commitment to International Obligations respectively. Dr. Nachiketa Mittal and Ms. Amrita
Singhs work on Access to Justice, Dr. Rangin Pallav Tripathi on Appointment of Judges, Mr.
Parikshet Sirohi on Right to Information Act, Mr. Ayaz Ahmad on Environmentalism, Mr.
Arpan Acharyas work on changing dimensions of State and Mr. Sathish Padhis piece on the
writ jurisdiction vis--vis stock exchanges in India make momentous contribution in the
existing legal literature.
I, sincerely thank all the inspiring authors who contributed to this volume. In keeping with
our efforts to make this journal a truly high quality research platform, we look forward to
your candid and critical feedback that will enable us to develop the future editions.
With much enthusiasm and pride, I present to you this issue.
Dr. Yogesh Pratap Singh

Deputy Registrar
Supreme Court of India
Rostrums Law Review
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Volume III Issue II
Table of Contents
1. Judicial Office as Public Service: Need for Cultural Research & Innovation
Krishan Mahajan 1
2. Decline of Parliamentary Governance: Indian Scenario (1952-2014)

Afroz Alam 12
3. The Endangered Institution (of Governor): Problems and Prospects

Yogesh Pratap Singh 43
4. Constitutional Commitment to International Obligations

Jasmeet Gulati 76
5. Discourse on Access to Justice in India & Rise of Gram Nyayalayas at the Grass-Root
Nachiketa Mittal & Amrita Singh 91
6. Appointment of the Judges of the High Court in Australia: A Critique

Rangin Pallav Tripathy 116
7. An Evaluation of the Working of the Right to Information Legislation in Contemporary

Democracy
Parikshet Sirohi 128
8. Environment Protection Authority, National Green Tribunal and Environmental

Governance in India
Ayaz Ahmad 154
9. Indian Judiciary and the State in Article 12 of the Constitution: Can there be an
Essential State?
Arpan Acharya 178
10. Writ Jurisdiction and Stock Exchanges in India

Satish Padhi 199
11. Note on Contributors 216
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Judicial Office as Public Service:

Need for Cultural Research & Innovation
Krishan Mahajan*
ABSTRACT
There is a need to look at the judicial system in India on the basis of

the fundamental rights of socio-economic justice in the context of
fundamental right to culture given in Article 29 of the Constitution of
India. This alone will make the judiciary into a Constitutional
Institution of public service and take it out from the perennial
controversy of arrears-s judge strength. The district courts which are
the grass-root institution for formal justice need to be converted into
social multipliers, public service centres and innovation centres rooted
in the culture of the people within their respective territorial
jurisdictions. The immediate need is for in situ research units located
in the district courts themselves. For this leadership has to come from
the High Courts which control and superintend the district courts and
from the collegium of the Supreme Court. The question is whether
judges at the commanding heights of the judiciary have the conscience
and the will to do this?
Keywords: Judiciary, Judicial System, Public Service, Research,

Innovation, Public Service etc.
I. Introduction
The debate on the judiciary in India revolves around number of judges,

infrastructure, introduction of technology, pendency, disposals, arrears and treating
some of the court buildings as heritage buildings. The manner of appointment of
judges and judicial conduct is an episodic topic involving shades of judicial
independence.i The Supreme Court of India makes declarations that the access to
justice is a fundamental right, without enforcing the same despite its specific
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enforcement duty under Article 32 of the Constitution of India.ii Reports of the Law
Commission of India and by the Supreme Court itself on many of these issues are
aplenty.iii But the courts are not discussed as part of the overall local to national
culture of dispute settlement that has always existed in India. A stark example of this
is arbitration, wherein most of the business and family disputes are settled by the
traditional indigenous mechanisms not covered by any statute or the formal legal
system run in the English language.iv The contribution of this evolved indigenous
system in preventing the formal systems from being engulfed by a gale of litigation is
not even recognized. The result is that even statutory experiments like Gram
Nyayalayas fail in their objective of delivering speedy and inexpensive justice to
72.2% rural citizens of Indias 6,38000 villages. The study by the Indian Law
Institute (ILI) of the functioning of Gram Nyayalayas in Madhya Pradesh and
Rajasthan concludes that the Gram Nyayalayas Act 2008, have not achieved any of
the objectives of the Act.v The failure was due to lack of awareness of the law in the
villages, the use of the normal district judiciary to discharge the functions under the
Act and no proper transport, premises or staff for the urbanized judiciary and
lawyers compelled to travel to the Gram Nyayalayas in the villages.
There is thus a need for cultural innovation and research concerning the courts and
the judiciary for any meaningful debate of access to justice. Judicial independence
does not mean shutting the judicial eye to the culture and the problems of the people
in the territory where the formal court is. This must begin with the district courts, the
admitted foundation of the formal Indian judicial system.
II. Innovation
The minimum desiderata for excellence as a judge are integrity and competence. vi
Without integrity every other attribute is washed out. Without competence, integrity
itself comes under a cloud. But the extra input that needs to be worked upon for
achieving excellence mandates innovation. This is so because the world has
progressed because of the unique human trait of doing things differently, in
howsoever a small measure, to be better------in the quality, manner, pace and time in
which the end product is delivered to satisfy the innate instinct for justice. This can
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be broadly summed up as a cultural way of looking at courts and justice or court

management. The litmus test for this is the satisfaction of the litigants and all those
participating in dispute resolution through the court or through statutory forums
outside the court.
III. Valuing Litigants Time
Quality, pace, manner and time of delivery start with how a judge organizes his time?
There is a unit of time expenditure of a judge's activities within and outside the
court.vii Any innovation concerning court time must necessarily start with the judge
himself. This may require a shift in the thinking process. The shift is to consider your
time in terms of the parties in the dispute resolution process. A judge, who considers
their time to be valuable, will organize his time to add value to the partys value of
their time. This train of thought leads him to apply himself robustly to his case files.
The judge is his own innovator. He finds new ways to master his files for each day
before he goes to the court. This is innovating to increase his own competence vis-a-
vis his files. Associating brilliant law students of local law schools, colleges or
departments is one way of the many ways of travelling a different path to save time
on a file. This bonding need not be limited to the law. If a case demands, then it can
be extended to other departments of knowledge available locally.
IV. Courts as Social Multipliers
Educated trained youngsters become familiar with the courts and the legal education
of senior students of law becomes vocationally relevant. A judge awakens to the need
of areas of knowledge other than the law. Teachers and heads of institutions become
involved with their students participating in the local courts work. The eternal
judicial values of public service through the judicial office come to the fore, as the
judicial office becomes an integrative local force. The judge also learns how to take
the benefit for public good, of local institutions and people while safeguarding the
independence and integrity of the office. The mandatory facility of an office at home,
declared by the Supreme Court in the All India Judges Association case, will be used
more fruitfully. Walking the last mile to judicial excellence starts with the judge and
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the case file itself. No electronic gadgetry yet exists to substitute the study and
mastery of the case file. Hence the innovation of marrying the global public interest
through courts with the local, becomes a multiplier. District courts then can have the
District Gazette relevant to their work. Their libraries can reflect local culture. They
become centres of training of legal translators of local language into English and
vice-versa along with local legal education centres, to trigger local employment. All
this could increase the legal business base of the local Bar.
V. Courts as Public Service Centres
The interaction of the judge with the local institutions and ordinary people makes it
possible to ensure transparency in the court's functioning. The district court for the
majority of the people is the ahlmad (the keeper of files) and the reader. These are
difficult offices for the ordinary citizen to tackle. Their difficult and transactional
attitude becomes less to the extent that the magistrate or the judge is a public person.
People become confident about the court administration and getting their work
concerning a case done by it. The court is perceived as a center of social or public
service relevant to various kinds of suffering.
VI. Ongoing Court Research & Innovation
The foundation of such relevant innovation is constant study and research. Which
step or process in each kind of case takes up the most time, why does that happen,
what can be done to reduce it in consonance with legal and judicial standards, are
questions that need to be constantly answered if the largest number in the largest
number of grassroots courts are to be effectively and efficiently served by the law
through the courts. These courts today are litigation and also, mediation, conciliation
and negotiation centers. For how many litigants the court language is a stumbling
block and the courts places of painful awe?
VII. In Situ Research Units
Law Commission reports concerning the district judiciary (unfortunately called by

our Constitution as the Subordinate Courts) and Supreme Court judgments have
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never referred to the need and necessity of in situ research units in these courts.
Instead a top down approach of management through National Court Management
System, Supreme Court e-committee and a National Judicial Data Grid has been
foisted without any consultation with the district judiciary. This necessitates reading
Entry 11-A in the Concurrent List of the Constitution, Administration of justice,
constitution and organization of all courts, except the Supreme Court and the high
court'' together with Entry 65 in List II, Jurisdiction and powers of all courts, except
the Supreme Court, with respect to any of the matters in List II. A gap between
jurisdiction and powers of district courts concerning subjects mentioned in List II,
which concern all those resident in a State, and the administration of justice,
constitution and organization of courts, creates large problems of infrastructure,
judicial and staff strength not matching the jurisdiction and powers. Central Finance
Commissions allocate funds for various infrastructure, evening and fast track courts,
judicial training programmes through State Judicial Academies but none for in situ
research units in the district courts themselves concerning the number, nature and
time use of litigants in cases divided under each statute that is relevant to a case.
Thus, financial planning for the courts by the Central Government is flawed right at
the outset, in the absence of relevant litigation-litigant data from the subordinate
courts concerning even the cases relating to the Union Government's laws. We have
never heard about the need of such research and planning cells from the Union
Govt's Department of Justice in the Union Ministry of Law &Justice. This makes the
National Policy of Justiceviii For all a mere hallucination.
VIII. Law-Development-Justice Gap
If the litigant -case method of burden on the district courts in terms of the ease of the
litigant-case flow is researched in each district court and then juxtaposed against the
chronic problems of district and development programmes on health, nutrition,
education, and skills in terms of legal entitlements of the population under the
jurisdiction of a district court, a meaningful profile of the law--- development
justice gap would emerge. This gap would give the realistic measure of the number of
courts, judges, staff and infrastructure facilities minimally necessary in the territory
under each of the district courts of a district. The planning, funding and execution of
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a court programme for each district then is not divorced from the human
development index of a district in terms of the vast array of Central and Government
schemes to enable constitutional justice, mandated by the Directive Principles as
fundamental in the governance of the country.ix
For seventy years, we have denied development justice under such schemes through
the district courts to our population which lives in the districts of India. Politicians in
power in the last seventy years have achieved this dubious goal of denial x of
development justice to Indians as mandated by the Directive Principles, the statutory
laws and administrative schemes by the simple device of not enacting a law through
Parliament under Article 32(3) to confer on the district judiciary the power to issue
writs for violation of fundamental rights. Let this method of denial of fundamental
rights to millions of Indians be not reinforced by denying them further access to
district court justice even through the usual civil and criminal law. The district courts
today have the jurisdiction and powers of the pre-independent British legal system to
enforce law, minus independent India's constitutional power to enforce justice based
on fundamental rights. But the political administrative management of
administration of justice'' constitutional power through List III read with Article
246(2) continues to deny the district judiciary to do justice even according to
statutory law.
The absence of the poor in the district courts in terms of their positive claims to
entitlements to legal aid to push such claims of justice, speaks of the distance of the
district courts from people in their territory who deserve development justice. This is
so because the district judge is the head of legal aid in each district. The spasmodic
rush for information every two years or so for the All India Chief Justices Conference
in the Supreme Court, depending on what a Chief Justice of India desires, and that
too limited to pendency, disposal, institution of cases extrapolated to HDI
parameters for assessing judge strength only, is not administration of justice as
required by the Constitution, which postulates social, economic and political justice.
The All India Chief Justices Conference has never thought of having Development
Justice Courts on its agenda. It has generally focused on the arrears judge strength
controversy.
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IX. District Court as an Innovation Centre
The research unit within each district court will become the statistical collection and
analysis unit of the existing dispute settlement mechanisms that people operate
themselves, why they find these more comfortable than the court's litigation cum
ADR approach and the condition of the people under the district court's jurisdiction
especially of vulnerable and helpless sections of village or urban residents. The
district court becomes the suo motu guardian of children, women and others under
its innovation of ensuring justice to all those within its jurisdiction. It also becomes
the collector and protector of the cultures of dispute settlement and ways of life
diversity, so as to give meaning to the neglected area of 'custom or usage', mentioned
in Article 13(3) (a) of the Constitution of India.
X. Two Conditions Precedent
But for such re-engineering of district courts as active deliverers of constitutional

justice there is a need for a public sector in the legal profession and the right of
citizens to be informed of their entitlements.
[a]. All India Lawyers Service
The justice delivery work of the district courts will require an organized body of
lawyers to put up the cases for the court or for its ADR mechanisms of those denied
their entitlements. The Union and State Governments either by themselves or jointly
will have to set up an All India Lawyers Service selected on merit and meant to work
as a dedicated task force in the delivery of entitlements.
[b]. Right to be Informed
To get the support of those who are entitled there is a need to implement the right to
be informed. The government information unit in each district can be made
responsible to ensure this right, failing which, members of the All India Lawyers
Service can step in. This right to be informed is different from the right to know and
the right to information, to the extent that these imply a knowledge on the part of the
seeker of information as what he has a right to know or be informed about.
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Conceptually, the right to be informed is part of the right of access to justice. But the
Supreme Court in any of its judgments on access to justice has not considered the
right to be informed as the foundation of justice and democracy.
XI. Legislative, Administrative and Court Justice
As part of this access to justice the members of the All India Lawyers Service will
have to first seek administrative justice from those administering the entitlement
schemes in the district. Only after this, if necessary, they will resort to the court. A
new corps of lawyers will be built up --- administrative justice lawyers for the tribal,
the scheduled castes and the OBCs. Based on their field experience joined by the
research studies of the district court research wing these lawyers can also seek
legislative justice. This lawyering cum administrative and court justice has been the
missing element of developmental justice for the last seventy years. It is strange that
while creating constitutional consumersxi of goods and services, (that is those who do
not pay at all or pay nothing compared to market rates for the goods and services
provided under schemes and statutes) the managers of the Indian State did not
configure these elements of justice delivery into the schemes and laws concerning
entitlements of the deprived. The National Food Security Act, 2013 is a startling
example of this configuration failure. The rule of law and the delivery of
constitutional justice even under this statute are left to the whim, fancy and
discretion of the government officials administering the Act, which covers about 70%
of India's population.
XII. Constitutional Consumers into Market Consumers
The work will be inter-disciplinary as entitlements cover a range of disciplines and

institutions in a district, like, education, skills, health, land and agriculture as also
local manufactures, marketing, bank/ government finance. The district judiciary
becomes an integral part of the lives of people in each district in a pleasant and
meaningful way, especially with the use of modern technology. Innovation becomes a
positive cultural force for the creation of a constitutionally just society. It is this kind
of innovation which will convert constitutional consumers into market consumers as
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they become physically and job-skills enabled. The economic growth engine then gets
a kick start from the majority of the population that starts as a constitutional
consumer. Otherwise the proposed All India Judicial Service will simply be only an
addition to the existing judicial bureaucracy called the judiciary, which keeps on
piling arrears and multiplying the declarations of fundamental rights without
executing or enforcing them. A declaratory judicial bureaucracy is no different from
the equally declaratory politico-administrative bureaucracy that declares the law
through legislatures, subordinate legislation and schemes, without bothering for
their implementation.
XIII. Judicial Leadership & Careers
Any such aforesaid plan to innovate the district judiciary into one of judicial service
for constitutional consumers necessitates a leadership from the Chief Justices of high
courts. This is so because under Art.227 a High Court superintends all the district
courts. Under Article 235 control over district and subordinate courts is vested in
High Courts. Under Article 227, High Courts have the power of Superintendence
over the subordinate judiciary. It is only the high court Chief Justices who can re-
engineer the parameters of performance of the district judiciary and accordingly
determine the work done for constitutional consumers in each district court as
having a weightage which will make a significant difference to their career chances.
The most effective leadership for change in this direction can come from the Chief
Justice of India and the Supreme Court. If the Supreme Court collegium were to take
the performance record of a high court chief justice in the management of the district
judiciary 's service to constitutional consumers in the State concerned, then high
courts would possibly ensure the creation of research and statistical units in each
district court as engines of service to constitutional consumers.
XIV. Law Innovation Centers & A Service Chain
Chief Justices of high courts are the chancellors for the National Law Universities in
India. For most of them the Chief Justice of India is the Visitor. Hence these Chief
Justices combined can create Law Innovation Centers in each of their respective Law
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Universities. Legal education will attain meaning as it serves as a resource base for
providing trained manpower for each district and the constitutional justice at the
district level increasingly becomes the focus of purposeful research in association
with the research units of the district courts. Law students of national law
universities will then probably not be heard muttering that after coming to the
university through an all India competitive exam, they found that they had lost the
reason to be there. The students would become gainers not losers as class room
teaching is sharpened by ground reality of the districts. Since the entire network of
legal aid is under the Chief Justice of India and the Chief Justices of High Courts,
legal education, the judicial service and lawyering unite to serve the goal of
constitutional justice to constitutional consumers in each district of India. The
constitutional superintendence by the high courts of the district courts will make the
high courts auditors of constitutional consumers served in each district and in turn
will make the Supreme Court as the supreme judicial monitoring agency of the entire
service chain from the district to the Supreme Court. The question is whether the
judges at the commanding heights of the judiciary have the conscience and the will to
do this, given that they are wholly unaccountable in their extra-constitutional
functions of legal aid, legal education, foreign trips and judicial administration?
References:
* Additional Registrar, Centre for Research & Planning, Supreme Court of India; Fellow Columbia
Law School, U.S.A. & Japan Foundation, Tokyo, Japan
iS. P. Gupta vs UoI, AR 82 SC 192; Subhash vs UoI, A1991 SC 631; Supreme Court Advocated on
Record Association vs UoI, (1993) 4 SCC 441; In Re Presidential Reference, A1999 SC 1; Supreme
Court Judge V. Ramasawamis Impeachment Motion in Parliament on May 10, 1993 after he was
found guilty by the Statutory Committee of a sitting Judge of Supreme Court, Chief Justice of Bombay
High Court and a Retired Judge of Supreme Court constituted under the Judges Inquiry Act. The
motion failed due to abstention from the House by 205 Congress MPs.
All India Judges' Association & Ors. v. Union of India & Ors. (2002) 4 SCC 247; P. Ramachandra
ii
Rao v. State of Karnataka [JT 2002(4) SC 92]; Brij Mohan Lal v. Union of India & Ors. (2012) 6 SCC
502; Malik Mazhar Sultan & Anr. v. Uttar Pradesh Public Service Commission & Ors., Appeal (C)No.
1867 of 2006, Order dated 04.01.2007; Imtiyaz Ahmad v. State of U.P. & Ors., (2012) 2 SCC 688.
Anita Khushwa vs Pushpa Sadan 2016(7) SCALE 235.
1924-1925: Civil Justice Committee Report (Justice Rankin Committee);1949: Chief Justice of
iii
Calcutta High Court's Report;1952: Judicial Reforms Committee, Uttar Pradesh;1958: 14th Report of
the Law Commission of India on Reform of Judicial Administration, Vol.I;1972: Report of the High
Court Arrears Committees; November, 1978: 77th Report of the law Commission of India on Delay &
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Arrears in Trial Courts;February, 1979: 78th Report of the Law Commission of India on Congestion
of Under-Trial prisoners in Jails.;May 10, 1979: 79th Report of the Law Commission of India on
Delay and Arrears in High Courts and other Appellate Courts;1986: Satish Chandra Committee
Report; July 1987: 120th Report of the Law Commission of India on Manpower Planning in
Judiciary: A Blueprint;July 1987:121st Report of the Law Commission of India on A New Forum for
Judicial Appointments;1988:124th Report of the Law Commission of India on The High Court
Arrears A Fresh look;1989-90: Report of The Arrears Committee (Three Chief Justices Committee :
Kerala, Calcutta & Madras);November, 1999: First National Judicial Pay Commission Report, Vol.
I;2001-02: Department Related Parliamentary Standing Committee on Home Affairs : 85th Report on
Law's Delays: Arrears in Courts;March 31, 2002: Report of the National Commission to Review the
Working of the Constitution, Volume I; March, 2003: Committee on Reforms of Criminal Justice
System, Government of India, Ministry of Home Affairs Report (Volume I);February, 2004: 189th
Report of the Law Commission of India on Revision of Court Fees Structure; July, 2014: 245th
Report of the Law Commission of India on Arrears and Backlog: Creating Additional Judicial (wo)
manpower; September, 2011: Report of the Working group for the 12th Five Year Plan (2012-2017)
Department of Justice, Ministry of Law & Justice, Government of India; February, 2014: Department
Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice: 67th
Report on Infrastructure Development and Strengthening of Subordinate Courts; April, 2008:
Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and
Justice: 27th Report on the Action Taken Replies on Law's Delays: Arrears in Court, 2008, P.2-
3.;2001-02: Department Related Parliamentary Standing Committee on Home Affairs: 85th Report on
Law's Delays: Arrears in Courts; May 2, 2012: Office Order for Establishment of National Court
Management Systems, Appendix A of Action Plan; Resolutions Adopted in the Chief Justices'
Conference 2016, 2015, 2013, 2009.
iv Grain & vegetable merchants, Motion Pictures Association, Bullion and Diamond merchants, Textile
manufacturers and wholesalers, Paper Merchants, Matrimonial Disputes among the Scheduled Castes
and Scheduled Tribes.
v ILI New Delhi, A Study of Effectiveness of Gram Nyayalayas in MP and Rajasthan, initiated by
Department of Justice, Ministry of Law, Government of India.

vi 1948 Universal Declaration of Human Rights; 1976: International Covenants on Civil & Political
Rights and on Economic, Social and Cultural Rights. 1985: UN Basic Principles on the Independence
of the Judiciary; 1992: All India Chief Justices Conference & Restatement of the Values of Judicial
Life; 2002: The Bangalore Principles of Judicial Conduct as revised at the Round Table Meeting of
Chief Justices at The Hague.2005: Code of Judicial Ethics, International Criminal Court;2005: Tarak
Singh vs Jyoti Basu, (2005)1SCC201;2011: Thirteenth and Fourteenth Finance Commissions &
Notification dated March 15,2011, Union Finance Ministry.
vii Daya Shankar vs H. Ct of Allahabad (1987) 3 SCC1: Judicial officers cannot have two standards, one
in court and another outside the court.

viii National Mission for Delivery of Justice and Legal Reform- Towards Timely Delivery of Justice for
All, Union Ministry of Law, promised to set up a Special Purpose Vehicle to eliminate all arrears
from the Indian judicial system by December 31, 2012 by treating all cases pending as on January 1,
2009 as arrears.
ix Article 37, Constitution of India
x Bihar Legal Support Society vs Chief Justice of India, (1986) 4 SCC 767 that the weaker sections of
Indian humanity have been deprived of justice for long, long years: they have had no access to justice
on account of their poverty, ignorance or illiteracy. They are not aware of the rights and benefits
conferred upon themthey lack the capacity to assert their rights and they do not have the material
resources with which to enforce their social and economic entitlements and combat exploitation and
injustice.
xi Mahajan K. 'the Constitutional Consumer', p. 1-7, in Global Consumerism; Opportunities and
Challenges, eds. Prof. (Dr.) P.S. Jaswal & Ors., Rajiv Gandhi National University of Law, Punjab.
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Decline of Parliamentary Governance: Indian Scenario
(1952 - 2014)
Afroz Alam*
ABSTRACT
Just as government is accountable to Parliament, Parliament as the

highest legislative office of India owes its accountability to the people
of India, the highest sovereign authority in a democracy. We are
witnessing a steady decline in the use of productive time of Lok Sabha
over the years. Frequent distractions in the Parliament reduced
Question Hour in both houses, a time customarily used by MPs to ask
questions and hold ministers accountable for the functioning of their
ministries. The opportunity for holding the government answerable is
persistently lost. The parliamentary decline is not the unique case of
Indian exceptionalism. The highly professed, once entrenched
parliamentary system is in crisis throughout the world. How can the
people holding the highest offices in the Indian democracy be made
accountable for the governance and financial setbacks caused by
distractions, deadlocks and stalemates in Parliament? Overarching
Parliamentary reforms seem inevitable in light of the challenges that
Indian democracy is facing today. In such a scenario, this paper
suggests that there is an urgent need to take the lessons from its own
records if not from the world and bring out positive change in the
working style of Indian Parliament to ensure its survival. If we are
not able to draw serious attention on reforming the parliamentary
system, the time is not far off when our Parliament will only be
treated as gossip centre like a betel shop or barber salon where self-
styled politicians discuss political issues with no policy or legislative
outcomes.
Keywords: Parliament, Parliamentary Democracy, Constitution,

Decline, Accountability, Lok Sabha etc.
I. Introduction
The working of our Parliament in the last two years of NDA regime has undergone
several changes. One of the reasons is the absolute majority of the ruling party and
decimation of opposition parties in 2014 Lok Sabha elections. In general, the
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working of the Parliament during the present NDA government has slightly
improved comparing the past years of Post-Nehruvian phase. Nonetheless, the
present paper aims to analyze the working of Indian Parliament from 1952 to 2014.
Strangely, the pivotal position the Parliament once held in the Indian political system
is not there anymore. The growing dichotomy and the consequent cognitive hiatus
between Parliament as an institution of accountability and dysfunctional of our
parliamentarians has created doubt on the legitimacy of the claim that parliamentary
system is one of the finest mechanism to provide effective and accountable
governance. Another flip side of the working of contemporary parliamentary system
is income concentration favouring a few and deteriorating quality of life for the vast
majority. However, it would be misleading to argue that the present dichotomy of
parliament and parliamentarians was prevalent across the phases and the context of
democratic politics in India. In fact, this poor narrative of the working of Parliament
does not suitably fit the patterns during first one and half decades of Indian
democracy.
The achievements of Nehru era have been extraordinary by any standard. This is
partly explained by the working style of Jawaharlal Nehru and partly due to the
unshaken Congress regime. In this particular context, W.H. Morris-Jones candidly
observed that the way in which parliamentary democracy works, depends more than
we might like to admit on the balance of powers between political parties. i Despite
the scale of his parliamentary majorities, Nehru emerged as a genuine
parliamentarian as he has shown greatest deference and sensitivity to the
Parliament. He sought to create an atmosphere of trust and consultation with
opposition.ii For him, Parliament was not only a moral institution but also an
emblem of Indias modernity.iii Both Parliament and parliamentarians were working
with dignity and authority. Records also indicate that the then parliamentarians
attend the parliamentary sessions with well preparations and were heard with rapt
attention. Outstanding debates were common and functioning of the executive was
criticized and debated by the ruling party itself. To put it simply, Nehru is to be
credited for setting the vision of Parliament as an institution of accountability and
high political relevance. While analyzing the story of Indian Parliament, Morris-
Jones found Nehru as a reason behind the successful working of the Parliament
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while arguing that Perhaps India without Nehru's leadership might not so firmly
have acquired this political system, might not have been able so quickly to let it take
clear shape.iv
Nevertheless, a careful analysis of the parliamentary proceedings, academic writings

as well as editorial and opinion pieces in the so-called mainstream media over the
last three decades indicate a painful transition from a remarkable deference to the
growing insensitivity of our parliamentarians towards not only the parliamentary
decorum and decency but the institution as a whole. It might sound strange but the
mystery of parliamentary rot is much deeper that one can perceive. There is a
substantial change in the vocabulary of parliamentary politics in contemporary India.
The frequency of parliamentary disruptions through walk outs has become the norm.
The quality time of the Parliament is wasted on trivial political controversies,
rowdiness, disorder and theatrics. The parliamentary perversion could also be seen
not only in the falling standard of the parliamentarians but also in their marriage
with crime, money, scams and demagoguery. Evidence from the parliamentary
records also indicates that our parliamentarians are willfully missing the
opportunities to strengthen the Parliament through non-participation in
parliamentary sittings and debates, question hours, budget-related discussions and
what not. The troubling outcome of the declining phenomenon is the growing trust
deficit amongst the people of the country and their belief that in the present hands of
parliamentarians, Parliament will only rot with each passing day. Thus, the fast
growing dichotomy between the parliament and parliamentarians and the
consequent nihilism among the people are at the core of this analysis of
parliamentary decline in India.
II. Preliminary Observations
The realistic appraisal of the working of Parliament in the post-Nehru India is

proving the argument of Parliament emerging as an institute of secondary
importance. The doctrinaire orientation of recent thinking on Parliament is highly
critical. Balveer Arora once argued, and rightly so, that despite all works that Indian
Parliament is still doing effectively, a clear decline in its quality is visible, that he
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attributes to the increasing competitiveness amongst the political parties. v Even G.

Rubinoff in his work has concluded that after 50 years of working of Indian
Parliament, an era of decline has taken over which is evident from present
functioning of the Parliament.vi While Shankar and Rodrigues believe that there has
been a decline in functioning of Indian Parliament by looking at the past time of early
1950s that may be due to the change in character of representatives being elected in
the modern times.vii
Given the frequent criticism can we argue that we are living in the final fading years
of Parliamentary glory? Is parliamentary decorum and decency no more a priority in
contemporary age and time? If yes, then, what are the reasons that could explain the
growing irrelevancy and the ineffectiveness of Indian Parliament? However, it is
difficult to examine these questions with accuracy. Nevertheless, keeping in mind the
focus of our inquiry, seven preliminary observations on the possible reason for
institutional decline of parliament call for special attention.
First is what may be called the serious absence of genuine will among
parliamentarians themselves to inculcate parliamentary values in ones personality.
Their personal gain is prioritised over the parliamentary image. Parliamentary values
are the last thing on their mind as they take Parliament a taken-for-granted
institution.
Second, there is the democratic paradox of first-past-the post system which

emphasises more upon the numeric dimension on attaining victory in the present
competitive politics. The paradox lies in the opportunity for every non-serious
candidate with muscular and economic strength having the strong probabilities of
winning the parliamentary seat. This is evident from the criminal records of the most
of the parliamentarians and their complex nexus with corporate world. Thus
expecting civilly guided behaviour from the parliamentarians having criminal
records and having vested interest in ones economic growth is little too much an
expectation.
Third, there is the aspect of digitalisation of parliamentary records and televising of

parliamentary proceedings. Most of the parliamentary disruptions, walk outs,
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protests and trivial hungama by our parliamentarians are due to the chance of being
seen on TV and the consequent publicity among the electorates of their respective
constituencies.
Fourth is the emerging multi party framework due to the rise of strong regional
parties helped the Parliament to emerge as platform to debate and discuss the
diverse issues and interests most of the time trivial in character and electoral in
intent. In doing so matters of high national and political importance are sidelined.
Fifth is the compulsion of coalition politics. Coalition politics set the new trend in
India that could be observed in the frequent use of ordinances just to avoid debating
legislation with their partners as well as opposition. This is certainly not a healthy
practice because the deliberative and representative character of the Parliament is
highly compromised.
Sixth is the shifting ownership of our Parliament from people to few entrenched
dynastic oligarchs. Parliament, as it appears, has been privatised. Parliamentary hall
is treated as drawing room of these oligarchs where everything is taken for granted
without any code of conduct. The issues of parliamentary accountability, decency and
decorum, debate and discussions are easily sidelined as if these are small inner house
family matters.
Last is the growing indifference amongst people of India towards the working of
Indian Parliament. While wealth, crime and political power have always colluded to
some degree, there comes to a point where apathy, pseudo tolerance and indifference
binds the will of the people to a fanatical idea that brings total loss of faith in the
efficiency and transparency of their own institution. This situation in India is evident
from their helpless acceptance of politicians are like this only. Our parliamentarians
are taking advantage of this growing indifference as their rampant unparliamentary
behaviour going unchecked.
In these preliminary observations, we hope to have drawn attention to the different

aspects that are responsible for institutional decline of Parliament in India. In what
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follows we have examined the extent of decline vis--vis the various essentialities of
the parliamentary system from 1952 to 2014.
III. The Extent of Parliamentary Decline
To understand how India will be better able to overcome the parliamentary decline,
we need to examine the extent of parliamentary rot. We have limited our analysis
only on five scales namely the decline in number of parliamentary meetings and
sitting; poor attendance of MPs in parliamentary sessions; poor participation by MPs
in parliamentary debates decline in quality of matters being discussed; and poor
utilisation of question hour. These aspects will be separately analysed with data in
hand in the following order.
[a] Number of Parliamentary Meetings and Sitting Hours
We need to consider four trends when the parliamentary sittings are in question.
First, there is a consistent decline in the number of days for which both Houses of
Parliament sits every year and time for which deliberations are made for deciding
upon question of national relevance has considerably reduced, incomparably, in
recent times. As per the recent analysis of PRS Legislative Research (PRS), against
the average 127 days of sitting in the 1950s, Lok Sabha met only 74 times in 2012.
The story of Rajya Sabha is also not different. Rajya Sabha on an average meets 93
days a year in 1950s. But it has reduced to merely 74 days in 2012.viii Worst of all was
the winter session of Parliament in 2010. In the Whole session, the Rajya Sabha met
just for two hours and 44 minutes, the Lok Sabha for seven and half hour. The
number of Lok Sabha sessions that took place during the winter session was 23
which are way less than last few years.ix The following graph reflects the decline in
number of sittings up to 2010.
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Study by PRS Legislative Research in its vital stats named 60 Years of

Parliament AVAILABLE AT http://www.prsindia.org/parliamenttrack/vital-
stats/60-years-of-Parliament-989/.
Interestingly, the highest number of sitting was recorded in year 1956 when Jawahar
Lal Nehru was the Prime Ministerx which has declined considerably till 2010. Morris-
Jones examined the extent to which the institution functioned successfully as a
component of representative government during the Nehruvian regime. xi However,
today such a constant decline in number of meetings for a sustained period of time
puts a question on seriousness and punctuality of Indian Parliament. Actual days of
sitting to deliberate are a third of what they were in the 1950s, even though other
aspects of constituency representation such as travelling to and communicating with
constituents have gotten easier.xii As a result of lack of meetings, number of
ordinances being promulgated has increased largely.
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Study by PRS Legislative Research in its vital stats named Parliament in

2009 AVAILABLE AT http://www.prsindia.org/parliamenttrack/vital-
stats/parliament-in-2009-989/.
Second, as a result of fewer deliberations by the Parliamentarians, most of the work

is left for the Executive with full discretion in their hands manifested in increasing
promulgation of ordinances. This trend is the serious encroachment on the
jurisdiction of the Parliament.xiii Former Lok Sabha speaker Shivraj Patil once
cautioned the government on this issue when he argued that Ordinance should be
promulgated only when absolutely necessary. A responsible Government should be
careful about this.xiv
Surprisingly, during the time of Jawahar Lal Nehru, the number of ordinances
passed by the President always remained low relatively when comparing to the recent
few years, which itself connotes an apparent inefficiency in working of the
Parliament in recent years. Impressed with the efficiency of Nehruvian Parliament,
Morris-Jones described Indias political system as a mediating framework for a
dialogue between the two inherited traditions of governance and movement.xv
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Budget Session 2011 AVAILABLE AT
http://www.prsindia.org/parliamenttrack/vital-stats/parliament-in-
budget-session-2011-1614/.
Third trend is speedy decline in duration of budget session in Lok Sabha.

Undoubtedly, the budget session is of crucial importance. Finance Minister presents
the Budget in this session with details of income & expenditure, allocation to various
heads of expenses, special concessions, taxation details, etc. The budget session also
makes the Finance Ministers accountable for the financial health and progress of the
country as reflected in the funds allotted for developmental activities.xvi
In the year 2011, both houses sat down for total of 23 days which is the lowest
number of sitting in a non-election year in last 2 decades. Even the number of sitting
hours as against availability of practical working hours has declined marginally.
However, in the year 2012 both Houses met for 35 days which is marginally higher
than the previous sessions. But the irony is that 92 percent of budgetary proposals in
2012 were guillotined i.e. put to vote without any discussion. While in 2011, 81
percent of demands were guillotined. Mehta, in this regard, aptly remarked that
Parliament has become increasingly unprofessional, passing budgets with almost no
scrutiny which is a clear sign of decline.xvii He further adds to it by saying in any
case point is that India is democracy, and the budget is one of the major policy
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statements of a democracy, so elected leaders should be paying attention.xviii Even

other scholars have also given a critique of Indian Parliament by concentrating on
the decline of Parliaments role in budget planning.xix

Winter Session 2010 AVAILABLE AT
winter-session-2010-1426/.
Report from Lok Sabha Secretariat- Press and Public Relations Wing
released in document named Seventh Session of 15th Lok Sabha- An
Overview AVAILABLE AT
http://164.100.24.207/statementofwork/statement/statementofwork.pdf.
Fourth trend is the late start of parliamentary session over the years resulting in loss
of valuable time required for important discussions.
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The review of these four trends with data base clearly indicating the extent of decline
in parliamentary deliberations.
[b] Poor Attendance of MPs in Parliamentary Sessions
Absenteeism of our parliamentarians during the sessions is another major challenge

that our Parliament is facing. To have a check on this, there is a rule which says every
Member of Parliament (MP) is required to sign the attendance register to claim the
daily allowances.xx But as it appears from the record, absenteeism tends to increase.
Three scenarios have emerged on the poor attendance of our parliamentarians. First,
most of our parliamentarians are becoming surprisingly reluctant to attend the
parliamentary sessions.xxi There is a growing tendency among them to treat the
sessions casually.xxii Evidence could be drawn from their attendance records of
different sessions. For instance, during the 11th and 12th sessions of the fourteenth
Lok Sabha, more than 75 percent members were below the median point of 16 or
more days of attendance. As can be seen most of the MPs attended between 11 and 15
days in total. Not only that, the number of MPs whose attendance ranged from 05
days increased in the 12th session.xxiii Even in the fifteenth Lok Sabha there are
only seven out of 545 members have 100 percent attendance.xxiv
Study by PRS Legislative Research in its vital stats named Attendance Records of
Members of Parliament AVAILABLE AT
http://www.prsindia.org/parliamenttrack/vital-stats/attendance-record-of-
members-of-parliament-2006-416/.
The data depicts the attendance record in years 2004 and 2005 sessions which
reflects a considerable concern. The average attendance is hardly between 70%-75%
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which is way less than 1950s. On the other hand attendance used to be much better
than the present time during Nehruvian era, due to the fact that MPs were interested
in debating upon issues of national importance.xxv
Study by PRS Legislative Research in its vital stats named Attendance Records
of Members of Parliament AVAILABLE AT
http://www.prsindia.org/parliamenttrack/vital-stats/attendance-record-of-
members-of-parliament-2006-416/.
Second, age-wise analysis indicates, questionably, the similar stories. Absenteeism

afflicted the parliamentarians across the age categories, both young and seniors. This
is not a healthy trend when even junior members of the parliament showing
disrespect to the parliamentary sessions leave alone the senior members. Even the
records of so called responsible leaders are miserable. For instance, the overall
attendance record of Ms. Sonia Gandhi is 36 percent with participation in three
debates during 14th Lok Sabha and 61 percent with zero participation in debates and
zero utilisation of Question Hour in 15th Lok Sabha so far. Similarly Rahul Gandhi,
Akhilesh Yadav and Navjyot Singh Sidhu have been found of having less than 30%
attendance in between May, 2011 and May, 2012.xxvi
Third, foreign travel of both ministers and parliamentarians when the session is
going on is another concern. Even, Prime Minister Manmohan Singh has made three
foreign trips over 13 days during the 21-day 2009 winter session due to which his
attendance has remained very low. In 2007, the then Speaker Somanth Chatterjee
came out with concerns against MPs travelling abroad when Parliament is in session.
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He also communicated to the Prime Minister Singh in writing asking that no

Minister travel abroad without the chair's expressed permission. xxvii But no action
was taken and situation still remains critical. The principle,
Voicingtheconstituentsconcernsonthefloorofthehouseisthe
primaryparliamentay dutyofanelectedrepresentative,xxviii mentioned
in the rulebook of Lok Sabha is no longer relevant.
[c] Poor Participation by MPs in Parliamentary Debates
The quality of participation of MPs reflects the proper representation of people in

Parliament. Indian Parliament for long time has been known for the kind of
discussion that prevailed in the Parliament reflecting national importance. But, in
the present times the participation in crucial Parliamentary discussion has decreased
at an alarming rate. In 2009, participation in Lok Sabha for passing of bills was very
poor. In 2006 Lok Sabha, even an hour of debate did not take place and more than
40% of bills were passed. What is gloomier is that 65% of MPs did not say a word
about any legislation during that year.xxix This was not the case till Nehruvian time.
During this period contentious issues were debated with dignity on the floor of the
House. MPs were competing with each other as political rivals, but never allowed to
degenerate the House into a chaotic battle ground. All MPs were treated equal in
worth and were heard with all seriousness and decency.xxx
The biggest casualty is the decline in terms of the quality of debates in the House.
This is because the intellectual quotient and political potential of contemporary
parliamentarians are also declining significantly. What is astonishing is the fact that
23.2% of those elected to Parliament face criminal charges ranging from murder to
extortion and rape. Therefore, it is highly unlikely to expect from such lot to be good
debaters.xxxi
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The statistics show even more relative decline in year 2010, when if considering
speaking once as criteria than also hardly 60% was average participation. The
situation is such that most of the MPs are not raising their voice even once during
passing of a bill. In this regard eminent Parliament commentator Arun Shourie says
that these chambers are now not Legislatures that hold governments to account,
they are now halls in which the motions are gone through, in which put on
melodramas are enactedxxxii
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Study by PRS Legislative Research in its vital stats named Participation by

MPs in Lok Sabha- Budget Session 2010 AVAILABLE AT
http://www.prsindia.org/parliamenttrack/vital-stats/mp-participation-in-
The situation is even more critical in case of participation in debates by youths is

considered. The relative participation on basis of membership of parties has also
been an issue of concern, as reflected by this data.
Study by PRS Legislative Research in its vital stats named MP

Participation in Monsoon Session 2010 AVAILABLE AT
http://www.prsindia.org/parliamenttrack/vital-stats/mp-participation-in-
monsoon-session-2010-1281/.
These statistics reflect that lowest participation is done by MPs of Indian National
Congress i.e. the ruling party. It is very critical because party which is in power and if
participating least in debates than concern is raised regarding quality of laws and
policies being framed. The condition of 2009 Winter Session was such that many
MPs, including Rahul Gandhi, did not ask even a single question. Same was the
condition with Mulayam Singh Yadav and Akhilesh Yadav from Samajwadi Party,
Jaganmohan Reddy of the Congress and Shatrughan Sinha of the Bharatiya Janata
Party (BJP).xxxiii Hence, the condition is that the ruling party including senior most
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members is participating least in law making which even raises a question over the
kind of Government that is ruling in centre.
It is highly valued in a democratic setup when representatives effectively articulate

the interests of their constituents in general policy debates or decision making. xxxiv
But this principle is also marked by its conspicuous absence given the contemporary
parliamentarians are concerned.
[d] Decline in Quality of Matters being Discussed
The quality of matters being discussed in Parliament has declined for a considerable
period of time. The matters of public importance have been ignored and not
discussed while matters requiring least attention are discussed for long durations.
Instead of engaging in qualitative and logical debates, our parliamentarians are
treating the Parliament as a platform where they shout to test their vocal chords. So
Parliament is divided in 2 groups; one making the laws and other breaking the laws,
thus a serious doubt is raised over the development of country.xxxv

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The condition is such in Parliament that matters of importance such as legislative

debates are being discussed least while focus is only on financial matters. Debates
regarding social welfare, civil rights, national security are almost ignored. The time
given for law making in 2009 was only 165 which is way less than it should be.xxxvi
After Jawahar Lal Nehru, there has been a steep decline in quality of matters being
discussed in the Parliament and the policies framed as a result of these deliberations.
Post-Nehruvian generation of Indian leaders, for example Indira Gandhi treated
Parliament as a rubber stamp for imposing her narrow decisions. Both Rajiv Gandhi
and Narsimha Rao also remained least interested in Parliamentary works.xxxvii
In an incident that took in 2003, a DMK member was suspended from the House
because he tore a policy paper on Police Department near Speakers chair. As a result
DMK members withdrew from participation in the whole session xxxviii, that lead to
debate on issues of survival of MPs and deprivation of their rights in Parliament that
was followed by shoutings made by Congress MPs.xxxix This is one such incidence
taking place amongst several instances when no serious matter is being discussed
rather totally useless matters of no public importance are being debated. The
condition can clearly be proved with the help of following data.
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Most of the bills discussed in Parliament were passed in a very short duration of time
and only few bills were discussed at length. Over the last many decades, the
parliamentary records are full of instances of having passed the bills without the
procedure for scrutiny and deliberation as laid down by Parliament. The South Asian
University Bill, for instance, was introduced in Rajya Sabha, and passed within two
days without any debate.xl The case in this bill was regarding the higher education
which is one of the essential postulates of policy matters to be discussed in the
Parliament. So, it is clear that the ideal duty of Parliament is to enact laws by
discussing them in length, but here most of the bills are being passed by without
carrying any debate or discussions.

As far as working of Lok Sabha is considered, a particular time is allotted for

discussion on private member bills. But in this recent session of Lok Sabha most of
the private member bills were pending to be discussed, and finally most were not
entertained. Concerns in this regard have been even raised by Dr. V. K. Agnihotri
(Secratery- General of Rajya Sabha) saying that during this long Budget Session,
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not even a single sitting could be devoted to Private Members Legislative Business.
Honble Members also did not have adequate time to raise Special Mentions or
Matters of Public Importance. These trends in the conduct of business have invited
adverse comments and lowered the image of the Legislature in the eyes of the
public. Correctives have thus become imperative.xli
Parliament in Budget session in 2012- 92% of budget demands were not

discussed

It is the duty of Parliament to discuss budget demands of all ministries and other
bodies, but in the present session budget demands of most of the ministries were not
even discussed. Hence demands of only few ministries were discussed while rest
were forwarded for voting without any deliberations.
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Parliament in Budget session in 2011- Division of time in different

discussions

These statistics itself reflect that in the recent session of Lok Sabha, most of the time
was devoted in discussing non-legislative and other less important matters. The
valuable time of Lok Sabha was wasted in discussing matters pertaining to wikileaks,
corruption issues etc., without giving appropriate time to legislative affairs. Many
bills have also been passed by the way of informal discussions making the condition
even more worst.xlii Looking at such condition, Krishan Kant, the then Vice-President
of India has said, each time the Parliamentarians and Legislatures are plunged in
anarchic chaos, the edifice of democracy is little weakened.xliii
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Study by PRS Legislative Research in its vital stats named 60 Years of

Parliament AVAILABLE AT http://www.prsindia.org/parliamenttrack/vital-
stats/60-years-of-Parliament-1614/.
If by looking at the present data given in the above table, it is apparent that the
passing of bills which is the essential legislative function has shown a relative
decline.xliv On the one hand during early days of our democracy when Jawahar Lal
Nehru was Prime Minister, the number of bills passed in one year was way more than
the number of bills passed in present time. It can be, thus very well said that there
has been a relative decline in quality of matters being discussed in the Parliament in
present era which reflects its inefficiency in passing bills which is apparent from
constantly decreasing figures. The contemporary parliamentarians have simply
betrayed the faith what our founding fathers reposed in the Parliamentary
democracy as one of the suitable model for Indias growth and development.
It is even mentioned in rulebook of Rajya Sabha that one of the important functions
of Rajya Sabha is to focus public attentions on major problems affecting policies of
the Government and administration and to provide a forum for ventilation of
public grievances. This is nowhere reflected from present functioning of Rajya
Sabha taking into account the quality of matters being discussed. Now, slowly and
gradually, Parliament ceased to be a place for orderly exchange of viewpoints and
many important legislations and decisions are made without any meaningful
discussion or debate. Many MPs have brought their political rivalry from the streets
to the floors of the house, attacked their opponents physically and had to be
separated. Such incidents were unthinkable during the Nehru era. xlv Thus the
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research again proves that the quality of matters being discussed in the Parliament
nowadays has deteriorated.
[e] Poor Utilisation of Question Hour
It is by convention that first hour of sitting both in the Lok Sabha and the Rajya
Sabha are assigned as the question hour. Zero-hour is a significant parliamentary
time to enable MPs to raise very urgent issues that require the governments
attention. Zero-hour comes for a few minutes after question-hour. It is designed to
optimize Parliaments time, and if possible use up any residual time. It is also
uniquely Indian in which MPs are not even required to give any notice to the
Speaker.xlvi
In recent times data reflect that question hour has often been disrupted. Even in this
regard Chairman Hamid Ansari said that "it has been observed that members tend to
raise issues concerning them at the expense of Question Hour".xlvii The statement
itself reflects the disrupting quality of question hour and least importance being
attached to this valuable part of Parliamentary procedure.
Poor Utilisation of question hour till Winter Session, 2012 of the

Parliament
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The condition was no better in previous Lok Sabha session that was winter session of
Parliament in 2010.
Starred Questions Answered Orally in the Parliament in 2012

The destruction of question hour has continued in the year 2012 as well, with only
144 questions in Lok Sabha and 157 questions in Rajya Sabha being answered orally,
while others were left for written answers due to paucity of time as a result of
frequent disruptions.
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Question hour was held twice in winter session of Parliament in 2011
Study by PRS Legislative Research in its vital stats named in Parliament in

In this question hour of 2010 Monsoon Session of the Parliament out of 480 starred
questions only 4 questions were answered orally while rest 476 were answered in
written form due to frequent disruptions in Parliament and other issues being
discussed in question hour. Similarly in Rajya Sabha not even a single question was
answered orally. xlviii
The ignorance of MPs about the visible significance of question hour could not be
taken as an excuse. Because in 1957, it was a Question Hour query that blew the lid
off India's first major financial scam. It was a Lok Sabha Question Hour query by MP
Feroze Gandhi that unraveled the Mundhra scandal leading to the resignation of
then finance minister T T Krishnamachari.xlix This is the value of question hour and
way it was utilized in Nehruvian era which is nowhere seen in present times. Due to
constant decline in quality of question hour, comments have been made by various
scholars regarding decline in character of the Parliament as whole by taking this
point into consideration.l
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The condition of question hour has remained critical for quite a long period of time,
as evident from the above chart. In 2009 session of Lok Sabha, the condition became
so worst that out of 1100 questions admitted for question hour, only 266 were called
in house while rest could not be raised due to paucity of time. Even, out of these 266
questions, in 57 questions enquiring MP was not present so only 209 questions were
orally answered.li As a result even Rajya Sabha is planning to introduce a rule that no
starred question goes unanswered in the absence of person who posed it.
Hence, this review of various aspects of the working of Parliament in post-Nehru era
indicates how opportunities have been missed by our parliamentarians to set the
shaking image of our Parliament right. In India, parliamentary erosion tends to
trigger dramatic socio-political, legal and institutional change. The discussion that
follows considers certain implications of this trend, both implicit and explicit.
IV. Conclusion
The parliamentary decline is not the unique case of Indian exceptionalism. The
highly professed, once entrenched parliamentary system is in crisis throughout the
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world. The performance of both Parliaments and parliamentarians across the globe
has left no doubt that they are fast turning to a kind of rotten system that the
democratic history has never witnessed before. To carry forward the case, Lord Bryce
has devoted a full chapter named The Decline of Legislatures bringing out a point
of decline in Parliaments around the world although he was not able to suggest any
reforms.lii In another instance, due to the falling standards of the parliamentarians in
public life U.K. Government constituted Nolan Committee on Public Standards in
1994. On the basis of this Committee report the House of Commons adopted a code
of conduct for the Members which, inter-alia, stated: Members shall at all times
conduct themselves in a manner which will tend to maintain and strengthen the
public's trust and confidence in the integrity of Parliament and never undertake
any action which would bring the House of Commons, or its Members generally
into disrepute.liii
In such a scenario, there is an urgent need to take the lessons from its own records if
not from the world and bring out positive change in the working style of Indian
Parliament to ensure its survival. If we are not able to draw serious attention on
reforming the parliamentary system, the time is not far off when our Parliament will
only be treated as gossip centre like a betel shop or barber salon where self-styled
politicians discuss political issues with no policy or legislative outcomes. The call is
not to change the whole institution in one go. It is also in no sense viable. The idea is
to bring changes, even incremental, that can help the Parliament to recover from
present condition and faith of people is restored in Parliament. We must
acknowledge the fact that our democracy will survive and stand only when men are
principled enough to make it stand and survive.
We must reform to transform our parliamentary system work well or else the whole
system will slip away from us. In this pursuit we recommend following reforms:
There is a need of high interface of our parliamentarians with people not

only of their constituencies but also in general on different issues of policy
and legislative importance. Sincere effort is needed to increasing
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transparency between citizens and their parliamentarians. This will bring

the faith of the people back with both Parliament and parliamentarians.
Periodical conference, workshops and training programmes are to be
organised to train our parliamentarians on working tools of the
Parliament, parliamentary decency and decorum, matters of legislative
importance, issues of national and international importance, drafting bills
etc to increase their efficiency level and to improve their image.
Codification of Parliamentary Ethics and Privileges are the need of hour to
ensure check on their violations. Electoral reforms on the eligibility criteria
for becoming a MP should be made stricter like including conditions such
as minimum educational qualification, no criminal record etc. The recent
judgment of the Supreme Court to disqualify the sitting parliamentarians
in case they are convicted of certain offences is a welcome move. A full-
fledged law on this is urgently needed.
Political parties have to show sincere interest in distributing tickets to
those candidates who are having clean background. There is a need to offer
candidacy to skilled professional like lawyers, doctors, social activist,
academicians etc. so as to utilize their skill, experience and potential in law
making.
Political parties shall be within the purview of Right to Information Act to
increase transparency so far as the case of fund raising, agenda setting,
distribution of tickets, party elections and their nexus with corporate world
is concerned. This change is more needed when they too are consistently
rated corrupt by the people of the country recorded in the 2013 report of
Transparency International.
Right to recall those parliamentarians who are not performing well shall be
with people. A positive change has already taken place in this direction
when judiciary instructed the Election Commission to incorporate right to
reject i.e. none of the above column in EVM and ballot box.
Compulsory Referendum is to be introduced on legislative matters of high
national importance.
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There is a need to codify Parliament rules such participation in debate rule,

discipline, decorum etc. and also imposing fines and punishments for
violation of the same. Compulsory attendance of our parliamentarians
during session is to be made rule unless otherwise prior permission is not
granted by the Speaker. The conduct of our parliamentarians outside the
parliament should also be sincerely monitored.
The annual report card of each parliamentarian is to be prepared on their
attendance during parliamentary sessions, participation in debates and
discussion, number of questions he has raised etc and then distributed
amongst the people of their constituencies.
There is also a need of institutional machinery to annually audit the
growth in their income and wealth and performance in their respective
constituencies.
References:
*Associate Professor & Head, Department of Political Science, Maulana Azad National Urdu
University (MANUU), Hyderabad-500032. Author may be contacted at: afrozalam2@gmail.com
i Morris-Jones,W.H, Parliament in India University of Pennsylvania Press, Philadelphia, 1957., p. 113.
ii S. Khilnani, The Idea of India, London: Penguin, 1997.
iii B. M. Chandra Mukherjee and A. Mukherjee, India after Independence, New Delhi: Viking, 1999.
iv Morris-Jones,W. H, Parliament in India University of Pennsylvania Press, Philadelphia, 1957.
vBalveer Arora. The Indian Parliament and Democracy. In The Indian Parliament: A Comparitive
Perspective, by Ajay K. Mehra and Gert W. Kueck, 15-26. New Delhi, 2006.
viG. Rubinoff. The Decline of India's Parliament. The Journal of Legislative Studies 4, no. 4 (1998):
13-33; See also Arora, R S. People and Parliament in India: A Study of Electoral Behaviour in India.
Parliamentary Affairs: A Journal of Representative Politics (Oxford University Press) 16, no. 1
(1962): 55-66, He has also commented on the decline of Indian Parliament by taking electoral
behaviour of people into account and by showing that voters are not interested in voting due to such a
decline in qulaity of the Parliamentary functioning.
Sharmila Mitra Deb. Indian Democracy: Problems and Prospects. Anthem Press, 2009; See also B
vii
L Shankar and Valerian Rodrigues. The Indian Parliament: A Democracy at Work. New Delhi:
Oxford University Press, India, 2011.
See the recent study of PRS Legislative Research available at http://www.prsindia.org. (accessed on
viii
February 23, 2013)
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ix Dr. Rushikesh Hole. Hasn't our Parliament declined in contemporary times?

http://www.prep4civils.com. 10 December 2010. http://www.prep4civils.com/blog/daily-
essay/339/hasn%e2%80%99t-our-parliament- (accessed January 12, 2013).
x See Subhash C. Kashyap. Reviewing the Constitution? New Delhi: Shipra Publications, 2000.
xi Morris-Jones,W.H, Parliament in India University of Pennsylvania Press, Philadelphia, 1957.
xii Devesh Kapur and Pratap Bhanu Mehta. The Indian Parliament as an Institution of
Accountability. Democracy, Governance and Human Rights Programme (UNRISD), January 2006:
27.
Ramesh Kumar Goyal and Rajini Arora. Indian Public Administration: Instituions and Issues. New
xiii
Age Intenational, 1995.
Cf. Ashwini K Ray. Indian Violent Democracy. Illustrated Weekly of India, September 21-27,
xiv
1991; See also S. S. Khera. The Central Executive. Delhi: Orient Longman, 1975.
xv Morris-Jones. The Government and Politics of India Hutchinson, London 1964, p. 126
xvi Parliament of India. Session of Parliament of India. www.parliamentintofindia.org.in.

http://www.parliamentofindia.org.in/session-of-parliament-of-india.htm (accessed January 22,
2013).
Pratap Bhanu Mehta. The rise of Judicial Sovereignty. Journal of Democracy 18, no. 2 (October
xvii
2007): 70-83.
xviii Ibid.
xix See B. Mohanan. Globalisation of Economy: Vision for the Future. Gyan Publishing House, 1995.
xx See Lok Sabha link at

http://164.100.47.132/LssNew/Business/Bulletin2detail.aspx?bull2date=06/02/2004 (accessed on
February 25, 2013); See also Centre for Civil Society. Parliament and Citizens: Bridging the Gap
through greater Transparency. New Delhi: Commonwealth Human Rights Initiative, 2010.
xxiSee Dean E. Mchenry. Parliament in India: Is there order midst the chaos? Western Political
Science Association. Las Vegas, 2007. 32.
Srinivasan K. Rangachary. Parliament paid for nothing. The Shillong Times, September 2011; See
xxii
generally IBN Live Politics. MPs should debate, not disrupt Parliament. www.ibnlive.in.com. March
5, 2009. http://ibnlive.in.com/news/mps-should-debate-issues-not-disrupt-parliament/86387-
37.html (accessed January 22, 2013).
National Social Watch Coalition. Governance and Development, 2008-2009. NGO Study, Delhi:
xxiii
Daanish Books, 2009.
xxivSee Mass for Awareness. Representative at Work http://massforawareness.org/. 2009-2010

(accessed January 27, 2013).
xxvSee Willard M. Berry. Parliamentary Participation in the Indian Lok Sabha, 1957-1974.
Legislative Studies Quarterly (Comparitive Legal Research Center) 4, no. 1 (February 1979): 7-29.
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xxviNDTV. Rahul Gandhi, Akhilesh Among MPs with lower attendance in Parliament. 28 August
2012. http://www.ndtv.com/article/india/rahul-gandhi-akhilesh-among-mps-with-lower-
attendance-in-parliament-260269 (accessed January 12, 2013).
xxvii Vidya Subrahamaniam. From roaring lion to timid mouse. The Hindu, February 2010.
Cf. Jessica Wallack. Indias Parliament as Representative Institution. India Review, vol. 7, no. 2,
xxviii
April-June 2008, pp. 91-114
National Social Watch Coalition. Citizen's Report on Governance and Development. New Delhi:
xxix
Pearson Longman Press, 2007.
xxx Avijit Ghosh. "Where's the debate in this din of Democracy?" Times of India, December 28, 2008:
8.
xxxi P Sakthivel. On Revitalizing Parliamentary Democracy. 27 January 2009.

http://www.articlesbase.com/politics-articles/on-revitalizing-parliamentary-democracy-742358.html
(accessed October 3, 2012).
See Arun Shourie. The Parliamentary System. Delhi: ASA Publications, Rupa and Co., 2007; See
xxxii
also Cf. Jessica Wallack. Indias Parliament as Representative Institution. India Review, vol. 7, no. 2,
April-June 2008, pp. 91-114.
IANS. Half of Lok Sabha Mps did not participate in any debate. www.thehindu.com. December
xxxiii
25, 2009. http://www.thehindu.com/news/national/article70242.ece (accessed January 6, 2013); See

also World Snap. Rahul, Sonia, Advani less active in Parliament. www.news.worldsnap.com. May
24, 2011. http://news.worldsnap.com/india/rahul-sonia-advani-less-active-in-parliament-
103813.html (accessed February 7, 2013).
Jessica Wallack. India's Parliament as a Representative Institution. India Review 7, no. 2 (April-
xxxiv
June 2008): 91-114.
xxxv Srikanta Ghosh. Indian Democracy derailed poltics and poiticians. APH Publishing, 1997.
xxxvi Rohit Kumar. Parliament in 2009. www.prsindia.org. 31 December 2009.

http://www.prsindia.org/parliamenttrack/vital-stats/parliament-in-monsoon-session-2010-1277/
Nicholas Baldwin. Executive leadership and assembly debates. New York: Antony Rowe
xxxvii
Ltd.Chippenham Wiltshire, 2006.
The Hindu. DMK will keep of Session if Suspensions are not revoked. www.thehindu.com.
xxxviii
April 9, 2003. http://www.thehindu.com/2003/04/09/stories/2003040904730400.htm (accessed

February 11, 2013).
The Hindu. Opposition MLAs Evicted En Masse, Arrested. www.thehindu.com. April 11, 2003.
xxxix
http://www.thehindu.com/2003/04/11/stories/2003041105040400.htm (accessed January 13,

2013).
xl C V. Madhukar. 46 Day Report Card. www.inidianexpress.com. December 24, 2008.

http://www.indianexpress.com/news/46day-report-card/402181/0 (accessed February 8, 2013).
Dr. V.K. Agnihotri. Sterngthening Links Between Parliament and Citizens. Speech in Opening
xli
Session of Rajya Sabha, 2010 (219th Session of Rajya Sabha). Available at http.//rajyasabha.nic.in.
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Arun Agrawal. The Indian Parliament. In Public Institutions in India: Performance and Design,
xlii
by Devesh Kapur and Pratap Bhanu Mehta. New Delhi : Oxford University Press, 2005.
Krishan Kant. Inaugural Address. In Discipline and Decorum in Parliament and State
xliii
Legislatures, All India Conference of Presiding Officers, Chief Ministers, Minister of Parliamentary
Affairs, Leders and Whips of Parties, New Delhi, 25th November, 2001, by G C Malhotra, 18. New
Delhi: Lok Sabha Secretariat, 2003.
xlivDevesh Kapur and Pratap Bhanu Mehta. The Indian Parliament as an Institution of
Accountability. Democracy, Governance and Human Rights Programme (UNRISD), January 2006:
27.
xlvJustice A.M. Ahmadi. Dr Zakir Husain Memorial Lecture On The Problems and Prospects of
Indian Democracy : An Evaluation of its working for Designing the Processes of Change for Peaceful
Transformation. 15 February 1996. http://www.ebc-india.com/lawyer/articles/96v2a1.htm (accessed
January 29, 2013).
xlviMahesh Vijapurkar. Hero of Zero Hour: Why Rahul Gandhu made that speech?
www.firstpost.com. August 21, 2011. http://www.firstpost.com/politics/hero-of-zero-hour-why-
rahul-gandhi-made-that-speech-70334.html (accessed February 7, 2013).
xlviiIndian Express. Question hour shifted to 2 pm in Rajya Sabha. 4 March 2011.

http://www.indianexpress.com/news/question-hour-shifted-to-2-pm-in-rajya-sabha/757773/
Rohit Kumar. Vital Stats: Parliament in Winter Session, 2010. www.prsindia.org. 13 December
xlviii
2010. http://www.prsindia.org/parliamenttrack/vital-stats/ (accessed January 22, 2013).
Nandita Sengupta. Question Hour: Many don't know what questions are being asked in their
xlix
name. The Times of India, December 2, 2009.
lSee Madhav Godbole. India's Parliamentary Democracy on Trial. New Delhi: Rupa Publications
India Pvt. Ltd., 2006.
li Rohit Kumar. Parliament in 2009. www.prsindia.org. 31 December 2009.

http://www.prsindia.org/parliamenttrack/vital-stats/parliament-in-monsoon-session-2010-1277/
(accessed January 29, 2013); See also Vishwanathan, T K. Session Review: Lok Sabha. The Journal
of Parliamentary Information, 2011: 51.
lii Jame Bryce. Modern Democracies. New York: The Mac-millan Company, 1921.
K R. Narayanan. Decline of Parliamentary Government in Great Britain and India. Rajya Sabha.
liii
New Delhi, 2002. 23-26.
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Volume III Issue II
The Endangered Institution (of Governor):
Problems and Prospects
Yogesh Pratap Singh*
ABSTRACT
Baxi defines crisis as a situation where "the structure of a social

system allows fewer possibilities for problem-solving than are
necessary for the continued existence of the system". Where people
desire change, but are unable to initiate or attain it. There arises a
perception of crisis. Crisis is not a situation-it is incapacity to act.
Among various crises, the first and foremost is the crisis of
legitimation of law and legal institutions. Institution of Governor
under the Constitution which have tumbled many governments is one
perversion arising out of this crisis. It will not be an overstatement to
say that no institution or constitutional office has suffered greater
erosion or degradation than the office of Governor. Political trends
and events have now lent heat to the debate and generated a critical
need to re-examine the Governors role in relation to both
constitutional theory and practical politics. This paper attempts to
highlight some of the major issues viz., the status of the Governor
under Constitutional Scheme, relationship between Governor and the
President, Governor and the Central Government, Governor and his
council of ministers, controversies regarding exercise of his
discretionary powers, his role under Article 356 especially in the light
of leading judicial pronouncements such as S.R. Bommai v. Union of
India and Sarkaria Commission recommendations. Finally, after
examining the constitutional scheme about institution of Governor,
constituent assembly debates to see the vision of the drafters,
approach of the apex court, this paper seeks to demonstrate the
principle that any law which seeks to bring a change to the politico-
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legal values can be a success only if political culture in the country is

made conducive for the operation of the law i.e. the law in isolation
can never be successful unless backed by various socio, political and
legal conventions. Sarkaria Commission recommendations with
respect to the institution of governor must be given effect to save this
endangered institution.
Keywords: Constitution, Governor, Governance, Government,

Council of Ministers, Crisis of Legitimation etc.
I. Introduction
The office of Governor is a British Indian transplant with a federalistic flavor.i Prior
to fourth general electionii this constitutional office was generally beyond any
controversy for obvious reasons. The Congress party was in majority at the Centre
and also in majority of the states and therefore possibility of any Centre-state dispute
was less likely. The role of office of Governor was confined to normal routine
ceremonial functions. Sarojini Naidu,iii Governor of Uttar Pradesh at one time
labeled herself as a bird in a golden cage. Similar sentiment was shared by Shri B.
Pattabhi Sitaramayyaiv who said he had no public function to perform except
making a fortnightly report to the President. Justice Subba Rao recounts: One
Governor told me as early as 1954 that he read two hundred novels during his tenure,
indicating thereby that he had no serious work to do. Another Governor publicly
declared that she was a super-hostess.v The political situation after fourth general
election witnessed a radical change. Congress though managed to retain the power in
the Centre but lost dominance in many states which were taken over by non-congress
coalition political parties. There was hardly any ideological cohesion amongst them.
This change brought office of governor in the light. In states with non- congress
Government, the Governor was taken as Centres reliable servant acting on the
instructions of the Union Government. This office assumed more importance in
states with non-congress coalition government. There were opportunities for the
Governor to exercise his constitutional powers to destabilize or weaken the non-
congress state governments. This gubernatorial office, which was not embroiled in
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the political turmoil during pre-1967 era of one party dominance suddenly shot into
both importance and controversy that continues till date.vi The recent fiasco of
Uttarakhandvii and Arunanchal Pradeshviii once again brought this office under
unembellished disparagement. It will not be an exaggeration to say that no
institution or constitutional office has suffered greater erosion or degradation than
the office of Governor. The public today generally regards the Governor as an
employee of the Central Government. The unfortunate part is that quite a few
incumbents of this office have no clear and proper conception of their role in our
constitutional scheme, and, in fact, regard themselves as the lackeys or employees of
the Central Government and readily act according to its behest. ix One can only say
that these persons let down their high office and betrayed the high hopes of the
framers of the constitution.
II. Genealogy of Institution of Governor
British came to India in sixteen hundred as traders in the form of the East India Co.
Attracted by the stories of the fabulous wealth of India and fortified by the
adventurous maritime activity of the Elizabethan era, Englishmen were eager to
establish commercial contract with the east. The East India co. got a Charter from
Queen Elizabeth in Dec1600, which vested the management of the company in the
hand of a Governor and 24 members. The Charter granted to the Governor and Co.;
the power to make Ordain and constitute such laws, rules and regulations for the
good governance of the Co., but this power was limited. The Co. and Governor could
not make such laws, rules which were in contravention of English statutes and laws.
By the Royal Charter of 1698 the Governor and Council was authorized to exercise
civil and criminal jurisdictions and to maintain troops for their defense. Regulating
Act, 1773 raised the status of the Governor in Calcutta to Governor-General in Bengal
with four Councilors. Under the Governor and Council, there was a body of military
and civil servants. Warren Hastings was appointed as first Governor-General, the
tenure of the office of the Council was five years and they could be removed only by
the King on the recommendations of the court of Directors, the council was to take
decision by majority and the Governor-General could cast vote only in case of a tie in
the Council. Thus, Governor General of Bengal and his Council became the centre of
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power in India. They were exempted from arrest or imprisonment in any action in
any court.
The Charter Act of 1833 introduced significant changes and the designation of the
Governor-General of Bengal was raised to Governor-General of India. After the
mutiny in 1857 the Act of 1858 was passed which vested the Government of India in
the Crown. The Act of 1861 empowered the Governor-General to legislate by
Ordinances, and also empowers to make rules for the transaction of the business
which enabled Lord Canningx to introduce the portfolio system into the executive
council. This was the first step on the road to Cabinet Government. The Government
of India Act, 1919 brought significant changes and introduced the system of Diarchyxi
in the provinces. In new constitutional setup, the power of Governor-General raised
in the following matters:
i. His prior sanction was required to introduce Bills relating to certain matters.
ii. He had the power to veto or reserve for consideration of the Crown any Bill
passed by the Indian legislatures.
iii. He could have made Ordinances which has same effect as the law but for
temporary period in emergency.
iv. Where there is a dispute that subject was central or provincial it was the
Governor-General to decide not the court.
The Government of India Act, 1935 is regarded as the second milestone on the
Highway leading to a full responsible Government. It introduced provincial
autonomy. The Governor was now required to act on the advice of the Ministers
responsible to the legislatures. Even so, it placed certain special responsibilities on
the Governor, such as prevention of grave menace to the peace or tranquility,
safeguarding the legitimate interest of minorities and so on. The Governor could also
act in his discretion in specified matters. He functioned under the general
superintendence of the Governor-General, whenever he acted in his individual
judgment or discretion. The Constituent Assembly discussed at length the various
provisions relating to the Governor. Two important issues were considered. The first
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issue was whether there should be an elected Governor and the second issue related
to the extent of discretionary powers to be allowed to the Governor.
III. The Prevailing Constitutional Scheme
1. Appointment and Removal
There shall be a Governor for each state,xii provided that nothing in this Article shall
prevent the appointment of the same person as Governor for two or more states. xiii
The Governor of a State shall be appointed by the President by warrant under his
hand and seal.xiv Generally, the President selects a person for the Governorship of a
state on the advice of his Council of Ministers, in other words on advice of Central
Government and appoints him as a Governor, and he never use his discretion in this
regard.
THE MEMORANDUM on the principles of a provincial Constitution prepared and

circulated by the constitutional adviser on May 30, 1947, set out the general
constitutional framework for the Provinces.xv The memorandum provided two
alternate methods that the Governorxvi would be elected by the provincial Legislature
by secret ballot according to the system of proportional representation by means of
the single transferable vote. In making this suggestion Sir. B.N. Rau stated that in a
Constitution of unitary nature or in a federal constitution having unitary feature like
that of Canada, Provincial Governors could be appointed by the Central Government.
At a joint meeting of the Provincial Constitutional Committee and the Union
Constitution Committee on June 7, 1947, it was accepted that India should be a
federation with strong centre. As far as Governors were concerned the Committee
decided that they should not be appointed by the Central Government but chosen by
the Provinces. A proposal for appointment of Deputy Governor was rejected by the
committee. The second alternate which was favoured by some members in Drafting
Committee was appointment of the Governor by the President.
On June 9, committee discussed the question of Electoral College to be set up to elect

the Governor and a sub-committee consisting of B.G. Kher, K.N. Katju and P.
Subramanian was appointed to give their report on Electoral College.xvii The
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committee recommended that the member of Electoral College should be elected by

territorial constituencies at the time of each general election on the scale of one
elector for every 10,000 adults, and this college would continue till the new college
was constituted at the next general election. However, this suggestion of Electoral
College was rejected and the committee recommended that the Governor should be
elected directly by the people on adult suffrage basis.
The proposals of the Provincial Constitution Committee as approved by the

Assemblies were incorporated in the Draft Constitution prepared by Sir. B. N.
Rau.xviii This draft had twelve clauses dealing with the Governorxix and a schedulexx
consisting an instrument of instruction for the Governor. The Constituent Assembly
of India rejected the proposal for an elected Governor and substituted for it a
Governor appointed by the President, besides other things, in the interest of All
India Unity and with a view to encouraging centripetal tendencies and to make it
necessary that the authority of the Government of India should be maintained intact
over the Provincesxxi his post has been made nominative. Pundit Nehru also
supported this view on the ground that election of the Governor would encourage
provincial way of thinking. Finally, Constitution adopted that The Governor shall
hold office during the pleasure of the Presidentxxii and the term of the Governor is
prescribed as five years. But in actual reality the Governor is appointed by the
Central-Government which can select any person it pleases and send the name to the
President who has no other option but to appoint him.
2. The Raj Bhawan: A Sanctuary of Retired Party Loyalists and

Politicians Losing Election
From the plethora of examples, it is clear that active politicians are being appointed
as Governor. Sheela Dixit, Mr. Kalyan Singh, Mr. Ram Naik, Mr. Sunder Singh
Bhandari, Mr. Buta Singh, Mr. Sibte Raji, Mr. Sushil Kumar Shinde, Mr. Madan Lal
Khurana, Mr. S.M. Krishna all primary members of various political parties were
elevated to impartial and independent Constitutional post of the Governor. The
Constitution provides no specific qualifications for appointment of the Governor
except that he must be a Citizen of India and has completed the age of thirty-five
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years.xxiii In practice the only qualification seems political affiliations and loyalty
towards political party ruling at Centre. BJP opposed Jagmohans appointment as
Governor of J&K but later totally changed its outlook and Jagmohan was made
Union Minister under the Vajpayee Government. In nature and spirit, it has turned
to be more political than Constitutional. Governors enter into an unholy alliance
with the Centre; oblige the ruling party at Centre by faithfully executing its decisions;
embarrass the State Governments. As Nath Pai rightly observed that office of the
Governor has been regarded by the Centre for its patronage and largesse.xxiv
Change of Governor became ritual with the change in government at Centre. The
survival of the Governor as an institution is crucial but, sans functional good
behaviour, his trespasses may prove fatal. The folly begins with the choice for the
high and delicate office.xxv
3. Considerations Governing the Choice of Governor
The observation made by Jawahar Lal Nehru in the Constituent Assembly is worth
mentioning: I think it would be infinitely better if he (the Governor) was not so
intimately connected with the local politics of the province, with the factions in the
provinces. He must be acceptable to the province, he must be acceptable to the
Government of the province and yet he must not be known to be a part of the party
machine of that province. He may be sometimes, possibly, a man from that province
itself. We do not rule it out. But on the whole, it probably would be desirable to have
people from outside, eminent people, sometimes people who have not taken too great
a part in politics. Politicians would probably like a more active domain for their
activities but there may be an eminent educationist or persons eminent in other
walks of life,he would nevertheless represent before public someone slightly
above the party and thereby in fact, help that Government more than if he was
considered as part of the party machine.xxvi Further the Rajmannar Committee,
dealing with the Governors office, besides other recommendations stated: the
Governor should be ineligible for a second term in office and he should be
removable only for proved misbehavior or incapacity after inquiry by the Supreme
Court. He should always be appointed by the President in consultation with the
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State Cabinets or alternatively in consultation with a high-powered body specially

constituted for this purpose.xxvii
The Sarkaria Commission recommended that a person to be appointed as a Governor

should satisfy the following criteria: He should be eminent in some walk of life; he
should be a person outside the state; he should be a detached figure and not too
intimately connected with the local politics; he should be a person who has not taken
too great a part in politics generally, and particularly in the recent past, and in
selecting a Governor in accordance with the above criteria minority should be given a
chance as hitherto. The Commission also recommended that a politician from the
ruling party at the Union is not appointed as Governor of State which is being run by
some other party or a combination of other parties.
The National Commission to Review the Working of the Constitution, in its report
recommended that in the matter of selection of a Governor, the Sarkaria
Commissions suggestions must be kept in mind.xxviii The Administrative Reform
Committees (ARC) study team headed by M.C. Setalvad had gone a step further: no
person who is appointed Governor should take part in politics after his
appointment as such; not even after retirement.xxix The Governors Committee also
stated that person should be well-known and respected for his integrity and
competence. There is no room for old and dilapidated politician, civil servants and
judgesxxx to be made Governors, to provide to them comfortable living at the end of
their lives, or to make troublesome politicians Governor either to satisfy them or to
keep them away from causing mischief in their home states.xxxi
[a]. Process of Appointment
Sarkaria Commission recommended;xxxii that in order to ensure effective consultation

with the state Chief Minister in appointment process, the procedure of consultation
should be prescribed in the Constitution by suitable amendment in Art.155. The Vice-
President of India and the Speaker of the Lok Sabha may also be consulted by the
Prime Minister in selecting the Governor. The consultation should be confidential.
Besides above the process President should also take advice from the Inter-State
Council.
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[b]. Process of Removal
A Governor shall hold office for a term of five years from the date on which he enters
upon his office,xxxiii but subject to the pleasure of the President. Here two questions
arise, first, whether this power of the President to remove the Governor is unfettered
power and he may remove a Governor even if he does not like his face or food.xxxiv
Second question is that whether in fact this power belongs to the President or Central
Government. In present practice power of pleasure is in fact the pleasure of the
Prime Minister and removal of the Governor has become easier than the removal of a
peon. In Surya Narain v. Union of Indiaxxxv Rajasthan High Court validated the
dismissal of the Governor by the President (in fact, by Indira Gandhi) only because
he had been appointed by the Janata party Government. Another example which
shows the misuse of this power was evident when on advice of National Front Prime
Minister V.P. Singh, the President asked all the Governors to resign, only because
they were appointees of previous Government.
On Art.156 Dr. Ambedkar said in the Constituent Assembly on 31st May 1949:
This power of removal is given to the President in general terms..it

seems to me that when you have given the general power, you also
give the power to President to remove a Governor for corruption, for
bribery, for violation of the Constitution or any other reason which
the President no doubt feels is legitimate ground for the removal of the
Governor. It seems, therefore, quite unnecessary to burden the
Constitution with all these limitations stated in express term when it is
perfectly possible for the President to act upon the very same ground
under the formula that the Governor shall hold office during his
pleasure. I, therefore, think that it is unnecessary to categorize the
conditions under which the President may undertake the removal of
the Governor.xxxvi
The language of above statement makes it clear that he can act on the basis of his
individual judgment without the Prime Ministers advice, but unfortunately the
President never wants to do so. This position should be changed. L.P. Singh
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suggested that: functioning with the apprehension of dismissal or transfer

without his willing consent may make it difficult for the Governor to function with
complete impartiality and as an independent constitutional authority.xxxvii
[c]. Oath of the Governor
Every Governor and every person discharging the function of the Governor shall,
before entering upon his office, make and subscribe in the presence of the Chief
Justice of the High Court, an oath or affirmation to the best of his/her ability
preserve, protect and defend the Constitution and the law.xxxviii In fact all powers of
the Governor flow from this provision. Ancient Indian Rajdharma had similar
practice of taking oath which was called the coronation ceremony (pattabhishekha)
of the King.xxxix Fatefully this practice is confined to a mere ritual without any legal or
constitutional consequences.
[d]. Immunity
The President and the Governor has been given immunities while exercising their
powers under the Constitution. The President or the Governor shall not be
answerable to any court for the exercise and performance of the powers and duties of
his office or for any act done or purporting to be done by him in the exercise and
performance of those powers and duties.xl But under the proceeding of
impeachmentxli the conduct of the President can be investigated and reviewed by any
court appointed and designated by any of the House of the Parliament. No criminal
proceedings or arrest process shall be instituted in any court against the President
and the Govenor during his term.xlii Further under Art. 361 (4) immunity from civil
proceedings has been provided. In the Constituent Assembly, Mr. H.V. Kamath
raised (on 8th Sept1949) a question with reference to Art.361 (2) that whether the
head of the State has no liability for any criminal act committed by him during his
term,xliii but it was not clarified by Dr. Ambedkar. However, it appears that the
President and Governor have immunities only for constitutional acts or acts done in
the performance of his duties and not above and beyond that. If we read Art.154 (1) it
specifically states the executive power of the state shall be vested in the Governor
and shall be exercised by him either directly or through officers subordinates to him
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in accordance with the Constitution. (italics supplied). We find that the power given
to the Governor is exercised by him only in accordance with the Constitution and not
beyond that, therefore, immunity available to him is only for and during the
performance of his duties and not otherwise. This was perhaps the reason why Indira
Gandhi dropped the Fortieth Amendment Bill to provide absolute immunity to the
President, the Prime Minister and the Governors from Criminal liability. Any such
provision would be violative of Rule of Law which is one of the basic features of the
Constitution. In a case Bombay High Court decided that decision taken by a
Governor in his sole discretion is liable to get immunity of Art. 361 but if he acts
malafide the President can take action against him. xliv The Madras High Court
expressed its view that by taking Art.154, 163 and 161 (1) collectively, we find that the
Governor will be answerable to any Court regarding the functions exercised by him in
his discretion or on the advice of ministers.xlv
IV. Powers and Functions of the Governor
The powers of the Governor of a State are analogous to those of the President
excepting that the Governor has no diplomatic military or emergency power. The
powers of the Governor can be classified as under:
[a]. Executive Powers
The executive power of the state is vested in the Governor and is to be exercised by
him directly or through officer subordinate to him. xlvi It further says that the
executive power of the state extends to matter with respect to which the legislature of
the state has power to make law.xlvii All executive actions of the State shall be
expressed to be taken in the name of the Governor and shall be subject to the
Constitution and law made by the Parliament. Executive power is an indefinable
multidimensional and constitutional concept varying from time to time, from
situation to situation and with the changing concepts of state in political philosophy
and political science. Platos or Aristotles executive power, the Roman executive
power, Rousseaus, Lockes or Montesquieus executive power are not the executive
power of the modern state. xlviii The definition given by Indian Court is that executive
power is a residuary power after subtracting legislative power and judicial power.
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Executive power is nothingxlix but the the whole state in action in its manifold
activities. In other words, without executive power the legislative power and judicial
power cannot be effective. The Allahabad High Court in one case l decided that
legislative authority is not necessary for every executive act. Executive power means
something more than merely executing the law.
[b]. Power to Grant Pardon
The Governor of a state shall have power to grant pardons, reprieves, respites or to
remit or commute the sentences of any person convicted of any office against any law
relating to a matter to which the executive power of the state extends li. If we compare
the power of the Governor to the power of the President, Governor has concurrent
powers in respect of suspension, remission and commutation of a sentence of death.
But the Governor has no power to grant pardon where the sentence is death, because
Art. 72 (3) expressly says that nothing in sub-clause (c)lii of clause (1) shall affect
the power to suspend, remit or commute a sentence of death exercisable by the
Governor of a state under any law for the time being in force (the word pardon is
missing here). Governor can exercise this power at anytime. The power is exercised
by the Governor in exercise of his executive power and not the judicial power. In
Tara Singh v. Directorliii Punjab High Court decided that there is no obligation to
hear the parties concerned before rejecting or granting a mercy petition. In another
important caseliv the Supreme Court stated that the power to suspend a sentence by
the Governor under Art. 161 were subject to the rules made by the Supreme Court
with respect to cases which were pending before it in appeal. The order of the
Governor could only operate until the matter became sub judice in the Supreme
Court and it did become so on the filing of the petition for special leave to appeal.
After the filling of such a petition and till the judicial process is over the power of the
Governor cannot be exercised. Whereas, in Maru Ram v. Union of India,lv the Court
held that this power should be exercised by the Governor only on the advice of the
Council of Ministers and not independently. But in my opinion it altogether is a
wrong decision.
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[c]. Ordinance Making Power
The Governor has ordinance making powerlvi as the President of India.lvii Art. 213
provides that the Governor can issue Ordinances when two conditions are satisfied-
i) when legislative Assembly (or where there are two Houses both the Houses) is not
in session; and ii) the Governor must be satisfied that situation exists which render it
necessary for him to take immediate action. Proviso of Article 213 reserves some area
for the President, where the Governor cannot promulgate an Ordinance without
instructions of the President:
When a Bill containing same provision is required to take assent of the

President before introducing in legislature;
He would have deemed it necessary to reserve a Bill containing the same

provision for the assent of the President; or
An act of the legislature of the state containing the same provision would
under this Constitution have been invalid unless having been reserved for the
consideration of the President; it had received the assent of the President.
The maximum life of an Ordinance may be seven and a half months unless it is
replaced by an Act or disapproved by the resolution of the legislature before that
period. In State of Punjab v. Sat Pal Danglviii Supreme Court held that it is only the
Governor who has got to satisfy himself as to existence of circumstances and
necessity, and the existence of such necessity is not justifiable in any court. An
ordinance cannot be declared void for the reason of non-application of mind or
malafide.lix The Constitution does not provide any express or implied provision for
re- promulgation of ordinances and because of this, the Governor (in fact the
Government of state) many a times ridicule this power. What happened in Bihar is a
glaring example of Constitutional impropriety, where the Governor of Bihar issued
56 Ordinances on a single day on Jan 18, 1976.lx Whenever any power is given to any
body or person it is expected from him that it will be used in good faith. Our
Constitution expects legitimacy not only legality. In D.C. Wadhwa v. State of
Biharlxi a constitution bench held that the Ordinance making power cannot be use as
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a substitutive of law making power. It is extra-ordinary power given to the Governor

and must be exercised in accordance with the spirit of the Constitution. As Julius
Paulus puts it, One who does what a statute forbids, transgresses the statute; one
who contravene the intention of a statute, without disobeying its actual words,
commits a fraud on it.lxii Recently, a seven-judge Constitution Bench of the Supreme
Court in Krishna Kumar Singh v. State of Biharlxiii once again reaffirmed that the
requirement of placing the ordinance before the Legislature is mandatory and re-
promulgation of ordinances is a fraud on the Constitution and a subversion of
democratic legislative processes.
[d]. Other Important Functions
Constitution of India assigns many functions on the part of the Governor such as:
o The Governor of each state shall appoint a person, qualified to be appointed as

a judge of High Court, as the Advocate General of the State. lxiv
o The Governor shall make rules for the more convenient transaction of the
business of the Government of the state and for the allocation among the
Ministers of the said business.lxv
o The Governor shall from time to time summon the House, prorogue the
House and dissolve the Legislative Assembly.lxvi
o The Governor may address the Assembly.lxvii
o The Governor may send message to Houses with respect to a Bill then pending
in the legislature.lxviii
o The Governor shall address the House at the commencement of first session of
each House.lxix
[e]. Discretionary Powers
Since the Governors are required to act in dual capacity one, as the executive head of
the state and two, as the nominee of the President in cases of national emergency or
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failure of constitutional machinery in the state, his responsibilities increase

manifolds where he would be required to take decisions on his own irrespective of
what his Council of Ministers advice. Thus, even though in normal conditions the
exercise of the Governors powers should be on the advice of the Council of Ministers,
occasions may arise when the Governor may find that, in order to be faithful to the
Constitution and the law and his oath of office, he has to take a particular decision
independently.lxx If any question arises whether any matter is or is not a matter as
respects which the Governor is by or under this Constitution required to act in his
discretion, the decision of the Governor is his discretion shall be final and it shall not
be challenged on the ground that he ought or ought not to have acted in his
discretion.lxxi
To act in his discretion
These words used in Art-163 clearly show that the Governor of a state has
discretionary powers under the Constitution in respect of which he is not required to
consult his Ministers. These powers are not available even to the President of India,
thus in this regard position of the Governor is stronger than the President. But the
Constitution does not provide any exhaustive list with respect to which the Governor
is to act in his discretion. In Shamsher Singh v. State of Punjablxxii Supreme Court
pointed out some area where the Governor can use his discretion:
o Art. 371 A (1) (b) and (d) and (2) (b) and (f).
o Schedule VI, Para 9 (2) and 18 (3).
o Art. 239
o His report to the President under Art. 356.
o Reservation of any Bill for the consideration of the President under Art.200.
A. N. Ray C.J. said that baring the express provisions where it is mentioned that the
Governor can exercise discretionary powers, in all other matters where the Governor
acts in his discretion, he will act in harmony with the Council of Ministers. But in my
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opinion the phrase to act in his discretion confers much more discretionary powers
on the Governor to act in his discretion with respect to any matter. He can take a
decision on any matter without even informing the Council of Ministers. The
provisions made under Art. 163 (1) and (2) are borrowed from the Government of
India Act, 1935. But one peculiar feature of he Governors discretionary powers may
be noticed under the Government of India Act, 1935, the Governor had to act in
subordination to the Governor-General of India in exercise of his discretionary
powers and Governor General himself was the officer subordinate to the Secretary of
State for India (ultimate responsibility). But in proposed Constitution there was no
proposal to make the Governor responsible to any one for the exercises of
discretionary powers. Originally these discretionary powers were given to the
Governor for the prevention of grave menace to the peace and safeguarding the
interest of minorities. But subsequently these powers were extended in all the
matters. The Constituent Assembly made some changes and the discretionary power
became exercisable not for certain purposes but in relation to certain specific
functions. The Draft Constitution specified the following discretionary powers:
o Appointment and dismissal of his Ministers;lxxiii
o Summoning, prorogation and dissolution of the Assembly;lxxiv
o Power to refuse the Bill for reconsideration;lxxv
o Superseding his Ministers and take over executive function in an emergency;

[Art. 188].
o Appointment of the Provincial Auditor in Chief [Art. 188].
o Appointment of the Chairman and members of the Public Service Commission

[Art.285].
o Besides this, the Governor of Assam had some discretion in matter relating to
administration thereof.
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Dr. Ambedkar categorically stated that the Governor would not exercise any function
in his discretion and that according to the principles of the Constitution he would be
required to follow the advice of his Council of Ministers.lxxvi The provisions relating to
discretionary powers were considered by the special committee on April 10 and 11,
1948.lxxvii The Committee was of opinion that where we are accepting the nominated
Governor and not elected, thus above reference of discretionary powers should be
omitted from the Draft Constitution. But no amendment was suggested by the
Drafting Committee in Draft Art. 143 and the reference to the Governor exercising
certain functions in his discretion remain intact. Administrative Reform Committee
described following functions as discretionary functions of the Governor:
Appointment of Chief Minister; Dismissal of a Ministry; Dissolution of Assembly;
Right to advice, warn and suggest; Give assent or withholding assent from a Bill;
Statutory functions i.e. functions given under some statute; Discretionary powers of
the Governor of Assam.
On analysis, we find that the Governor has discretionary powers to be used in his
own discretion. Here discretion means choosing amongst the various available
alternatives but with reference to the Constitution, rules of reason and justice and
not according to personal whims. It should not be arbitrary. Power of Governor such
as; power to appoint and remove Chief Minister, assent to Bills or reserve a Bill for
consideration of the President and sending report under Article 356 would come
under this purview. However, these powers must be exercised subject to some
guidelines prescribed by the various Committees especially the Sarkaria Commission
or decisions of the Supreme Court.lxxviii
V. Governor and His Council of Ministers
There shall be a Council of Ministers with the Chief Minister at the head to aid and
advice the Governor in the exercise of his functions except in so far as he is by or
under this Constitution required to exercise his function or any of them in his
discretionlxxix(Italics supplied). Note that the term used is function and not power.
The phrase by or under the Constitution means that the need to exercise
discretionary may arise from any express provision of the Constitution or by
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necessary implication. The Governor being the head of the executive appoints the
Chief Minister and the other Ministers are appointed on his advice, and they hold
office during the pleasure of the Governor.lxxx Yet, as a matter of fact, the pleasure of
the Governor is either pleasure of the Chief Minister or Union Government as the
case may be. The Governor remains a figurehead and real executive power was
transferred to Council of Minister/Cabinet or Chief Minister alone.
[a]. Appointment of Chief Minister and other Ministers
It is clear from the above discussion that so far as the text of the Constitution is
concerned the appointment of the Chief Minister is to be made by the Governor in
his discretion, but this legal position does not disclose true picture. The very concept
of collective responsibility borrowed from the British Constitution makes it clear that
the discretion of the Governor is very much conditioned by the party position in the
House and therefore, it appears highly legislative to say that the decision of the
Governor in appointing the Chief Minister is final and based entirely on his
unfettered judgment.lxxxi
Theoretically speaking-under Art.164 (1) of the Constitution the Appointment of the

Chief Minister is made by the Governor in his own discretion and the exercise of his
own discretion cannot be questioned in any court of law.lxxxii But practically the
position is something different. If the Governor exercise his discretion in such a way
that he does not appoints a Chief Minister from the party which has majority in
house, it would be violative of the spirit of the Constitution. Therefore, the
Governors discretion has no sense when a party has majority in the House.
However, in present situation where no political party gets absolute majority, how
the Governor in appointing the Chief Minister decides whether the person he is
going to appoint enjoys the confidence of the House? Different Governors have used
different methods: the first controversy occurred in 1952 in Madras after first
General elections.lxxxiii The Governor, Shreeprakash invited C. Rajgopalachari to form
a Government on his own discretion. But Rajgopalachari was not elected as an
MLA.lxxxiv Therefore the Governor nominated him to upper house, and he got
majority. lxxxv Prime Minister Nehru and President Rajendra Prasad did not want
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Rajgopalachari to become the Chief Minister, Nehru wrote to Rajagopalachari that

the one thing we must avoid is giving the impression that we stick to office and
that we want to keep others out at all costs.lxxxvi
This doctrine applied by the Governor of Madras (i.e. Sreeprakash doctrine) has been
pursued in many states- i.e. PEPSU in 1952, Andhra in 1953, Orissa in 1957. but
some Governors did not follow this doctrine, as in 1961 in Kerala and in 1962 in
Orissa, they recognized the coalition Government. The discretion of the Governor in
this regard has made his position very controversial specially in the era of coalition
governments. The discretion has been abruptly used by the Governors from past in
case of Rajasthan to present in case of Arunanchal Pradesh, the Governors discretion
provided large opportunity for the centre to enforce its will in the state.
Various Committees and Commissions have made certain recommendations while

choosing a Chief Minister, particularly the Sarkaria Recipe, which provide for
following considerations;
a) The party or combination of parties which commands the widest support in

the Assembly should be called upon to form the Government;
b) His task is to see that a government is formed and not to try to form a
Government which pursues policies which he approves;
c) If there is a single party having absolute majority the Governor must ask the
leader of that party to form Government;
d) If there is no such party, the Governor should act in order of preference as

given:
i. Pre-poll alliance;
ii. The single largest party staking a claim to form a Government with the
support of others including independents;
iii. A post-electoral alliance with all partners joining the Government;
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iv. A postelectoral alliance with some joining the Government and some
parties supporting from outside; and
v. The Governor while going through the process described above should
select a leader who in his opinion is most likely to command the
majority in the Assembly.
Besides, person so selected should be called to prove its majority within 30 days on
the floor of the House, and only there.
[b]. Dismissal of State Ministry
The ministers hold office during he pleasure of the Governorlxxxvii and withdrawal of
such pleasure is a matter entirely in his discretion and the Council of Minister is
collectively responsible to the Assembly,lxxxviii if we go by the literal meaning of the
provision of the Constitution we can say that the Council of Ministers is expected to
serve two masters, the Assembly and the Governor at a time. Till 1967 no Chief
Minister or Council of Minister had been dismissed because of the single reason that
up to 1967 there was one party rule both in centre and states as well. On the contrary
the Governor was recalled if the Chief Minister felt annoyed with himlxxxix. After
fourth general elections, the story begins and the first casualty was Ajoy Mukherjee,
leader of U.F. Government in West Bengal in 1976. The political situation had
become uncertain due to the defection of P. C. Ghose and 12 other members. The
Governor Dharam Veera Dismissed Ajoy Mukherjee and appointed P.C. Ghose as the
Chief Minister. It created a great furor, M.C. Chagla condemning the act said, in my
opinion if the Governor is satisfied that the Chief Minister has lost the confidence of
the legislature he should ask him to convene a meeting of the legislature
immediately and if he fails to do so he should convene it himself under Art. 174.
Another example of dismissal of a Chief Minister by the Governor was in Uttar
Pradesh when Gopal Reddy dismissed Charan Singh. Further in 1998 for the first
time in the constitutional history there were two Chief Ministers in the Assembly
seeking vote of confidence as a result of dismissal of Kalyan Singh Ministry by the
Governor Romesh Bhandari without any valid excuse.xc
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Thus, as to dismissal of a Chief Minister and his Government there was a good deal
of agreement that the Governor could dissolve the Assembly only on the advice of the
Chief Minister and that question about a ministrys majority should be established on
the floor of the House, and not by the extra legislative players.
The Sarkaria Commission, Rajmannar Committee, Bangalore Seminar and the

Administrative Reform Committee and Governors Committee agreed on this point.
The conference of the presiding offices of Legislative Assemblies resolved that a Chief
Ministers in loss of confidence shall at all times be decided in the Assembly.
[c]. Dissolution of State Assembly
Dissolution of State Assembly is another area where the Governor exercises his
discretionary power. The dissolution as contemplated in the Constitution can be of
two types firstly a normal dissolution envisaged under Art. 174 (2) (b) and secondly;
a dissolution leading to emergency under Art. 356. A simple reading of Article 174 (2)
(b) will suggest that dissolution of the legislative Assembly is a discretionary power
of the Governor.xci In exercise of his discretion he can dissolve the Legislative
Assembly even sooner than the completion of the term if the exigency of
circumstances requires. The decision, in his discretion is final and the validity of
anything so done by him shall not be called in question as to whether he ought to
have acted in the manner or not, the acts done by him in performance of his duties
are also protected from the scrutiny of courts under Art.361. However, dissolution
under Article 356 puts an end to the State machinery and Presidents Rule is imposed
where the Governor rules over the State as a Central Agent and therefore, rightly
called by K.V. Rao as Abrogation and not dissolution.
Sarkaria Commission holds that if the Ministry enjoys clear majority in the Assembly
and recommends dissolution to seek out fresh mandate, the Governor must accept
this advice. But a ministry having no support of majority or appears to have lost
majority, it should be asked to face test on floor. If a ministry is voted out and no
alternative emerges the Governor may dissolve the House or recommend Presidents
rule and leave the question of dissolution to the decision of the Central Government,
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but if decides to dissolve the Assembly, he should consult leader of the political party
and also the Chief Election Commissioner.xcii
[d]. Assent to Bills
The power to give assent to Bills under the Constitution is provided under Art. 200
which says that any Bill passed by both the Houses of the Assembly shall be sent to
the Governor for his assent, where he has wide discretion either to:
a) Declare his assent; or
b) Withhold his assent; or
c) He may refuse the bill for reconsideration if it is not a money Bill; and
d) He may reserve the bill for the consideration of the President.
Here Sakaria Commissions recommendation is very significant and must be

followed by the Governors, normally under Art. 200 Governor must abide by the
advice of Council of Minister. Art.200 does not invest the Governor expressly or by
necessary implications with a general discretion in the performance of his functions
there under, including reservation of Bill. But if Governor finds that the Bill is
patently wrong and unconstitutional, he may reject the Bill and for this purpose he
has an officer named Advocate General to give him advice on legal points. It is
mandatory on the part of the Governor to check the constitutionality of the Bill
because he takes oath to preserve protect and defend the Constitution.
A question arises as to whether the Governor have any power to veto the Bill or not,
the confusion really arises because Art.200 does not gives any time limit for giving
assent to the bills and thus if the Governor keeps the Bill without giving his assent for
long time may amount as exercising veto. But in my opinion he cannot do so, as
constitutional legitimacy warrants him to give assent to the Bill within a reasonable
time and if he is found to be working arbitrarily he may be removed from his office
by the President for not following constitutional requirement.
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[e]. Reservation of Bills for the Assent of President
Another controversial discretionary power of the Governor -the rationale behind this
is to sub serve the broad purpose of co-operative federalism in the realm of the
union-state relation. They are designed to make our system strong, viable, effective
and responsive to the challenges of a social order. They are necessary means and
tools for evolving cohesive, integrated policies on basic issues of national
significancexciii and to avoid repugnancy with Union laws. But in practice this
provision is being used as a device to interfere with the state Government. The
statistics given by Sarkaria Commission is, during 1977 to 1985 the Governor
reserved 1130 Bills, in which 1039 were assented by the President and in 31 instances
he withheld the assent, returned five bills for reconsideration and 55 were still
pending as on November 22, 1985.xciv Commission also suggested that needless
reservations should be avoided, and to reduce delays the presidential disposition of
Bills sent for consideration should be done with in four months of their receipt.xcv
VI. Status of the Governor
The position of the Governor is the same as the position of the President, Dr. B. R.
Ambedkar, Chairman of Drafting Committee authoritatively declared in the
Constituent Assembly on 30th Dec1949.xcvi Dr. Ambedkars statement was in reply to
a pointed interruption by a member, Mr. Mohd. Tahir, when describing discretionary
powers of the president, He asked, how will it explain the position of the Governor
and the minister of the states where discretionary power have been allowed to be
used by the Governor? Dr. Ambedkar very categorically replied dispelling the
impressions that as constitution head of the State, the Governor enjoys greater
powers. than the President.
Before 1967 the position of the Governor was not discussed in the political field
because except the State of Kerala there was Government of Congress party through
out the country. It becomes necessary to evaluate the actual position of the Governor
when Congress (I) politicians, kicked upstairs as Governor, misbehaved with the
state Governments to win back a position at the centre and once the story begin, it
continues till today. Every Central Government is using the office of the Governor as
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an Employment under the Central Government, and by this they try to control the
state Government (of another party). Therefore, Hegde called Governor as glorified
servant of the Central Government.xcvii If we go through the Constituent Assembly
Debate, we find that the objects behind the establishment of the office of the
Governor were two-fold. First, the Governor had to perform as a constitutional head
of the state, and second, he was the appointee of the President. The spirit behind this
was, as a constitutional head of the state the Governor will act for the welfare of the
people and if the Centre Government is not taking due care of the state then he will
represent the position of the state before Centre. But as an appointee of the President
he will keep control over the state Government and to ensure that the State
Government is going on according to the provision of the Constitution. K. M.
Munshi, Member of Constitution Drafting Committee and one time Governor of
Uttar Pradesh expressed the position of the Governor, Governor is the watchdog of
the constitutional propriety and link which binds the state to the centre, thus
securing Constitutional unity of India.xcviii None of the members expected Governor
as autocrat but they were of the view that he should be invested with enough power,
for maintaining of standard of the Government. B.N. Rau recommended for
discretionary powers of the Governor. The view of Rau was discussed in the
Provisional Constitutional Committee, Patel expressed that investing Governors with
discretion is not invasion of ministerial responsibility. He could report of grave and
emergency-situation of the State to the President.xcix H. V. Kamath moved an
amendment for deleting of discretionary powers, of the Governor.c But Ambedkar
held that retention of discretionary power is not against responsible Government.
The IVth Schedule to the Daft Constitution contained instrument of Instruction for
Governors was never adopted. Dr. P.K. Sen said the function of the Governor shall
be to lubricate the machinery of Government, to see that all the wheels are going
well by reason not of his interference but of his friendly intervention.ci
These all show that the Governor is not going to be a mere figure-head, the Supreme
Court in 1979 well stated that, the Governors office is not subordinate or
subservient to the Government of India. He is not amenable to the directions of the
Government of India, nor he is accountable to them for the manner in which he
caries out his functions and duties.cii But in present scenario the Governors role has
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been quite changed in respect of the scheme of the Constitution, unfortunately, some
Governors have not come upto the level at all, which is expected by the Constitution
and exists merely as a figure-head, on the other hand some have exceeded their role
by working as agent of Central Government. Both role played by the Governors are
never intended by the Constitution or its makers, and is even insulting to the
institution of Governor.
Our Supreme Court has analyzed twice the actual status of the Governor in the
Constitutional scheme but unfortunately failed in doing so. In Ram Jawaya Kapoor
v. State of Punjabciii Supreme Court held that our Constitution has adopted the
British system of Parliamentary model and the basic feature of this model is that the
President and Governors are Constitutional heads and the real executive powers are
vested in the Council of Ministers, same claptrap proposition is endorsed by the
Supreme Court again in Samsher Singh v. State of Punjab.civ We have plenty of
examples where the Governors have acted as spineless creatures and a puppet in the
hand of state Government or the Central Government. But the Governor never
realized the significance of this institution and he did not get courage to say that he is
not a figure head for state Government nor as a Central spy to play politics.cv Sarkaria
Commission remarked on the status of Governor, the Governor is the linchpin of the
constitutional apparatus of the state, his role has emerged as one of the key issues in
Union-State relations and he has been criticized for want of impartiality and
sagacity, and for being used by the Central Government for its own political ends.
Thus, it is enough to say that the Governor has definite powers under the
Constitution. He is not the servant of the President. He takes the oath to preserve
protect and defend the Constitution and therefore he has a very fundamental status
under the Constitution.
VII. Conclusion
The Constitution of India was framed under the dark shadow of events like, the war
in Kashmir, the Communist insurrection in Telangana, the Razakar menance in
Hyderabad and the adverse postures of recalcitrant princes, which had apparently
threatened the very survival of new Republic and these events had inevitably a
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catalytic effect on the framing process of new constitution. Averting the danger of
disintegration, the framers shifted from a tight federationcvi to one with a
Paramount Centre. Marked with growth of sectional loyalties in the heterogeneous
Indian Society, the political homogeneity was counter-balanced with the help of the
Centripetal forces. Partly based on parliamentary sovereignty, partly on judicial
supremacy, partly unitary and federal pattern, partly rigid and flexible, the India
constitution attempted to incorporate them in a single frame-structure for India, in
which the office of Governor was designed as a political necessity.cvii It was a symbol
of unity, coordination and cooperation between the Centre and the States. However,
since inception the Governors role was misunderstood and under-estimated and
they almost became unsolicited ceremonial Head. In our constitution, the divisions
of roles are clearly preserved, and there is no role conflict at all as the Head of the
State and as the so-called agent of the President. But a lot of confusion is created
around this office by over-enthusiastic Governors, our Honorable Courts and
misguided commentators.
Now the time has come when the Governor must understand his role properly in the
context of the Constitution that he is presiding over the destinies of the State as its
constitutional head, in a democratic federation. There are certain situations where he
must exercise his discretion; but the discretion must be his own, objectively
formulated and based upon full appreciation of facts, and irrespective of fear or
favour. The Governor should bear in mind that he should not only be useful and
impartial, but also must appear to be so. In May 1979, a constitution bench of the
Supreme Court unanimously and categorically ruled that the appointment of the
Governor by the President and his holding office during the pleasure of the President
does not make Government of India and employer of the Governor. The Governor is
the head of the State and holds a high constitutional office which carries with it
important constitutional functions and duties and he cannot, therefore, even by
stretching the language to a breaking point, be regarded as an employee or servant of
the Government of India. The Supreme Court further observed, It is impossible to
hold that the Governor is under the Control of the Government of India. He is not
amenable to the directions of the Government of India nor is he accountable to them
for the manner which he carries out his functions and duties. He is an independent
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constitutional office which is not subject to the control of the Government of

India.cviii These weighty observations of the Supreme Court should be prominently
inscribed in every Raj Bhavan in the States. On the concluding day of the proceedings
of the Constituent Assembly on 25 November 1949, member after member including
Dr. Rajendra Prasad echoed that success of a Constitution, even of the most
meticulously written, will depend not so much on its language as on the spirit in
which it is worked. It depends on us, the people, to make it or mar it.cix Is it utopian
to expect that the ideals and aspirations expressed by Rajen Babu may yet be
fulfilled? But, a map of the world that does not include Utopia is not worth even
glancing at, for it leaves out the one country at which Humanity is always
landingProgress is the realization of Utopias.cx Sarkaria Commission
recommendations with respect to the choice of governor, appointment, removal and
working of governor must be given effect to save this endangered office.
References:
* Author is Associate Professor of Law at National Law University Odisha and currently on deputation
as Deputy Registrar (Research) in the Supreme Court of India and may be contacted at
yogeshpratap@gmail.com.
i V. R. Krishna Iyer, A Constitutional Miscellany, [Eastern Book co. Lucknow, 2nd edn,2003], p.26.
iiFourth general elections were held in 1967, which radically transformed the Indian political scenario.
The Congress monolith which for so long has dominated the Indian Political landscape, has been
badly cracked but not shattered. The erosion of congress strength had been apparent. It was reflected
in wholesome defections, internal factionalism, growing alienation of influential elements in Indian
society. See for details Norman D Palmer, Indias Fourth General Elections, Asian Survey, Vol. 7, No. 5
(May, 1967), p. 275, http://www.jstor.org/stable/2642657.
Indian independence activist and poet, Sarojini Naidu, was famously called the Nightingale of India
iii
or Bharatiya Kokila. She became the first woman of India who hold the office as a governor of Uttar
Pradesh during 1947-49.
iv A freedom fighter, member in the Constituent Assembly, member of Rajya Sabha and
the Governor of Madhya Pradesh from 1952 to 1957.
v Soli. J. Sorabjee, The Governor, Sage or Saboteur, Roli Books International, 1985, p.33.
viShibranjan Chatterjee, Governors Role in the Indian Constitution. [ Mittal Publications, New Delhi,
1992], p. 2.
President Rule was imposed in State of Uttarakhand by the Union Government hardly 36 hours
vii
before the scheduled floor test, because the Speaker had refused a division of votes on the Money Bill
despite a request from the majority 35 MLAs (26 BJP MLAs and nine Congress rebels) in the House
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on March 18 and therefore congress government was in minority in the house and the chief minister
of Uttarakhand was allegedly involved in horse-trading. The emergency clouded the authority of the
Speaker as well as prevented the holding of the floor test on March 28. High Court of Uttarkhand at
Nainital questioned the power of Union Government and quashed the President Rule in State restored
the Harish Rawat-led Congress government. A division bench of Justices Dipak Misra and Shiva Kirti
Singh admitted the Centres challenge to the High Court decision and brought back Presidents rule
with a condition that Centre will not ploy to install a BJP government in the State. This was done by
the apex court for the reason that the judgment of High Court was not yet available in the public
domain.
The bench of Supreme Court finally ordered to conduct a floor test to be monitored by the top court
delegated key executive officer in the state in order to test whether unseated Harish Rawat enjoys
confidence of majority votes on the floor of the House. Finally, the Supreme Court stamped the
successful floor test where Rawat gets 33 votes and reinstated Mr. Rawat as chief minister of
Uttarakhand. The Supreme Court in this process condemned the role played by the Governor which
once again dented the institution.
See Nabam Rebia & Bamand Felix v. Bamang Felix Deputy Speaker & Others, C.A. No. 6203-6204
viii
of 2016, arising out of SLP Nos. 1259-1260 of 2016. The constitutional bench of the Supreme Court
restored in an unprecedented decision the Congress Government after six months of its dismissal. The
court declared all the actions of the Governor Mr. Jyoti Prasad Rajkhowa that led the imposition of
President Rule and later the formation of a new government led by BJP supported congress
breakaway faction.
ix Soli. J. Sorabjee, The Governor, Sage or Saboteur, Roli Books International, 1985, p.31.
x Governor-General of India from 1856 to 1862.
xi Diarchy has been derived from the Greek word Di-arche means double role.
xii See Art.153.
xiii See the constitutional (Seventh Amendment) Act, 1956, sec. 6.
xiv See Art.155.
xv Select documents II, 21 (ii), pp.632-41.
xvi
In USA, the Governor of a State is directly elected by the people of State. The federal Government
has nothing to do in the matter.
In Canada Lieutenant-Governors of Canadian Provinces are appointed by Governor-General in

Council acting with the advice of Dominion Ministry; Sec. 58 of the BN Act takes away the prerogative
of the British Crown to appoint Lieutenant-Governor.
In Australia, the Governor of a State in Australia is appointed by the Crown on the advice of the
British Cabinet, who however, in practice, consults the Prime-Minister of the said State.xvi
Government of India Act, 1935 -Sec.48 (1) provides The Governors of the state are as much
representatives of His Majesty for state purposes as the Governor-General of the Common Wealth is
for Common Wealth purposes.
xvii Minutes of sub-committee I, select documents I-II 23(i). pp.654-5
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D.D. Basu A COMMENTARY ON THE INDIAN CONSTITUTION [5th Edn. S. C. Sarkar & Son
xviii
(Pvt.) ltd. Cal. 1967]
xix Clauses 111 to 122.
xx Schedule V.
xxi CAD, Vol. VIII. P. 426.
xxii See Art.156.
xxiii See Art.157.
xxiv Lok Sabha Debates, Vol. 11. 1967. col. 2793.
xxv V.R. Krishna Ayer, A Constitutional Miscellany, [2nd Edn.Eastern Book Co. Okhala. 2003] p.32.
xxvi CAD Vol, III p.455.
O. P. Tiwari, Federalism and Centre-State Relations in India. [Deep and Deep Pub. New
xxvii
Delhi.1996] pp.275-6.
xxviii National Commission to Review the Working Constitution Report-para. 8.14.3. p. 165.
xxix ARC Report of the Study Team, Centre-State Relationships, 1967, Vol I p. 287.
xxxRecently in an unprecedented event the Modi Government appointed outgoing Chief Justice of
India Mr. P Sathasivam as the Governor of State of Kerala. This was for the first time when a retired
Chief Justice of India appointed as a Governor. In the past Justice Fathima Beevi, the first woman
judge of the Supreme Court was appointed as the governor of Tamil Nadu.
V.R.Krishna Iyer, A CONSTITUTIONAL MISCELLANY [2nd Edn.Eastern Book Co. Okhala. 2003],
xxxi
p.44-5
xxxii Sarkaria Commission Repot para4.6.09 p.139.
xxxiii See Art. 156 (3).
xxxivThevegetarianism of a Madras Governor Prabhudas Patwari angered President Neelam Sanjeeva

Reddy, although one does not know whether it was a factor in the formers summary dismissal later
on, without even a minutes notice. V. R. Krishna Iyer, A CONSTITUTIONAL MISCELLANY, [2nd
edn, Easten Book co. 2003], p. 13.
xxxv A.I.R. 1982 Raj.1
xxxvi A.G. Noorani Constitutional Questions in India, [Oxford University Press New Delhi 2000], p. 50.
G. Austin, Working a Democratic Constitution, [Edn.1999, Oxford University Pub. New Delhi] p.
xxxvii
580.
xxxviii See Art. 159.
xxxix
It was a solemn occasion when the King hold the office of great responsibility. M.B. Santi 59.106-
108xxxix
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Pratigyam chadhirohasva mansa karmana gira | Palasyamham bhaumam brahm satyev

chaskrita ||
Yaschatra dharmo nityokto dandaneetityapashrayam | Taptsanka karishyami svashaso na

kadachana ||
Which means you take oath by mind and words as follows: I shall protect the world considering it as
equivalent to the creator; I shall act fearlessly and observe the whole of Dharma in accordance with
Dandaniti and not according to my own sweet will.
xl See Art. 361.
xli See Art. 61
xlii See Art. 361 (2) and (3).
xliii CAD Vol. IX. p. 1121.
xliv See Pratap Singh Rajrao Rane v. State of Goa A.I.R. 1999 Bom.53, 66.
xlv See G. Vasanthapai v. C.K. Ramaswamy, A.I.R. 1978 Mad.342.
xlvi See Art. 154.
xlvii Art.162
P.B. Mukharji, The Critical Problems of the Indian Constitution. (edn.1967 University of
xlviii
Bombay). P. 8
xlix Ibid.
l Motilal v. Government of U.P. A.I.R. All 257 (FB).
li See Art. 161.
Art. 72 (1) (c), provides Presidents power to grant pardons, reprieves, respites or remissions of
lii
punishment or to suspend, remit or commute the sentence of death.
liii A.I.R. 1958. Pun 302.
liv K.M. Nanawati v. State of Bombay A.I.R. 1961 SC 112
lv (1981) 1 SCC 107.
lvi See Art.213.
Under the Rajdharma principle the King exercised similar power to issue of Rajashasana (the royal
lvii
edict). As Katyayan said, what a King establishes as Dharma which is not in conflict with the Smritis
and the usage of the country is a royal edict. It was not an unfettered power, the King was the highest
executive and he had very limited power to issue royal edict.
lviii A.I.R. 1969 SC 903.
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lix K.A. Nagraj v. State of A.P. A.I.R. 1985 SC
lxD.C. Badhwa, Re Promulgation of Ordinances. (in 1971 Bihar Assembly passes 8 Acts, but 113
Ordinances, in 1972, 5 Acts, 175 Ordinances, 1973, 13 Acts, 127 Ordinances, 1974, 16 Acts, 184
Ordinances..and in 1981 10 Acts and 203 Ordinances.
lxi A.I.R. 1987 SC. 579
Contra legem facit, qui id facit, quod lex prohibit in fraudem uero, qui saluis legis sententian eius
lxii
circumvenit quoted by D.C. Wadhwa in his book Re Pormulgation of Ordinances.
lxiii C.A. No. 5876-5890/1994. Decided on January 02, 2017.
lxiv See Art.165 (1).
lxv See Art.166 (3).
lxvi See Art.174.
lxvii See Art.175.
lxviii See Art. 175(2).
lxix See Art. 175.
lxx Observation of Governors Committee.
lxxi See Art. 163 (2)
lxxii A.I.R. 1974 SC 2192.
lxxiii See Draft Art. 144 (6).
lxxiv See Art. 153.
lxxv Art. 175.
lxxvi CAD vol. VIII pp. 467-8.
Minutes of select Documents IV 1 (iii) p. 41 (as cited by Subhas Kashyap in his book The Framing
lxxvii
of Indias Constitution, [2nd Edn. 2004 Universal Law Pub. Com. Pvt. Ltd]).
Rule of Proportionality and Wednesbury Principle (Associated Provincial Picture Houses Ltd. v
lxxviii
Wednesbury Corporation [1948] 1 KB 223 is used by our courts to check the exercise of
administrative power.
lxxix See Art. 163 (1).
lxxx See Art.164 (1)
lxxxi Report of Committee of Governors.
lxxxii Mahabir Prasad v. Prafulla Chandra A.I.R. 1969 Cal.198 p. 24.
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Congress party won 152 seats out of 375, UF gained 166 seats (single largest party) led by T.
lxxxiii
Prakasan
Governor may appoint a person as the Chief Minister without being a member of the House
lxxxiv
because word minister includes Chief Minister (Harsaran Verma v. Tribhuvan Narain Singh, AIR
1971 SC 1231].
lxxxv Sixteen members of the opposition parties crossed floor, allegedly in response to inducement.
lxxxvi Nehru to Rajgopalachari, 29 Jan1952 cited in Gopal Nehru vol 2 p. 220.
lxxxvii See Art. 164 (1).
lxxxviii See Art. !64 (3).
lxxxix M.S. Aney was sent to another state on the request of the Chief Minister Shrikrishna Singh.
xc Jagdambika Pal v. Union of India A.I.R. 1998 SC 998.
Under a Parliamentary system of Government there are only two prerogatives which the King or the
xci
Head of State may exercise, one is the appointment of the Prime Minister and the other is the
dissolution of Parliament [Dr. Ambedkar in Constituent Assembly Debates on 30th Dec1948]. Vide
CAD, vol. VII p. 1158.
O. P. Tiwari, Federalism and Centre-State Relations in India [Deep and Deep Pub. New Delhi,
xcii
1996] Ch. 14 p. 296
xciii Sarkaria Commission Report.
xciv Ibid.
xcv Ibid.
The Indian Express Dec. 1988. (cited in A.G. Noorani in his book Constitutional Questions in India
xcvi
[Edn. 2002 Oxford University Press p.38.)
xcvii Shri Prakash, State Governors in India, [Chirag Pub. Alld. 1966], p.5.
Kanahayalal Sharma: Reconstitution of the Constitution of India [Edn. 2002 Deep & Deep pub.
xcviii
Pvt.ltd. New Delhi], p. 177.
xcix CAD.vol.VI p.578
c CAD vol. VIII p.467
ci CAD Vol VIII, p.446.
cii Hargovind Pant v. Dr. Raghukul Tilak, A.I.R. 1979 SC 709.
ciii AIR 1955 SC 549
civ AIR 1974 SC 2192
We have few instances as in 1981, soon after his appointment as Governor of Sikkim Homi Taleyar
cv
Khan openly stated that he would not like to act merely as a figure head. Therefore, he toured
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extensively in his state, attended number of meetings and delivered speeches at different places.
Utterly disgusted with the behavior of the Governor the Chief Minister commented, There is a limit to
everything.
cvi A federation based on a minimum Centre and maximum autonomy for Constituent units.
N. S. Ghelot, State Governors in India: Trends and Issues. Gitanjali Publishing House New Delhi,
cvii
1985, p.345.
cviii See Hargovind v. Raghukul Tilak AIR 1979 SC 1109 at 1113.
cix CAD, Vol. XI, p. 965.
cxOscar Wild, The Soul of Man under Socialism quoted in Soli. J. Sorabjee, The Governor, Sage or
Saboteur, Roli Books International, 1985, p.33.
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Constitutional Commitment to International Obligations
Jasmeet Gulati*
ABSTRACT
India is committed to promote friendly relations with other nations.

Article 51 of the Constitution of India provides that India shall
endeavor to promote international peace and security and also foster
respect for International Law. India, as part of its constitutional
commitment, constantly endeavors to give effect to treaties and
international customs by enacting various legislations which they are
obliged to do under Article 253. According to Article 253, the
Parliament has power to make law for the whole or any part of the
territory of India for implementing any Treaty, Agreement or
Convention with any other country or countries or any decision made
at any International Conference, association or other body. The
Constitution itself clarifies that for implementing any treaty
obligations, a law has to be passed by the Legislature. This Article is in
conformity with the object declared by Article 51(c). Treaty-making
and implementation of treaties, etc. is a subject of Union Legislation.
In India, the provisions of treaty once signed do not automatically
form part of the law of the land. The doctrine of Monism as prevailing
in European countries is not applied in India, but it is the doctrine of
Dualism which is applied in India. The obligations arising under the
agreement or treaties are not by their own force binding on Indian
nationals. The text of Article 253 assumes that legislation would be
required for implementing international treaties, agreements or
conventions. But, the courts in India have played a significant role in
overcoming the challenges in implementing the provisions of treaty to
protect the rights of its citizens. In certain cases, the courts have
upheld the provisions of human rights treaties and given effect to
those provisions where there is no contradictory municipal law.
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Judiciary has played an important role over the years in realizing

certain provisions of international conventions and protecting the
rights of its citizens by basing its decisions on international legal
principles. The article presents the judicial trend which is now moving
toward monism from dualist approach in implementing treaty
obligations.
Keywords: International Obligations, Constitution, Constitutional

Commitments, Convention, Treaty, Monist, Dualist etc.
I. Introduction
International law respects sovereign equality of states. Although all states are
sovereign in the international legal system but they are bound by the principles of
International Law and the international obligations in their relations with each other.
There is no sovereign political authority above the states, in the international legal
system. Rules of International Law are created by common consent of states. The
states give their consent in formation of customs as well as treaties. And the states
feel themselves bound to observe these rules. Starke has defined International Law in
this sense. According to him, International law is, that body of law which is
composed for its greater part of the principles and rules of conduct which States feel
themselves bound to observe, and therefore, do commonly observe in their relations
with each other.. These international obligations arise out of the customary
international law and treaties/ international conventions that are ratified by the
respective states. The binding effect of the rule of International Law is based on the
principle of Pacta Sunt Servanda, which means that States are bound to fulfill in
good faith the obligations assumed by them under treaties. The states are bound to
fulfill their treaty obligations vis--vis other states. This is important towards
achieving the aim of maintaining friendly relations with other states and maintaining
international peace and security. But there is no provision under rules of
International Law which makes it obligatory for states to make laws for
implementing treaties within their national legal system. The treaties to which the
state has given its consent, becomes binding on it and it can be enforced by other
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states in their relation with one another. One of the most significant institutions to
administer international law is the United Nations Organisation.
The charter of the United Nations is based on the true legality of International Law,
and the purpose of the United Nations is explicit in the charter. One of the main
purposes of the United Nations is to maintain international peace and security i and
develop friendly relations among nations. India, being the founding member of the
United Nations, strongly supports the purposes and principles of the United Nations,
and has endeavored to promote international peace and security; maintain just and
honorable relations between nations; foster respect for international law and treaty
obligations in the dealings of organized peoples with one another; and encourage
settlement of international disputes by arbitrationii under its Constitution. India has
made significant contribution in promoting the purposes of the United Nations
through its Constitutional provisions and judicial activism.
II. International Law and the Constitution of India
India is committed to promote friendly relations with other nations and foster
respect for International Law and treaty obligations. International Law is sourced
from international customsiii; treaties/ international conventions; general principles
of law recognized by States and the juristic works.iv Article 51 of the Constitution of
India provides that India shall endeavor to promote international peace and security
and also foster respect for International Law. This provision was adopted in the
Constitution upon the realization that there could be no peace or progress within the
country if there was a war in which the country was involved.v It embodies the
objective of India in the international sphere as a member of the international
community and international civilised order. It is important to highlight here that
this provision finds its place in the Directive Principles of State Policy. The Directive
Principles as enshrined in Part- IV of the Constitution are fundamental in the
governance of the country but they are not enforceable by any court.vi These are the
guiding principles for the Legislature while framing laws. Although, the status given
to these provisions under the Constitution is forming part of Directive Principles; but
it cannot be overlooked that the State is duty bound to apply these principles in
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making laws.vii In Kesavananda Bharati v. State of Kerala,viii the nature and object
of Directive Principles is stated: The Directive Principles of State Policy set forth the
humanitarian socialist precepts that were the aims of the Indian social revolution.
Whenever action is taken by the State in consonance with the provisions laid down in
the Directive Principles of State Policy, as envisaged in Part IV of the Constitution,
the same is considered to be a reasonable action. Though the Directive Principles are
not enforceable and the courts cannot direct the Legislature or Executive to enforce
them, but once the legislation in pursuance of the Directive Principles has been
passed, the courts can order the State to enforce the law. The courts are,
nevertheless, bound to evolve, affirm and adopt principles of interpretation which
will further the goals set out in the Directive Principles of State Policy. In MRF Ltd.
V. Inspector, Kerala Govt,.ix it was observed by the apex court that the Directive
Principles of State Policy are not enforceable, but are nevertheless fundamental in
the governance of the country and have to be applied by the State in making the laws.
Therefore, the Legislature while framing laws must ensure that the laws are
inconsonance with the Directive Principles of State Policy.
What follows from the above is that the rules of International Law must be respected
by the legislature while framing the laws. There is no corresponding provision under
the Constitution which lays down that the international treaties or agreements
entered into by India shall have the force of municipal law without appropriate
legislation. Nevertheless, it is now established that the Directives, in general, though
not directly enforceable in the courts, are also binding on the courts in the matter of
interpreting the Constitution itself or the statutes wherever possiblex without doing
violence to the express terms of the statute. For this purpose, while courts are not
free to direct the making of legislations, but the courts are bound to take into
consideration the principles of interpretation to realize the goals, as mentioned
under the Directive Principles.
India, as part of its constitutional commitment, constantly endeavors to give effect to

treaties and international customs by enacting various legislations which they are
obliged to do under Article 253. According to Article 253, the Parliament has power
to make law for the whole or any part of the territory of India for implementing any
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Treaty, Agreement or Convention with any other country or countries or any decision
made at any International Conference, association or other body. The Constitution
itself clarifies that for implementing any treaty obligations, a law has to be passed by
the Legislature.xi This Article is in conformity with the object declared by Article
51(c). Treaty-making and implementation of treaties, etc. is a subject of Union
Legislation, under Entry 14, List I. But it would have been difficult for the Union to
implement its obligations under treaties or other international agreements had it not
been competent to legislate with respect to State subject in so far as that may be
necessary for that purpose.xii In India, the provisions of treaty once signed do not
automatically form part of the law of the land. The doctrine of Monism as prevailing
in European countries is not applied in India, but it is the doctrine of Dualism which
is applied in India. A treaty entered by India cannot become a law of the land and it
cannot be implemented unless Parliament passes a law under Article 253. The
obligations arising under the agreement or treaties are not by their own force binding
on Indian nationals. The power to legislate in respect of treaties lies with Parliament
under Entries 10 and 14 of List I of the Seventh Schedule. The text of Article 253
assumes that legislation would be required for implementing international treaties,
agreements or conventions. India, therefore, follows the dualist approach since it is
imperative to pass a law by the Parliament to give effect to any treaty/ international
convention.
III. Monist and Dualist Schools of Thought
The State practices pertaining to incorporation of International Law into municipal

law have been explained by two schools of lawxiii. The schools of law on the
relationship between international law and national laws (municipal laws) are -
Monist and Dualist. Monistic theory was propounded in the Eighteenth century and
was put forward by two German scholars Moser (1701- 1785) and Martens (1756-
1821)xiv. According to this doctrine, there exists only one set of legal system that is
the domestic legal orderxv. This theory was further developed by Kelsen, an Austrian
jurist. This approach does not distinguish between International Law from national
law of states. Accordingly, rules of International Law does not need to be
transformed into national/ municipal law through any further national legislation
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and the rules of International Law can be applied as such by municipal courts. The
rules of International Law including those in the treaty automatically become
effective and incorporated in the Municipal law as soon as the State ratifies a treaty.
In a monist state, the court can declare any national rule of law invalid if it
contradicts with the international rule of law and thus establishes superiority of
International Law even within the municipal sphere. The Netherlands and Germany
are the examples of states having monist approach. Many States expressly accept
International Law as part of their domestic law while others do not accept so. Where
International Law becomes incorporated in a States domestic law without the need
for specific legislation, those parts of it, which are sufficiently explicit to be
enforceable by the domestic courts, are known as self executing. Some States
provide by their Constitutions that certain provisions of International Law shall be
self-executing. For example, the Constitution of the U.S.A., provides that
international treaties are part of the law of the land. Other countries have gone even
further by not only making International Law self executing, but assigning to it a
rank in the domestic hierarchy superior to all prior and subsequent legislation.
Examples of this are France and Germany. But there are other States that do not
accept any International Law as self-executing, or so accept it in part, for example
United Kingdom (U.K.), and these States are dualistic.
According to dualist theory, International Law and municipal laws are two distinct
separate and self-contained legal systemsxvi. And so, International Law would not as
such form part of the national law of the state. In such a state, legislature must pass
law to give effect to the treaty since ratification of a treaty by the concerned state
does not result in automatic incorporation in domestic legal system. This view was
propounded by German scholar Triepel in 1899, and further developed by Italian
jurist Anzilotti. This theory represents that International Law has different character
from that of national law. According to dualist school of thought, the municipal
courts shall apply municipal law in case of a conflict between International Law and
municipal law. Therefore, municipal law has primacy over International Law
according to this theory. The U.K. follows dualist pattern. In Britain, International
Law becomes part of law of land only when it is accepted in national law through
legislation. A treaty has no effect in municipal law until an Act of Parliament is
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passed to give effect to it. International Law does not determine which point of view
is to be preferred. It is left to the discretion of the states to decide according to their
legal traditions and national structure. India, more closely, follows the dualist
pattern, which is also evident from the provisions of the Constitution.
In the case of State of West Bengal v. Kesoram Industries Ltd. & others, xvii a five
judge Constitutional Bench of Supreme Court observed: It is true that the doctrine
of Monism as prevailing in the European Countries does not prevail in India. The
Doctrine of Dualism is applicable. But, where the municipal law does not limit the
extent of the statute, even if India is not a signatory to the relevant International
Treaty or covenant, the Supreme Court in a large number of cases interpreted the
Statutes keeping in view the same.
IV. Role of Judiciary in India in Implementing Treaty

Obligations
The courts in India have played an important role in overcoming the challenges in
implementing the provisions of treaty/ international covenants to protect the rights
of its citizens. Courts in India, in certain cases, refused to implement treaty
provisions in municipal courts without any legislation to that effect. But at the same
time, it has upheld the provisions of human rights treaties and given effect to those
provisions where there is no contradictory municipal law. Judiciary has played an
important role over the years in realizing certain provisions of international
conventions and protecting the rights of its citizens by basing its decisions on
international legal principles. It would be worthwhile to discuss a few judicial
pronouncements in this regard.
In Xavier v. Canara Bank Limited,xviii the issue that came up before the Kerala High
Court was whether the provisions of International Covenants/ Treaties to which
India is a party become part of Corpus Juris of India. More specifically the question
pertained to whether Article 11 of the International Covenant on Civil and Political
Rights 1966, which provides that no one shall be imprisoned on the ground of
inability to fulfil a contractual obligation, has become part of Municipal law of the
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country, consequently conferring right to remedial action at the instance of an

aggrieved individual. The Court held that '. The remedy for breaches of
International Law in general is not found in the law courts of the state because
International Law per se or proprio vigore has not the force or authority of civil law,
till under its inspirational impact actual legislation is undertaken'. It further
observed that although the Universal Declaration of Human Rights sets a common
standard of achievement for all peoples and all nations but individual citizens cannot
complain about their breach in municipal courts even if the country concerning has
adopted the covenants and ratified the Optional Protocol. The court also stated that
the basic human rights enshrined in the International Covenants may at best inform
judicial institutions and inspire legislative action within member states but apart
from such deep reverence, remedial action at the instance of an aggrieved individual
is beyond the area of judicial authority.
In the case of J.G. Verghese v. Bank of Cochin,xix the Hon'ble Supreme Court also
dealt with the matter concerning effect of International Law and its enforceability at
the instance of individuals within the state (India). The apex court observed that the
positive commitment of the state parties ignites legislative action at home but does
not automatically make the covenant an enforceable part of law in India. Also in
Magnabhai Ishwarbhai Patel v. Union of India, the Constitutional Bench of
Supreme Court held that the effect of Article 253 is that if a treaty, agreement or
convention with a foreign state deals with a subject within the competence of State
Legislature, the Parliament alone has the power to make laws to implement the
treaty, agreement or convention or any decision made at any international
conference, association or other body. Further, in the year 2005, the apex court in
the case of State of West Bengal v. Kesoram Industries Limited, held that a Treaty
entered into by India cannot become law of the land and it cannot be implemented
unless Parliament passes a law as mentioned under Article 253. These observations
of the Supreme Court in the above mentioned cases, only reflect the dualistic theory
according to which a treaty becomes a law of the land only after its transformation
into that law by the legislative process.xx
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The common law countries which are following dualist pattern, requires the Act of
Parliament to transform treaty into the national legislation. But at the same time, the
common law countries maintain that the rules of international customary law are
part of municipal law only if they are not inconsistent with municipal law. The apex
court in India has also followed this rule. In the case of People's Union for Civil
Liberties v. Union of India,xxi the Supreme Court severely regulated telephone
tapping which is permitted under Section 5(2) of the Telegraph Act. The court took
into consideration the right to privacy implicit in Article 21 and recognized by Article
12 of the Universal Declaration of Human Rights, 1948, and Article 17 of the
International Covenant on Civil and Political Rights, 1966. It further held that the
rules of customary International Law which are not contrary to the municipal law
shall be deemed to be incorporated in the domestic law. We have seen a shift in the
approach of the Supreme Court, as in earlier cases, the Hon'ble court held that a
treaty entered into by India cannot become law of the land but in the later case of
People's Union for Civil Liberties, the court observed that the rules of Customary
International Law shall be deemed to form part of municipal law provided it is not in
contradiction to the enacted law. The acceptability of principles of International Law,
even if it is in the form of Customary International Law, is quite evident. Hence,
though the court cannot directly make the law which is the function of the
Legislature, or even to apply a law on its view as it should be, which involves a
question of policy, it may apply Article 51, where there is no contrary authority
binding on the court.xxii
The positive approach of the Supreme Court, towards acceptability of the principles
of International Law is further heightened in the case of Vellore Citizens Welfare
Forum v. Union of India and others.xxiii The Hon'ble court upheld the validity of
principles of 'sustainable development', 'polluter pays' and 'precautionary principle'.
It held that ' once these principles are accepted as part of the Customary
International Law, there would be no difficulty in accepting them as part of the
domestic law. It is almost accepted proposition of law that the rules of Customary
International Law which are not contrary to the municipal law shall be deemed to
have been incorporated in the domestic law and shall be followed by the Courts of
Law'. In Gramophone Company of India Limited v. Birendra Bahadur Pandey,xxiv
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the Supreme Court observed that the comity of nations requires that the rules of
International Law may be accommodated in the municipal law even without express
legislative sanctions provided they do not run in conflict with the Acts of Parliament.
The Supreme Court has played a very important role in implementing treaty
obligations in the case of Vishaka and others v State of Rajasthan and others.xxv It is
a landmark judgment wherein the apex court while promulgating the guidelines on
women's sexual harassment has held that '. in the absence of domestic law
occupying the field, to formulate effective measures to check the evil of sexual
harassment of working women at all work places, the contents of international
conventions and norms are significant for the purpose of interpretation of the
guarantee of gender equality, right to work with human dignity in Article 14, 15, 19
(1)(g) and 21 of the Constitution and the safeguards against sexual harassment
implicit therein. Any international convention not inconsistent with the fundamental
rights and in harmony with its spirit must be read into these provisions to enlarge
the meaning and content thereof, to promote the object of the constitutional
guarantee'. The court further observed that it is now an accepted rule of judicial
construction that regard must be had to the international conventions and norms for
construing domestic law where there is inconsistency between them and there is a
void in the domestic law. The court referred to its own decision in case of Nilabati
Behera v. State of Orissa and others.xxvi The court in this case observed that there is
no reason why these international conventions and norms cannot be used for
construing the fundamental rights expressly guaranteed in the Constitution of India.
In Gita Hariharan v. Reserve Bank of India,xxvii while interpreting the right of
guardianship of mother while father was alive (under the Hindu Minority and
Guardianship) Act 1956, the Convention on the Elimination of All Forms of
Discrimination against Women was again relied on. Also, denying maternity benefit
to some of the women employees of Municipal Corporation of Delhi was held invalid
relying on Maternity Benefit Act, 1951 read along with Article 11 of the above
mentioned Convention.xxviii
In a recent judgment of 2014 on recognizing transgender as third gender and

enforcing their rights guaranteed in the Constitution as citizens of this country, the
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Supreme Court referred to the provisions of international conventions. In this case

titled as National Legal Services Authority v. Union of India and others,xxix the
Hon'ble Court observed that generally, a legislation is required for implementing the
international covenants, unlike the position in the USA where the rules of
International Law are applied by the municipal courts based on the theory of their
implied adoption by the state, as a part of its own municipal law. xxx In the US, till an
Act of Congress is passed, the court is bound by law of nations, which is part of the
law of land. The apex court, while referring to the Indian position with respect to the
implementation of international treaty obligations into the municipal legal system,
observed that such a 'supremacy clause',xxxi as is adopted by the US, is absent in our
Constitution. Courts in India would apply the rules of International Law according to
the principles of Comity of Nations, unless they are overridden by clear rules of
domestic law. The court has applied this proposition in many cases which are
referred earlier. The court held in the later case that the covenants which India has
ratified can be used by the municipal courts as an aid to the interpretation of statutes
by applying the doctrine of harmonization. And therefore, if the Indian law is not in
conflict with the international covenants, particularly relating to human rights, to
which India is a party, the domestic court can apply those principles in Indian
conditions. In the present case, the rights of transgender and their protection against
discrimination were brought to surface and the Supreme Court gave due regard to
international conventions and norms for the protection of rights of transgender
community. The court highlighted the significance of International Conventionsxxxii
and the rights covered under these conventions for the third gender. The court also
referred to United Nations Convention Against Torture and Other Cruel Inhuman
and Degrading Treatment or Punishment, which deals with protection of individuals
and groups made vulnerable by discrimination or marginalization.
The court, while interpreting Article 51 read along with Article 253 of the
Constitution of India, held that if the Parliament has made any legislation which is in
conflict with International Law, then Indian courts are bound to give effect to the
Indian law. However, in the absence of contrary legislation, municipal courts in India
would respect the rules of International Law. Therefore, the Indian commitment to
International Treaty obligations under Constitution of India is defined under Article
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51(c); which although is only a Directive Principles of State Policy, yet the power of
Parliament under Article 253, to enact laws for implementing the treaty obligations is
an important provision in this direction.
V. Conclusion
India has been following the dualist pattern according to the provisions of the
Constitution and the judicial approach wherein the apex court has in many cases
held that if an Act of Parliament has not been passed, the treaty provisions cannot be
enforced by the court of law. In the absence of contrary legislation, municipal courts
in India would respect rules of International Law, but if there is any express
legislation contrary to a rule of International Law, Indian courts are bound to give
effect to the Indian law. It was held in Indramani Pyarelal Gupta v. W. R. Natu,xxxiii
that every Statute is to be interpreted and applied, as far as its language admits, as
not to be inconsistent with the comity of nations or with established principles of
International Law. In A.D.M. Jabalpur v. S. Shukla,xxxiv it was observed, Equally
well settled is the rule of construction that if there is a conflict between the municipal
law on the one side and the International Law or the provisions of any treaty
obligation on the other, the courts will give effect to municipal law. If, however, two
constructions of municipal law are possible, the courts could lean in favour of
adopting such construction as would make the provisions of the municipal law to be
in harmony with the International Law on treaty obligation. Every Statute, according
to this rule is interpreted, as far as its language permits, so as not to be inconsistent
with the comity of nations on the established principles of International law, the
court would avoid a construction which would give rise to such inconsistency unless
compelled to adopt it by plain and unambiguous language,
In later cases, Hon'ble Supreme Court has given effect to treaty obligations especially
in the case of Vishaka and others v State of Rajasthan and othersxxxv and in the
recent case of National Legal Services Authority v. Union of India and others.xxxvi
The Supreme Court has given importance to the rules of International Law and treaty
obligations in the national courts. It can be inferred that from a dualist approach,
India is moving towards monist approach. The courts in India may enforce
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international treaties and conventions which are not inconsistent with Indian
laws.xxxvii In Vellore Citizens Forumxxxviii case, it was held that the rules of Customary
International Law which are not contrary to municipal laws are deemed to have been
incorporated in the domestic law. The principle of Sustainable Development as a
balancing concept between ecology and development, which is part of Customary
International law and the Precautionary Principle and Polluter Pays Principle which
are the essential features used for construing the functions of the authority under
Section 3(3) of the Environment Protection Act, which has been enacted to give effect
to the decisions taken at the United Nations Conference on Human Environment at
Stockholm was followed by Supreme Court in A.P. Pollution Control Board II v. M.V.
Nayudu.xxxix This only reflects how rules of International Law as are mentioned
under various conventions and customs are being applied by the municipal courts in
India without waiting for the Legislature to frame law to meet the ends of justice.
Also Article 141 of the Constitution of India provides that the law laid down by the
Supreme Court shall be binding on all courts in India. Judgments of the Supreme
Court constitute a source of law.xl It was held that in adjudicatory process, an
element of law making is involved.xli According to this provision, the Supreme Court
can mould and lay down the law formulating principles and guidelines as to adopt
and adjust to the changing condition of society, the ultimate objective being to
dispense justice.xlii The recent decisions of the Supreme Court reflect the trend
towards the monist approach, whereby the provisions of international treaties have
been enforced in the court of law.
References:
* Dr. Jasmeet Gulati, Ph.D (Law), LL.M (Cantab), M.A. (Public Admen.) PGDCL, GC in IPRs (WIPO),
Fellow Cambridge Commonwealth, Hon. Fellow University of Liverpool (UK). Senior Assistant
Professor of Law at Punjab University and prsently Assistant Registrar, Center for Research and
Planning, Supreme Court of India.
i Article 1 of the charter of United Nations mentions the purposes of United Nations
ii Article 51 of the Constitution of India
Customary rule of International Law results from a general and consistent practice of States which is
iii
followed by them from a sense of legal obligation. A customary rule emerges only when it is proved by
satisfactory evidence that the alleged rule (State practice) has been accepted as law by the States.
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ivArticle 38 of the Statute of International Court of Justice provides, The Court, whose function is to
decide in accordance with International Law such disputes as are submitted to it, shall apply:
(a) international Conventions, whether general or particular, established rules expressly

recognized by the contesting states;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules
of law.
vD. D. Basu Commentary on the Constitution of India Vol. 3 (8th Ed.) 2008 Lexis Nexis Butterworths
Wadhwa, Nagpur at 4192
vi Article 37 of the Constitution of India
vii Ibid
viii AIR 1973 SC 1461
ix ( 1998) 8 SCC 227
x U.P.S.E. Board v. Hari Shanker AIR 1979 SC 65 at 69
xi Article 253 of the Constitution of India
xii D. D. Basu Commentary on the Constitution of India Vol. 8 (8th Ed.) 2012 Lexis Nexis
Butterworths Wadhwa, Nagpur at 9012
xiii Dr. S. K. Agarwal Implementation of International Law in India: Role of Judiciary Dean
Maxwell & Isle Cohen Doctoral Seminar in International Law, McGill University
xiv Dr. H. O. Agarwal International Law and Human Rights Central Law Publications (20th Ed.)
2014 at 44
xv Ibid
xvi Dr. H. O. Agarwal International Law and Human Rights Central Law Publications (20th Ed.)
2014 at 42
xvii AIR 2005 SC 46 at para 494
xviii 1969 Ker.LT 927.
xix AIR 1980 SC 470
xx Dr. H.O. Agarwal International Law & Human Rights Central Law Publications (20th Ed.) 2014 at
54
xxi AIR 1997 SC 568
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xxiiD. D. Basu Commentary on the Constitution of India Vol. 3 (8th Ed.) 2008 Lexis Nexis
xxiii AIR 1996 SC 2715
xxiv AIR 1984 SC 667
xxv AIR 1997 SC 3011
xxvi AIR 1993 SC 1960
xxvii AIR 1999 SC 1149
xxviii Municipal Corporation of Delhi v. Female Workers (Muster Roll), AIR 2000 SC 1274
xxix AIR 2014 SC 1863
xxx Article VI, Clause 2 of US Constitution provides that all treaties made, or which shall be made,
under the authority of the United States, shall be the Supreme law of the land, and the judges in every
State shall be bound thereby, anything in the Constitution or laws of any State to the contrary
notwithstanding.
xxxiArticle VI, Cl. (2) of the American Constitution provides that all treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme law of the land, and the judges in
every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary
notwithstanding.
xxxii Article 1, 3 and 5 of Universal Declaration of Human Rights, Article 6 and 7 of International
Covenant on Civil and Political Rights, 1966
xxxiii AIR 1963 SC 274
xxxiv AIR 1976 SC 1207
xxxv AIR 1997 SC 3011
xxxvi AIR 2014 SC 1863
xxxvii Dr. H.O. Agarwal International Law & Human Rights Central Law Publications (20th Ed.)
2014 at 55
xxxviii AIR 1996 SC 2715
xxxix AIR 1999 SC 812
xl All India Reporter Karmachari Sangh v. All India Reporter Limited AIR 1988 SC 1325
xli Managing Director, ECIL, Hyderabad v. B. Karunakar (1993) 4 SCC 727
xliiD. D. Basu Commentary on the Constitution of India Vol. 5 (8th Ed.) 2009 Lexis Nexis
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Discourse on Access to Justice in India & Rise of Gram

Nyayalayas at the Grass-Root
Nachiketa Mittal* & Amrita Singh**
ABSTRACT
Administration of justice is the primary responsibility of the State.

This includes a sacrosanct duty of the State to ensure equal access to
legal services by all the citizens. Problem of inequality in accessing
justice mechanism at minimum cost has been a widespread problem
across almost all democracies globally. India is no exception to this
perennial concern. Since independence, India has consistently taken
serious efforts in fulfilling its Constitutional mandate of making legal
services available to all its citizens by developing institutions like legal
aid. Latest legislative action of the Indian parliament in this regard
has been an enactment of the Gram Nyayalayas Act, 2008. It carries
many progressive provisions to make justice delivery available to the
rural poor at the village level in a cost effective and timely manner.
This paper discusses the developing discourse on access to justice in
India vis--vis emergence of Gram Nyayalayas at the grass-root to
facilitate doorstep justice delivery.
Keywords: Justice, Access to Justice, Gram Nyayalayas, doorstep

justice delivery, Constitution etc.
I. Introduction
In the last quarter of the century, most common law and civil law world democracies
have witnessed an increasing concern of under-delivery on the front of access to
justice. David Simmons, former Chief Justice Supreme Court of Barbados observed
that:
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In the last 25 years, throughout the common law world, traditional

arrangements for the delivery of civil justice have come under
scrutiny, challenge and change. The search for alternative processes
to litigation in the resolution of disputes gained momentum and a
great debate has ensued.i
There are profound and sufficient reasons for this debate. Much of it has arisen from
the over burdening of State courts with case load and proportionately lesser disposal
rate. Resultantly, the search for methods beyond the traditional court room advocacy
has gained momentum globally. It may eventually also bring within its fold the
debate about declining standards of administration of justice. ii It is no longer a
jurisdiction specific or nation specific problem. Instead, it is a bitter reality of the
present legal systems globally.iii It probably takes us to the fundamental question
that whether the present day judicial system and legal services are competent to
deliver the results suited to the specific needs, quick and effective. Ensuring justice to
all at minimum cost and within reach is undeniably the ultimate objective which all
the legal systems aim to achieve by exploring alternative methods of dispute
resolution. The very essence of the term justice is not indisputably settled. The
concept changes with time and place as is necessary. According to David M. Walker
justiceiv generally means a moral value commonly considered to be the end which
law ought to try to attain, which should realize for the men whose conduct is
governed by law, and which is the standard or measure or criterion of goodness in
law and conduct, by which it can be criticised or evaluated.v In the Indian context,
the Constitution of India, the basic law of the land, in its preamble, stands for
securing justicevi to all its Citizens. This aspiration is retained again in Article 39A vii,
where the Constitution aspires to secure and promote access to justice to all its
citizens, especially to the marginalized ones with, free legal aid by suitable legislation
or schemes or in any other way.
The age-old debate of access to justice has time and again acquired attention of both
legislature and judiciary for revisiting the level of achievement made so far and gaps
that need to be filled especially in a pre-independent era. This concern re-surfaced
yet again very recently in the light of Supreme Courts verdict in the case of Anita
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Kushwaha vs Pushap Sudan (2016) 8 SCC 509. In this case the Supreme Court
examined whether access to justice is indeed a fundamental right. The court also
examined jurisprudential aspect of the Right of Access to Justice and its correlation
with the right to life. Finally, the Apex Court held that- access to justice is indeed a
facet of right to life guaranteed under Article 21 of the Constitution. viii Though this
pronouncement of declaring access to justice as a fundamental right has come
through a judgement of the highest court of justice more than sixty years after
independence but would benefit millions of justice seekers. It may still be noted that
serious legislative and judicial efforts have consistently been made for furthering the
access to justice even prior to this pronouncement.
This paper would thus trace the concrete steps taken in this regard including the
efforts towards establishing mechanism of legal aid in the country and issues of
administration of justice which is the driving force for the facilitating access to
justice. In the end the paper will identify the recent legislative action taken towards
strengthening the grass-root justice delivery and the way forward.
II. Administration of Justice and Role of State
Beyond the world perspective, even in specific context of India, access to justice has
long been a matter of concern. But before we understand further nuances of it, a brief
reference is necessary to outline role of State in institutionalising and establishing
mechanism for better administration of justice. As justice remains the fundamental
value to be achieved, it must be understood that the notion of justice evokes the
cognition of the rule of law, of the resolution of conflicts, of institutions that make
law and of those who enforce it; it expresses fairness and the implicit recognition of
the principle of equality.ix Such notion of justice would remain incomplete without
the agenda of access to justice imbibed in its spirit. But there would remain a basic
question as to what might access to justice entail. So to say, access to courts, access to
legal services and access to contemporary techniques of efficient resolution of
disputes together constitute the components of a States effective system of justice. x
This in turn reflects that an administration of justice is sine qua non for any legal
system to perform in order to ensure coherent and orderly society.xi If we revisit the
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ancient laws and compare with the present day justice system, the legal systems of
modern democracies appear to be in utter disarray.xii Since the time immemorial
relentless efforts have been made to establish order and security in order to ensure
the growth of an orderly society for the betterment and welfare of the people. Order
means some measure of uniformity, continuity and consistency in the operation of
social process.xiii Securityxiv would mean material value which justice in social
relations must seek to promote. Safety of the people could be ascertained as the
supreme law.xv It has been vividly pointed out that:
Human welfare demands at a minimum efficient order to ensure that

such basic needs as food production, shelter and child rearing be
satisfied, not in a state of constant chaos and conflict, but on a
peaceful, orderly basis with a reasonable level of day to day
security.xvi
Free access to justice delivery services is the cornerstone of every of a truly

democratic and civilised modern society. Ensuring uninterrupted justice delivery to
all the citizens is the Constitutional obligation of the State. Unbiased, easily
accessible and affordable justice delivery is an indicator of an efficient judicial
system. By promoting such a service government can ensure that the States promise
of justice for all gets fulfilled towards its citizens satisfactorily. xvii Administration of
justice becomes the foremost job of the State as Salmond views:
The administration of justice implies the maintenance of right within

a political community by means of physical force of the state. Without
effective administration of justice one cannot think of the welfare,
well-being and order in society.xviii
The expression administration of justice has a wide meaning, and includes

administration of civil as well as criminal justice.xix In the present day context we
may generally assume that the administration of justice is the chief function of
government to be exercised by the State.xx Recently in the year 2012, the Supreme
Court of India observed that:
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It is the responsibility of the State Administration to see that courts

function on all working days without any hindrance. The
administration of justice should never be stalled at the instance of
anyone including the members of the bar even for any cause.xxi
In a historic Judges Transfer Casexxii in the year 1982, the seven judgesxxiii of the
Supreme Court of India observed about the responsibility of the State to ensure that
justice dispensation is smoothly and effectively discharged in the following words:
In a parliamentary democracy with a written Constitution in which

three organs of the Governments are clearly marked out, it becomes a
primary duty of the State to provide for fair and efficient
administration of justice. Justice must be within the easy reach of the
lowest of the lowliest. Rancour of injustice hurts an individual leading
to bitterness, resentment and frustration and rapid evaporation of the
faith in the institution of judiciary. Two vital limbs of the Justice
system are that Justice must be within the easy reach of the weaker
sections of the society and that it must be attainable within a
reasonably short-time, in other words, speedily...
III. Access to Justice: Ancknolodgement by International

Instruments & Indian Judiciary
Erecting institutions of justice delivery perhaps is the one of the foremost steps State
takes in order to facilitate availability and accessibility of justice delivery services by
all. Beyond this basic step, the issue involves multiple implications globally including
the nexus between the concept of access to justice and human rights. Therefore, it is
imperative to identify the international treaties and conventions which also support a
similar view and recognise the same normative value of access to justice. That is, the
right of access to justice has been recognised as one of the fundamental and basic
human rights in various international covenants and charters. xxiv It is common to see
that the legal system touches upon the lives of the people in numerous
circumstances. There can be instances involving disputes between private parties like
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employment disputes, matrimonial disputes, debt or mortgage claims, breach of

contract, etc. And many a times people can come into conflict with law when they are
accused of committing an offence like theft, murder, domestic violence, criminal
breach of trust, etc. In either category of circumstances, it is essential that every
individual gets access to justice delivery system. This would indeed cover a free and
fair access to fair and impartial hearing and access to legal representation. Such
access to justice is said to be essential for protecting human rights, both in these
situations and in general.xxv
It is interesting to note that in September 2015, United Nations Member States

adopted the Sustainable Development Goals (SDGs)xxvi as part a new sustainable
development agenda post 2015. And in the newly adopted SDGs, promoting peace
and justicexxvii is one of the 17 (seventeen) SDGs.xxviii
Article 14 of the International Covenant on Civil and Political Rights (ICCPR) also
recognises access to justice as a basic human right and embraces that in
determination of any criminal charge fair and public hearing should be provided by a
competent, independent and impartial tribunal established by law.xxix The rights of
accused and his right to fair hearing and access to justice are also recognised under
Article 67 of the Rome Statute of the International Criminal Court. xxx Amongst other
international statues recognising access to fair hearing as a true indicator of access to
justice amounting to protection of human rights, are Article 6 Paragraph 1 xxxi of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms which guarantees the right to a fair trial; Article 10 of the Universal
Declaration of Human Rightsxxxii.
The identification of access to justice within a larger debate of human rights needs to
be now viewed from diverse angles. One of the cardinal issues that have constantly
been in debate is the fundamental need of access to legal services by the poor and the
marginalised.
Lord Denning has also observed that since the Second World War, the greatest
revolution in the field of law has been the system of legal aid. He further states that
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legal aid means that in many cases the lawyers fees and expenses are paid by the
State.xxxiii Legal aid is often recognized and traced from the ancient times as the non-
negotiable right of every citizen. Thus, it is imperative to remind ourselves of the
tenets of the Magna Carta which were formulated over centuries ago. In this context,
it is notable the beginning of the equal justice under the law was marked by the
inscription in the 40th paragraph of the Charter in the following words:
No freeman shall be taken or imprisoned or disseised or outlawed or

exiled or in any way ruined, nor will we go or send against him,
except by the lawful judgment of his peers or by the law of the land. To
no one will we sell, to no one will we deny or delay rights or
justice.xxxiv
Adding to the invaluable tenet of Magna Carta, William J. Bernnan, a U. S. Supreme

Court Judge has very aptly emphasised the significance of legal aid in the following
words:
Nothing rankles more in the human heart than a brooding sense of

injustice. Illness we can put up with. But injustice makes us want to
pull things down. When only the rich can enjoy the law, as a doubtful
luxury and the Poor, who need it most cannot have its expenses puts it
beyond their reach, the threat to the continued existence of a free
democracy is not imaginary but very real, because democracys life
depends upon making the machinery of justice so effective that every
citizen shall believe in and benefit by its impartiality and fairness.xxxv
In the Indian context, Justice Muralidharxxxvi in his famous work on Access to Justice
observes that two basic purposes which are intended to be served by providing access
to justice in the form of legal aid are:
(a) To ensure that every person is able to invoke the legal processes for redressal,
irrespective of social or economical status or other incapacity; and
(b) That every person should receive a just and fair treatment with the legal
system.xxxvii
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It is true to say that justice is most often claimed by people who are in need and
expect fair and effective application of the law. But this necessarily requires a multi-
facet approach. Such that there should be a provision of legal aid services, including
community legal education, legal assistance and law reform.xxxviii The Supreme Court
of India in Sheela Barse v. State of Maharashtraxxxix emphasized that the provision
of legal assistance for a poor or indigent accused arrested was a constitutional
imperative mandated not only by Article 39A but also by Articles 14 and 21 of the
Constitution. The Apex Court also noted that the absence of such legal assistance
would result in grave injustice and that every such act of injustice corrodes the
foundation of democracy and rule of law.xl Twenty years ago, the Supreme Court of
Indiaxli while discussing this problem of access to justice observed:
[W]e have to consider the combined effect of Article 21 and

Article 39A of the Constitution of India. The right to free legal aid and
speedy trial are guaranteed fundamental rights under Article 21 of the
Constitution. The preamble to the Constitution of India assures
'justice, social, economic and political'. Article 39A of the Constitution
provides 'equal justice' and 'free legal aid'. The State shall secure that
the operation of the legal system promotes justice. It means justice
according to law. In a democratic polity, governed by rule of law, it
should be the main concern of the State, to have a proper legal
system..................The principles contained in Article 39A are
fundamental and cast a duty on the State to secure that the operation
of the legal system promotes justice, on the basis of equal
opportunities and further mandates to provide free legal aid in any
way-by legislation or otherwise, so that justice is not denied to any
citizen by reason of economic or other disabilities.xlii
It is a deep rooted inherent hallmark of our legal system and also a soul of its
philosophy that Equal justice or equality before the law, regardless of economic
status should be promoted by the State. Equal justice should not be understood in a
narrow sense of equal opportunity to access the legal system. It also effectively means
equal opportunity to secure the advice and services of a lawyer. In majority of the
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cases, those who are unable to afford legal services, inevitably suffer a denial of equal
justice until legal assistance through the channels of public justice system could in
any way be facilitated to them.xliii
IV. Progress of Legal Aid Movement in India
The recognition of legal assistance to the poor and needy by the international
normative order and the India judiciary as discussed above creates a natural
environment for a necessary reform to re-structure the public legal services
mechanism in India. Multiple factors are responsible for needed change in the civil
or public legal services system, such as growing pattern of changes in the practice of
law, recently enacted laws affecting disadvantaged and low-income groups,
decreasing rate of access to justice delivery system by a common man and growing
sense of trust deficit of people in the justice delivery system and its affordability.xliv In
this context plethora of policy, legislative and judicial actions are on record in India
to augment the growth of effective legal aid services in the country. The movement
for legal aid in India took off from the rising judicial and academic concern about
facilitating equal legal representation to those charged with criminal offences in the
court of law.xlv The foremost attempt of inclusive probe into the issues of providing
free legal assistance took place soon after the independence. xlvi Justice P. N.
Bhagwati who later became the Chief Justice of the Supreme Court of India, headed
the inquiry about legal aid work through the Committee on Legal Aid and Legal
Advice in the State of Bombay.xlvii Soon after the report of this Committee, the issue
of providing for the rule of law in free society, led to its recognition by the
International Commission of Jurists in the year 1959 emphasising on the need for the
state to ensure legal counsel to all.xlviii
[A] full review of the means to implement this demand was made by
the Committee on Legal Aid at the Third All-India Law Conference in
1962 .... [T]he committee outlined a comprehensive national
programme providing for the establishment of legal aid committees in
all districts of the country. The Committee suggested state
participation in the scheme with aid in all criminal cases where the
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defendant could not engage counsel, and gradual extension of aid in

civil cases as well.xlix
In keeping with these principles, the Law Ministry of the Government of India in the
year 1962 called a conference of State Governments to discuss the possibility of
extending legal aid services throughout India in compliance of the States obligation.
However, financial burden of providing free legal assistance was understood to be big
concern at that time and similar concern was expressed by almost all the State
Governments.l In such critical time, only the Supreme Court of India came to fill the
gap and through its rules assured legal aid to be provided at the discretion of the
Court in all criminal cases coming before it.li Following a series of efforts by the State
and the judiciary in India, the National Expert Committee on Legal Aid lii, comprising
eminent public citizens with Justice V R Krishna Iyer as its Chairman, liii was
constituted by an order dated October 27, 1972. The committee completed its work
on May 27, 1973, with the submission of its Legal Aid Expert Committee Reportliv of
275 pages.lv According to Justice P. N. Bhagwati Legal Aid meant construction of a
society where administration of justice could be quickly accessible by the justice
seekers for timely enforcement of their rights.lvi In the year 1980, Government of
India by a Resolution dated 26th September, 1980 appointed the "Committee for
Implementing Legal Aid Schemes" (CILAS) under the Chairmanship of Mr. Justice
P.N. Bhagwati (as he then was). This historical aspect has been succinctly reflected in
the judgement delivered by the Supreme Court recently in the following words:
The Committee for Implementing Legal Aid Schemes (CILAS) under

the Chairmanship of Mr. Justice P.N. Bhagwati was set up to monitor
and implement legal aid programmes on a uniform basis in all the
States and Union territories. CILAS evolved a model scheme for legal
Aid programme applicable throughout the country by which several
legal aid and advice boards have been set up in the States and Union
territories. CILAS was funded wholly by grants from the Central
Government. The Government was accordingly concerned with the
programme of legal aid as it is the implementation of a constitutional
mandate. But on a review of the working of the CILAS certain
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deficiencies have come to the fore. It is, therefore, felt that it will be
desirable to constitute statutory legal service authorities at the
National, State and District levels so as to provide for the effective
monitoring of legal aid programmes. The Bill provided for the
composition of such authorities and for the funding of these
authorities by means of grants from the Central Government and the
State Governments. Power was been also given to the National
Committee and the State Committees to supervise the effective
implementation of legal aid schemes.lvii
CILAS paved a way for the legislative action to create a statutory space for legal aid in
conformity with the 42nd Constitutional Amendment. However, until the Legal
Services Authorities Act was enacted, the Supreme Court kept guiding the State
machinery for fulfilling its Constitutional obligation of providing free legal services or
free legal aid or free legal representationlviii to the poor and needy who did not have
means to get legal representation in the court of law. In this regard, three cases in
which Supreme Court upheld the Constitutional right to legal aid are worth
recollection. These cases include:
(a) Hussainara Khatoon v. Home Secretary, State of Bihar: In this

case, reference was made to Article 39-A of the Constitution. A division bench
of the Supreme Court of India held that:
[F]ree legal service is an inalienable element of reasonable, fair and

just procedure for a person accused of an offence and it must be held
implicit in the guarantee of Article 21 [of the Constitution]. This is a
constitutional right of every accused person who is unable to engage a
lawyer and secure free legal services on account of reasons such as
poverty, indigence or incommunicado situation. The State is under a
mandate to provide a lawyer to an accused person if the
circumstances of the case and the needs of justice so require, subject of
course to the accused person not objecting to the providing of a
lawyer.lix
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(b) Khatri (II) v. State of Bihar: The principles laid down in the case of
Hussainara Khatoon v. Home Secretary, State of Bihar was later followed in
this case. A division benchlx of the Supreme Court of India in this case
observed that:
[T]he Judicial Magistrate did not provide legal representation to the

accused persons because they did not ask for it. This was recorded to
be unacceptable. The Apex Court went further and held that it was the
obligation of the Judicial Magistrate before whom the accused were
produced to inform them of their entitlement to legal representation at
State cost. In this context, it was observed that the right to free legal
services would be illusory unless the Magistrate or the Sessions Judge
before whom the accused is produced informs him of this right. It
would also make a mockery of legal aid if it were to be left to a poor,
ignorant and illiterate accused to ask for free legal services thereby
rendering the constitutional mandate a mere paper promise.lxi
(c) Suk Das v. Union Territory of Arunachal Pradesh: The three judges
bench of the Supreme Court of India in this case followed the dictum of Khatri (II) v.
State of Bihar and observed that:
[T]he requirement of providing free and adequate legal

representation to an indigent person and a person accused of an
offence. Also, that an accused need not ask for legal assistance - the
Court dealing with the case is obliged to inform him or her of the
entitlement to free legal aid. It was now settled law that free legal
assistance at State cost is a fundamental right of a person accused of
an offence which may involve jeopardy to his life or personal liberty
and this fundamental right is implicit in the requirement of
reasonable, fair and just procedure prescribed by Article 21 [of the
Constitution].lxii
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Not just the Indian judiciary but also the US Courts have placed greater reliance on
the philosophy of free legal service as an essential element of fair procedure. Such as,
Justice Black observed the following:
Not only these precedents but also reason and reflection require us to
recognise that in our adversary system of criminal justice, any perm
held into court, who is too poor to hire a lawyer cannot be assured a
fair trial unless counsel is provided for him. This seems to us to be an
obvious truth. Governments, both State and Federal quite properly
spend vast sums of money to establish machinery to try defendants
accused of crime. Lawyers to prosecute are everywhere deemed
essential to protect the public's interest in an orderly society.
Similarly, there are few defendants charged with crime, few indeed
who fail to hire the beat lawyers they can get to prepare and present
their defences. That Government hires lawyers to procedure and
defendants who have the money hire lawyers to defend are the
strongest indications of the widespread belief that lawyers in criminal
courts are necessities, not luxuries. The right of one charged with
crime to counsel may not be deemed fundamental and essential to fair
trials in some countries, but is in ours. From the very beginning, our
State and national constitutions and laws have laid great emphasis on
procedural and substantive safeguards designed to assure fair trials
before impartial tribunals in which every defendant stands equal
before the law. This noble ideal cannot be realised if the poor man
charged with crime has to face his accusers without a lawyer to assist
him.lxiii
The combination of efforts of the Expert Committee on Legal Aid, CILAS and Indian
judiciary in facilitating legal aid services to the poor and needy laid down a ground
for the legislative action. Thus, the Parliament enacted the Legal Services Act in the
year 1987 towards institutionalisation of legal aid program across the country. This
Act was finally enforced on 9th November 1995 after certain amendments were
introduced therein by Amendment Act of 1994.lxiv The then Chief Justice of India
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played a key role in the enforcement of the Act.lxv With an aim to make legal aid
programme a success, the three judges benchlxvi of the Supreme Court of India held
that in order to accomplish the object of social justice contemplated by Article 39 A
of the Constitution of India, the State should encourage voluntary social service
organisations to come forward and actively participate in legal aid programme so
that benefit of justice would reach the common man more effectively and to a larger
number.lxvii That is, in almost all they major welfare States in the world, it is the basic
democratic value and tenet to protect the individual rights notwithstanding his
standard of income or social class. Failing to keep up such democratic value would
have far reaching consequences thereby resulting in justice becoming a luxury and
available to a privileged few.lxviii It must be appreciated that the situation of crisis of
legal services will not be remedied unless it is attacked as part of a broader problem
of access to the justice system.lxix
Similar observation has been made by the Supreme Court of India that much is yet to
be done in order to ensure that poor and disadvantaged communities can access
justice efficiently. The division bench has categorically observed the following while
appreciating the services till date rendered on the front of legal aid in the Indian
context:
India is acclaimed for achieving a flourishing constitutional order, an

inventive and activist judiciary, aided by a proficient bar and
supported by the State. However, the Courts and Tribunals, which the
citizens are expected to approach for redressal of their grievance and
protection of their fundamental, constitutional and legal rights, are
beset with the problems of delays and costs. In a country where 36 per
cent of the population live below the poverty line, these deficiencies in
the justice delivery system prevent a large segment of the population
from availing legal remedies. The disadvantaged and poor are
deprived of access to justice because of the costs of litigation, both in
terms of actual expenses and lost opportunities, and the laudable goal
of securing justice - social, economic and political enshrined in the
Preamble to the Constitution of India remains an illusion for them.
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The infrastructure of Courts and the processes which govern them are
simply inaccessible to the poor. The State, which has been mandated
by Article 39A of the Constitution to ensure that the operation of the
legal system promotes justice by providing free legal aid and that
opportunities for securing justice are not denied to any citizen by
reason of economic or other disabilities, has not been able to create an
effective mechanism for making justice accessible to the poor,
downtrodden and disadvantaged. In last two and a half decades the
institution of the legal services authorities has rendered yeoman's
service in the field of providing legal aid to the poor but a lot is
required to be done for ensuring justice to economically deprived
section of the society and those who suffer from other disabilities like
illiteracy and ignorance.lxx
It must therefore be understood that failing to expedite the accessibility of free and
quality legal services would be fatal for the justice delivery system by promulgating a
sense of injustice amongst the disadvantaged groups and weaken the cherished
constitutional and human right to equality.lxxi Indian Supreme Court has also noted
that the poor and those ill equippedlxxii with the knowledge and understanding of law
are in dire need of legal services, this would in turn lead to a for a wholesome
development of the society. There cannot be any pretext of financial constraint or
burden on public exchequer by the State to not comply with such growing concern of
facilitating legal assistance to the indigent persons devoid of legal help. lxxiii Finally, it
can be concluded that the most of the observations of the Supreme Court of India
made during late 1970s and 1980s remains impervious of time in Indian context even
in the new century when the country has started being recognised as an upcoming
economic power.lxxiv
Nevertheless, although the legal aid program is still continuing at the taluka level,
district level, state and the national level, access to justice for an ordinary villager is
even today a distant reality and an unaccomplished dream. In order to make justice
delivery services available to people at the grass-root, the Law Commission of Indias
recommendation given way back in 1986lxxv, was given effect in the form of Gram
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Nyayalayas Act in the year 2008. Given it a new law, we must briefly identify the
objectives of Gram Nyayalayas Act through which this law aims to enhance access to
justice for the people at the grass-root.
V. Gram Nyayalayas for Access to Justice at the Doorstep
The Indian legal history stands testimony that periodically the dismal scenario of
justice dispensation has been studied, probed and analysed by several expert level
committees since independence. Almost twelve such studies have been made by the
Law Commission of India itself.lxxvi This subject took a final shape in the form of the
114th Report of the Law Commission on Gram Nyayalayas. In this report the Law
Commission recommended for establishing such an institution as the first interface
between the rural people and the justice delivery system of the country. lxxvii The Law
Commission of Indias study clearly highlighted the rural poor as the worst victims of
the existing justice delivery mechanism which is grappling with numerous
challenges.lxxviii
Consequently, the institution of Gram Nyayalaya is seen as the States affirmative

action of facilitating justice delivery to the rural poor who are most often distanced
from such an access for reasons for geographical disadvantage, heavy court fees,
cumbersome procedure and also the exorbitant fees charged by the lawyers.lxxix The
objects and reasons of the Gram Nyayalayas Act of 2008 clearly outline that access to
justice is the true spirit of this statue and aims to provide justice delivery services
even to the farthest located last man or woman in the village. The objective of this
law has been rightfully placed in the statute in the following words:
To provide for the establishment of Gram Nyayalayas at the grass-

roots level for the purposes of providing access to justice to the
citizens at their doorsteps and to ensure that opportunities for
securing justice are not denied to any citizen by reason of social,
economic or other disabilities and for matters connected therewith or
incidental thereto.
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This law has envisioned in great details the scheme for facilitating access to justice to
the village man and woman. In order to enhance the level of justice delivery services
at the doorstep in keeping with its objective, the law mandates the establishment of
one or more Gram Nyayalayas for every Panchayat at intermediate level. lxxx In
furtherance of the same objective, organising mobile courts is one of the important
mandates envisioned under the Gram Nyayalayas Act of 2008.lxxxi Very innovatively
this law has mandated that mobile courts would be conducted where necessary to
enhance the outreach of rural justice by this institution. The Gram Nyayalayas Act
has also made clear provision to ensure that justice delivery is affordable by the
people for whom the law was enacted. In this regard, the law provides levy as low as
rupees one hundred a court fee for civil suits instituted before Gram Nyayalayas. lxxxii
In order to facilitate resolution of disputes in an amicable manner, the law also
provide that efforts shall be made by Gram Nyayalaya to assist, persuade and
conciliate the parties in arriving at a settlement in respect of the disputes.lxxxiii
These significant provisions of Gram Nyayalayas Act indicate legislative attempt to

re-structure the institutional mechanism at the grass-root level towards furthering
the access to justice to a common man. Only the satisfactory implementation of this
law by way of establishing Gram Nyayalayas at every Panchayat level followed by
proper implementation of the above provisions would facilitate a concrete step
towards fulfilling the objectives of this lawlxxxiv. Mere 194 Gram Nyayalayas have
been notified in India until 15th December 2016lxxxv. Thus, until greater number of
Gram Nyayalayas will be established chances would remain slim for achieving the
objectives of this law in ensuring justice delivery to the rural people at their doorstep.
VI. Conclusion
Discourse on access to justice has travelled very far in more than 60 years of
independent India but the debate is still alive and relevant. Several legislative as well
as judicial efforts have been made in facilitating greater access to justice delivery by a
common man even at the village level. The latest legislative action in this direction is
undeniably the creation of structure of Gram Nyayalayas at the Panchayat level. The
judgement of the Supreme Court of India in the case of Anita Kushwaha vs Pushap
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Sudan (2016) 8 SCC 509 this year has set the new tone for access to justice by
declaring access to justice as the fundamental right. Now the formal declaration of
this right under the aegis of Article 21 would hopefully pave a way for enhanced
pressure on the State to expedite the establishment of Gram Nyayalayas across the
country. Striving for access to justice is always a work in progress and each one of us
shall remain committed to this agenda in our own creative ways.
References:
* The first author is Assistant Professor of Law, National Law University Odisha and presently on
deputation in the Supreme Court of India as Assistant Registrar (Research). The views expressed are
purely personal and do not in any way reflect the opinion of the institutions with whom the author is
working.
** The second author is an independent researcher and alumni of two national law universities in
India.
iAlbert Fiadjoe, Alternative Dispute Resolution: A Developing World Perspective (Cavendish

Publishing Ltd. 2004) vii
iiFiadjoe (n 1) ix
iiiSee
generally, Ugo Mattei, Access to Justice. A Renewed Global Issue? (December 2007) Vol. 11.3
Electronic Journal of Comparative Law
ivJustice, in the sense of promoting equality, can be said to have two aspects namely, distributive
justice and corrective justice. The purpose of distributive justice is to ensure a fair division of social
benefits and burdens to all the members of the society. Establishment of distributive justice is
primarily attained through constitution-making and by legislation. The job of the courts is primarily
to apply the existing rules in order to establish corrective justice. The function of distributive justice is
to ensure fairness when it comes to division of social benefits and burdens amongst the members of
a society; Distributive justice thus seeks to secure a balance or equilibrium amongst the members of a
society. The balance thus sought to achieve can be disrupted in a case, where A a person goes on to
wrongfully seize the property legally acquired by another person B. In such a situation the role of
corrective justice comes in to establish a balance where disequilibrium has thus occurred.
vDavid M. Walker, The Oxford Companion to Law (OUP 1980) 1689
viThe term Justice in the Preamble of the Constitution of India refers to the political, social and
economic aspects which are secured through Fundamental Rights and the Directive Principles of State
Policy. Such constitutional promise of securing for all citizens social, economic and political justice, as
enshrined in the preamble to the Constitution of India, is realized when the three organs of the state
legislature, executive and judiciary join together in their efforts to find ways and means for
providing the poor with equal access to the justice system.
viiTheState shall secure that the operations of the legal system promote justice, on the basis of equal
opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any
other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities.
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In the case of Anita Kushwaha v. Pushap Sudan (2016) 8 SCC 509, the Supreme Court further held
viii
that access to justice may as well be the facet of the right guaranteed under Article 14 of the
Constitution, which guarantees equality before law and equal protection of laws to not only citizens
but non-citizens also. It is as much available in relation to proceedings before Courts and tribunal and
adjudicatory fora where law is applied and justice administered.
ixJohn Rawls, A Theory of Justice (Harvard University Press 1997) 11
x S. Shepherd Tate , Access to Justice (1979) 65 (6) American Bar Association Journal 904-907
xiRajneesh Kumar Patel, Administration of Justice in India: Ethics and Accountability (Deep & Deep
Publications Pvt. Ltd. 2011) xi
xiiJohn Sasson, Ancient Laws and Modern Problems: The balance between justice and a legal system
(Intellect Books 2004) 7
xiiiPatel (n 11) 1
xivInorder to ensure safely, security is to be ensured. Security ensures and makes possible the
enjoyment of life, property, liberty and equality.
xvThomas Hobes, De Cive (S. P. Lamprecht ed, Appleton-Century 1949) pt II, xiii, 2 in Patel (n 11) 2
xviReportof the Task Force on Law and Enforcement of the National Commission on the Cause and
Prevention of Violence, Law and Order Re-consider (Washington 1970) in Patel (n 11) 2
xviiPatel (n 11) 2
xviiiEdgarBodenheimer, Jurisprudence: The Philosophy and Method of Law (Universal Law

Publishing 2009) 179
xixState of Bombay v. Narothamdas Jethabai and Anr. [1951] AIR 69 para 8 (SC)
xxJ. R. Spencer ed, Jacksons Machinery of Justice (Universal Law Publishing Co. 2005) 3
xxiAnupBhushan Vohra v. The Registrar General, High Court of Judicature at Calcutta [2011] 13 SCC
393 para 21
xxiiS. P. Gupta v. President of India [1982] AIR 149 para 734 (SC) ( hereinafter Judges Transfer Case)
xxiiiJustice
A.C. Gupta, Justice D.A. Desai, Justice E.S. Venkataramiah, Justice P.N. Bhagwati, Justice
R.S. Pathak, Justice S. Murtaza Fazal Ali and Justice V.D. Tulzapurkar
xxivSee generally Imtiyaz Ahmad v. State of Uttar Pradesh [2012] 2 SCC 688
xxvQCOSS Policy Position, Human Rights and Access to Justice [November 2009] Queensland
Council of Social Service (QCOSS) 1
<https://www.qcoss.org.au/sites/default/files/QCOSS_Policy_Position_Nov_2009_Justice_and_H
uman_Rights_0.pdf>. accessed on 15 November 2015
xxviTheSustainable Development Goals (SDGs) aim to significantly reduce all forms of violence, and
work with governments and communities to find lasting solutions to conflict and insecurity.
Strengthening the rule of law and promoting human rights is key to this process, as is reducing the
flow of illicit arms and strengthening the participation of developing countries in the institutions of
global governance. See generally, <
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http://www.undp.org/content/undp/en/home/mdgoverview/post-2015-development-agenda/goal-
16.html> accessed on 20 November 2015
Sustainable Development Goals, Goal 16 is dedicated to the promotion of peaceful and inclusive
xxvii
societies for sustainable development, the provision of access to justice for all, and building effective,
accountable institutions at all levels. See generally,
<http://www.un.org/sustainabledevelopment/development-agenda/> accessed on 20 November
2015. Peace, stability, human rights and effective governance based on the rule of law are important
conduits for sustainable development, see generally <
http://www.undp.org/content/undp/en/home/mdgoverview/post-2015-development-agenda/goal-
16.html> accessed on 20 November 2015
xxviiiSee generally Towards a Sustainable Agenda <

http://www.un.org/sustainabledevelopment/development-agenda/> accessed on 20 November 2015;
also see generally < http://www.undp.org/content/undp/en/home/mdgoverview/post-2015-
development-agenda/goal-16.html> accessed on 20 November 2015
xxixInternational Covenant on Civil and Political Rights, Article 14 [Adopted and opened for signature,
ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 and
entry into force 23 March 1976]:
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal
charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair
and public hearing by a competent, independent and impartial tribunal established by law. The press
and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre
public) or national security in a democratic society, or when the interest of the private lives of the
parties so requires, or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice; but any judgement rendered in
a criminal case or in a suit at law shall be made public except where the interest of juvenile persons
otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved
guilty according to law.
3. In the determination of any criminal charge against him, everyone shall be entitled to the following
minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which
he understands of the nature and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to communicate with
counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own
choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance
assigned to him, in any case where the interests of justice so require, and without payment by him in
any such case if he does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against him;
(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in
court;
(g) Not to be compelled to testify against himself or to confess guilt.
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4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the
desirability of promoting their rehabilitation.
5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by
a higher tribunal according to law.
6. When a person has by a final decision been convicted of a criminal offence and when subsequently
his conviction has been reversed or he has been pardoned on the ground that a new or newly
discovered fact shows conclusively that there has been a miscarriage of justice, the person who has
suffered punishment as a result of such conviction shall be compensated according to law, unless it is
proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
7. No one shall be liable to be tried or punished again for an offence for which he has already been
finally convicted or acquitted in accordance with the law and penal procedure of each country.
xxxRightsof the Accused of Rome Statute of the International Criminal Court, Article 67 [Adopted by
the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an
International Criminal Court on 17 July 1998, Entry into force: 1 July 2002]:
1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard
to the provisions of this Statute, to a fair hearing conducted impartially, and to the following
minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language
which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely
with counsel of the accused's choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or
through legal assistance of the accused's choosing, to be informed, if the accused does not have legal
assistance, of this right and to have legal assistance assigned by the Court in any case where the
interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and
examination of witnesses on his or her behalf under the same conditions as witnesses against him or
her. The accused shall also be entitled to raise defences and to present other evidence admissible
under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are
necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to
the Court are not in a language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a
consideration in the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as
practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she
believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused,
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or which may affect the credibility of prosecution evidence. In case of doubt as to the application of
this paragraph, the Court shall decide.
xxxiRight to a Fair Trial, Article 6 (1) In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly
but the press and public may be excluded from all or part of the trial in the interests of morals, public
order or national security in a democratic society, where the interests of juveniles or the protection of
the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in
special circumstances where publicity would prejudice the interests of justice.
Universal Declaration of Human Rights, Article 10 Everyone is entitled in full equality to a fair
xxxii
and public hearing by an independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him. The Universal Declaration of Human Rights
(UDHR) is a milestone document in the history of human rights. Drafted by representatives with
different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed
by the United Nations General Assembly in Paris on 10 December 1948 General Assembly resolution
217 A as a common standard of achievements for all peoples and all nations. It sets out, for the first
time, fundamental human rights to be universally protected, see generally <
http://www.un.org/en/universal-declaration-human-rights/> accessed on 25 November 2015
xxxiiiLord
Denning, What Next in Law (London Butterworths 1982) 81 in Manoj Kumar (ed.), Legal
Aid in India (2011) 30 Delhi Law Review 88
Nupur Saxena, Critical Appraisal of Pro Bono Verito Services at the Global Panorama in Raman
xxxiv
Mittal and K. V. Shreemithun (eds), Legal Aid Catalyst for Social Change (Legal Aid Society, Campus
Law Centre, University of Delhi, Satyam Law International 2012) 12
xxxvPowell v. Alabama [1932] 287 U.S. 45
xxxviJustice S. Muralidhar is presently the serving judge in the High Court of Delhi.
xxxviiS.
Muralidhar, Law Poverty and legal Aid: Access to Criminal Justice (LexisNexis Butterworths
2004) 1
Sue Bruce, Elsje van Moorst, Sophia Panagiotidis, Community Legal Education: Access to
xxxviii
Justice (1992) 17 (6) Alternative L. J. 278
xxxix Sheela Barse v. State of Maharashtra [1983] AIR 378 (SC)
xlKrishna Agarwal. Justice Dispensation Through the Alternative Dispute Resolution System in India
(2014) 1 (2) Russian Law Journal 65
xliJustice
Kuldip Singh (the then judge of the Supreme Court of India) and Justice K.S. Paripoornan
(the then judge of the Supreme Court of India)
xlii State of Maharashtra v. Manubhai Pragaji Vashi and others [1995] 5 SCC 730 para 17
xliiiE. Stephen Derby, Public Legal Assistance in Baltimore City (1966) 26 (4) Maryland Law Review
328
xlivAlanW. Houseman, Civil Legal Assistance for the Twenty-First Century: Achieving Equal Justice
for All (1998) 17 (1) Yale Law & Policy Review 373
http://digitalcommons.law.yale.edu/ylpr/vol17/iss1/13<> accessed on 25 November 2015
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xlvSarahLeah Whitson, "Neither Fish, Nor Flesh, Nor Good Red Herring" Lok Adalats: An Experiment
in Informal Dispute Resolution in India (1992) 15 Hastings Int'l & Comp. L. Rev. 393
xlviLegalDepartment, Government of Bombay, Report of the Committee on Legal Aid and Legal Advice
in the State of Bombay (1950) in Oliver G. Koppell, Legal Aid in India, (1966) 8 J. of The Indian Law
Institute 25
xlviiOliver
G. Koppell, Legal Aid in India, (1966) 8 J. of The Indian Law Institute 224-225. (Bhagwati
was then a judge of the Bombay High Court)
xlviiiSee
generally, Norman S. Marsh, The Rule of Law in a Free Society (International Commission of
Jurists 1959)
xlixSarah Leah Whitson, "Neither Fish, Nor Flesh, Nor Good Red Herring" Lok Adalats: An
Experiment in Informal Dispute Resolution in India (1992) 15 Hastings Int'l & Comp. L. Rev. 393. See
also, Oliver G. Koppell, Legal Aid in India, (1966) 8 J. of The Indian Law Institute 224-225
lKoppell (n 47) 226. See also, Sarah Leah Whitson, "Neither Fish, Nor Flesh, Nor Good Red Herring"
Lok Adalats: An Experiment in Informal Dispute Resolution in India (1992) 15 Hastings Int'l & Comp.
L. Rev. 394
liSupreme Court of India Rules, 1966, Order XXI (25), Gazette of India Extraordinary, January 15,
1966, at 42 in Koppell (n 47) 226. See also, Sarah Leah Whitson, "Neither Fish, Nor Flesh, Nor Good
Red Herring" Lok Adalats: An Experiment in Informal Dispute Resolution in India (1992) 15 Hastings
Int'l & Comp. L. Rev. 394
liiTheMinistry of Law, Justice and Company Affairs, Department of Legal Affairs of Government of
India constituted the Expert Committee on Legal Aid in 1972. The committee was asked to consider
the question of making available legal advice and legal aid "to the weaker sections of the community"
and to "persons of limited means in general and citizens belonging to the socially and educationally
backward classes in particular".
liiiTheother export members were: L. M. Singhvi, Jai Sukh Lai Hathi, N. K. Ramamurthi, D. P. Singh,
Harish Chandra, Lakshmi Raghuramaiya, N. R. Madhava Menon, Gopi Nath Dixit, Kanwarlal Sharma,
P. B. Venkatsubramaniam (Member Secretary)
livThe Report is titled: "Processual Justice to the People" (May 1973). Hereafter, it will be referred to
simply as the Legal Aid Expert Committee Report, both in the text and notes. The Report was
submitted in a very short time; in-deed, the speed is remarkable considering the wide-ranging terms
of reference.
lvUpendra Baxi, Legal Assistance to the Poor: A Critique of the Expert Committee Report (1975)
Economic and Political Weekly 1005
lviProcessual
Justice to the People, Report of the Expert Committee on Legal Aid (1971) in Manoj
Kumar, Legal Aid in India (2011) 30 Delhi Law Review 89
lviiSee generally, Bar Council of India v. Union of India [2012] 8 SCC 243
lviiiAll terms being understood as synonymous
lixHussainaraKhatoon v. Home Secretary, State of Bihar [1980] 1 SCC 98 in Rajoo @ Ramakant v.

State of Madhya Pradesh [2012] 8 SCC 553
lx Justice P. N. Bhagwati and Justice A. P. Sen, the then judges of the Supreme Court of India
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Khatri (II) v. State of Bihar [1981] 1 SCC 627 in Rajoo @ Ramakant v. State of Madhya Pradesh
lxi
[2012] 8 SCC 553
Suk Das v. Union Territory of Arunachal Pradesh [1986] 2 SCC 401 in Rajoo @ Ramakant v. State
lxii
of Madhya Pradesh [2012] 8 SCC 553
lxiiiSee
generally, Gideon v. Wainwright, [1963] 372 US 335: 9 L Ed 799 in (a) Hussainara Khatoon
v. Home Secretary, State of Bihar [1980] 1 SCC 98
lxivManoj Kumar, Legal Aid in India (2011) 30 Delhi Law Review 92
lxvLegalAid Movement in India - Its Development and Present Status < http://nalsa.gov.in/>
accessed on 30 November 2015
lxviJustice
P. N. Bhagwati, Justice V. Khalid and Justice M. M. Dutt, the then judges of the Supreme
Court of India
lxviiCentre for Legal Research v. State of Kerala [1986] 2 SCC 706
Gresham M. Sykes, Legal Needs of the Poor in the City of Denver (1969) 4 (2) Law & Society
lxviii
Review 255
Denise R. Johnson, The Legal Needs of the Poor as a Starting Point for Systemic Reform (1998) 17
lxix
(1) Yale Law & Policy Review 480
lxxNew India Assurance Co. V. Gopali [2012] 12 SCC 198 paras 1-2
lxxiSupriyoRouth, Providing Legal Aid: Some Untried Means (2008) 50 (3) Journal of The Indian
Law Institute 376
lxxiiSee generally, M.H. Hoskot v. State of Maharashtra [1978] 3 SCC 544
lxxiiiSee generally, Khatri v. State of Bihar [1981] AIR 928 (SC)
lxxivRouth (n 71)
lxxv Law Commission of India, Gram Nyayalaya (Law Com No. 114, 1986).
lxxviSee generally, L. Chandra Kumar v. Union of India [1997] 3 SCC261.
lxxviiSee
generally, the Law Commission of India in its Law Commission of India, Gram Nyayalaya
(Law Com No 114, August 1986) Chapter 3
Unmanageable backlog of cases, mounting arrears and inordinate delay in disposal of cases in
lxxviii
courts at all levelslowest to the highestcoupled with exorbitant expenseshave attracted the
attention of not only the members of the Bar, consumers of justice (litigants), social activist, legal
academics and Parliament but also the managers of the courts. This was noted by the Law
Commission of India in its Law Commission of India, Gram Nyayalaya (Law Com No 114, August
1986) Chapter 3.
lxxixSee
generally, Shishir Bail, From Nyaya Panchayats to Gram Nyayalayas: The Indian State and
Rural Justice (2015) 11 Socio-Legal Review 83.
lxxx Gram Nyayalayas Act 2008, s 3(1), Establishment of Gram Nyayalayas-
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For the purpose of exercising the jurisdiction and powers conferred on a Gram Nyayalaya by this Act,
the State Government, after consultation with the High Court, may, by notification, establish one or
more Gram Nyayalayas for every Panchayat at intermediate level or a group of contiguous Panchayats
at intermediate level in a district or where there is no Panchayat at intermediate level in any State, for
a group of contiguous Gram Panchayats
lxxxiGram Nyayalayas Act 2008, s 9
Nyayadhikari to hold mobile courts and conduct proceeding in villages
(1) The Nyayadhikari shall periodically visit the villages falling under his jurisdiction and conduct trial
or proceedings at any place which he considers is in close proximity to the place where the parties
ordinarily reside or where the whole or part of the cause of action had arisen:
Provided that where the Gram Nyayalaya decides to hold mobile court outside its headquarters, it
shall give wide publicity as to the date and place where it proposes to hold mobile court.
(2) The State Government shall extend all facilities to the Gram Nyayalaya including the provision of
vehicles for holding mobile court by the Nyayadhikari while conducting trial or proceedings outside its
headquarters.
See Gram Nyayalayas Act, 2008, s 24 (1). This low cost court fee would in no case be exorbitant to
lxxxii
the litigants and would also allow the Gram Nyayalayas to meet out its administrative charges towards
such applications filed by the litigants.
lxxxiiiGram
Nyayalayas Act 2008, s 26 (1), Duty of Gram Nyayalaya to make efforts for conciliation and
settlement of civil disputes-
In every suit or proceeding, endeavour shall be made by the Gram Nyayalaya in the first instance,
where it is possible to do so, consistent with the nature and circumstances of the case, to assist,
persuade and conciliate the parties in arriving at a settlement in respect of the subject matter of the
suit, claim or dispute and for this purpose, a Gram Nyayalaya shall follow such procedure as may be
prescribed by the High Court.
As per the information given by the former Union Law & Justice Minister Shri D.V. Sadananda
lxxxiv
Gowda in reply to a written question in the Lok Sabha on 9th March, 2015, a total of 194 Gram
Nyayalayas were established and notified in 10 States in India. The break up of such notified Gram
Nyayalayas include- 89 in Madhya Pradesh; 45 in Rajasthan; 2 in Karnataka; 16 in Odisha; 18 in
Maharashtra; 6 in Jharkhand; 2 in Goa; 2 in Punjab; 2 in Haryana; 12 in Uttar Pradesh. Available at
<http://pib.nic.in/newsite/PrintRelease.aspx?relid=116631> accessed 15 December 2016
lxxxv Ibid.
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Appointment of the Judges of the High Court in Australia:
A Critique
Rangin Pallav Tripathy*
ABSTRACT
The method by which judges are appointed is not simply an issue of

constitutional governance but has significant implications on a range
of discourses. The power and responsibility entrusted to the judges in
modern constitutional governments makes it imperative to ensure
that the selected method of appointing judges results in consistently
good appointments. In this article, the author has sought to present a
critical analysis of the method of appointment adopted for the
appointment of the judges of High Court of Australia. The author has
looked into the issues of merit and transparency and how the system
is heavily dependent on the character of individuals involved in the
process. It is the argument of the author that the appointment process
lacks sufficient objectivity and is prone to manipulation. The author
contends that any institutional process which is dependent on the
assumed integrity of the stakeholders without incorporating inherent
safeguards is bound to cause problems at some point of the time or
other.
Keywords: High Court, Judicial Independence, judiciary,

appointment, judicial appointment Commission etc.
I. Introduction
The High Court of Australia is the highest judicial authority of the land. In different
States of Australia, there are two separate but interrelated structures of the judiciary
in relation to federal and state matters. However, the High Court of Australia
functions as the single highest court of the land in relation to both federal and state
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matters.i In addition to having its federal jurisdiction under Article 71 of the

Australian Constitution,ii the High Court also functions as the Highest Court of
Appeal in relation to any matter arising from State Supreme Courts, regardless of the
existence of any federal element in the dispute.iii Though not as influential in the
governmental scheme as the Federal Supreme Court of the United State of America, iv
the High Court of Australia has earned a distinctive reputation of representing the
finest attributes of any judicial body.v
II. Appointment of Judges to the High Court of Australia
The constitutional provision regarding the appointment of judges to the High Court
of Australia is incorporated in Section 72 of The Commonwealth of Australia
Constitution Act 1900.
[a] Appointing Authority
Though Section 72 [i] provides that the Justices of the High Court shall be appointed
by the Governor-General in Council, in reality, the actual control over the
appointment process is exercised by the Federal Government. vi The Governor-
General in Council has no independent authority on the matter and functions
necessarily on the recommendations of the federal government.vii A similar reality
can be seen also in the appointment process of state level courts where the authority
is exercised by the state governments.viii Both the Governor-General in Council as the
federal level and the Governor in Council at the state level play a formal roleix in the
appointment of judges.x The real authority in this relation is exercised by the
respective governments at the federal and state level.xi
[b] Qualification
The Australian Constitution makes no provision regarding the qualifications

necessary to be a judge of the High Court of Australia. The constitution provides no
eligibility criteria of any kind in order for a person to be appointed as a judge to the
High Court.xii However, this oversight has been subsequently corrected by way of The
High Court of Australia Act 1979. Section 7 of the said statute prescribes that a
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person shall not be appointed as a judge unless he is or has been a judge of any
federal court, state court or a court of any territory or he has had at least five years of
experience as a legal practitioner.xiii In relation to the requirement of being a judge,
no parameter has been mentioned in relation to the minimum number of years for
which a person must have served as a judge to be considered for appointment to the
High Court of Australia.
Though there are no statutory parameters on which the fitness of an appointee is

evaluated, the Report of the Senate Legal and Constitutional Affairs Committee on
Australias Judicial System and the Role of Judgesxiv reveals a set of characteristics
which are generally taken into consideration while appointing a judge to any Federal
Court including the High Court of Australia. These qualities are mostly of general
nature including the commitment to professional development, legal expertise,
integrity, decision-making skills and other such related qualities.xv
[c] Procedure of Appointment
In the federal government, the most important role regarding judicial appointments
to the High Court of Australia is played by the federal Attorney General. xvi It is the
office of the Attorney-General which initiates the process of filling up any vacancy in
the High Court. The Attorney-General is responsible for making the necessary
recommendations to the cabinet of the federal government of individuals to be
appointed as judges to the High Court of Australia. In the discharge of his functions
in relation to the nominating appointees for the High Court, the Attorney General is
not subject to any specific statutory procedure. The only statutory requirement xvii
which he must fulfil before any appointment is made is to consult with the Attorney
Generals of States in relation to the appointment.xviii Even in relation to this statutory
requirement of consultation, no parameters exist as to the manner in which such
consultation is supposed to be made. There is no clarity as to whether this
consultation process can be merely nominal in substance without any real
significance on the decision of the Attorney-General.xix Apart from this minimal
consultative process, each individual Attorney General is free to follow such process
as he may deem appropriate and consult such persons as he may deem necessary. xx
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Generally, the Attorney Generals consult and seek opinions of a wide range of
persons in the process of deciding upon the appointment of High Court Judges which
apart from various judicial offices and professional legal bodies also includes legal
academics.xxi
As such there is no legal requirement for the Attorney General to consult with
members of the judiciaryxxii but not unusual for Attorney Generals to consult with the
Chief Justice or other members of the judicial profession as they deem necessary.
However such consultation is not necessary for the validity of the appointment
process and it is also not uncommon for an Attorney General to ignore any advice or
recommendation by way of such consultation.xxiii
The report of the Senate Legal and Constitutional Affairs References Committee also
discloses the practice of Attorney Generals to constitute an advisory panel for
providing advice in the matter of appointment to the Federal Courts. Such an
advisory panel usually consists of a senior member of the Attorney-Generals
department, a retired judge of the federal or state court or a senior member of the
federal or state judiciary and the Chief Justice or a nominee of the Chief Justice.xxiv
The Advisory Panel is also empowered to conduct interview of prospective
appointees in order to facilitate the preparation of its report on the nominated
individuals.xxv
Despite this apparently wide ranging consultation, there is no definite process which
the Attorney General is required to follow in respect to the modalities of the
consultative process. There is no uniform or consistent manner in which opinions are
sought. Usually, the Attorney-Generals are known to have been following an
unofficial consultation process wherein they make personal inquiries in relation to
the prospective appointees.xxvi However, these consultative practices are mostly
unstructured and are not centred on any specific set of criteria in relation to which
these inquires are made.xxvii There are no established or consistent parameters in
relation to which views are sought about the prospective appointees.
Thus, the selection process undertaken by the office of the Attorney General is not
necessarily an institutional framework of consistent practices. It depends more on
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the person occupying the office of the Attorney General and loose strands of
traditional practices.xxviii The nuances of the selection process are likely to be subject
to the differing philosophies of individuals occupying the office of the Attorney-
General.xxix
After finalising his recommendations, the Attorney-General forwards the list of

recommended appointees to the Cabinet of the federal government which then takes
a collective decisionxxx regarding confirming or reject the names recommended by
the Attorney-General. Though the cabinet usually accepts the recommendation of the
Attorney-General, there have also been instances where the Cabinet has not
confirmed the recommendation of the Attorney-General and instead opted for
somebody not mentioned by the Attorney-General.xxxi Though no clear grounds exist
as the reasons for which the Cabinet would reject a candidate recommended by the
Attorney-General, the limited record available shows that more often than not such
rejection is prompted by political considerations not directly dealing with the merit
credentials of the candidate.xxxii The formal recommendation to the Governor-
General in Council is made by the Attorney General after approval of the
nominations by the cabinet.xxxiii
III. Critical Analysis of the Appointment Process
While it is the general opinion that the existing mechanism of judicial appointment
has been an overall success in securing appointment of highly qualified judges,
concerns remain about the inevitable consequences of inherent deficits in the
appointment process.xxxiv The current process of appointment relies too heavily on
the wisdom of a few individuals instead of ensuring a streamlined institutional
process which will make it more difficult for impropriety to seep into the mechanism.
There are no built in safeguards to ensure that the appointment process is free of
abuse and manipulation.xxxv
The first major criticism in relation to the process of appointment is concerning the
opaque nature of the entire process. There is no clarity as to the effectiveness of even
the consultative process statutorily mandated by the High Court of Australia Act
1979.xxxvi Though the Federal Attorney General is required to consult with the state
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Attorney Generals, there is no explanation as to the nature of the consultation.xxxvii

There is also no clarity as to the official consequence of any such consultation and the
context in which such consultation is supposed to contribute to the appointment
process.
It needs to be noted that apart from the abovementioned statutorily required

consultation, the entire process of appointment is left to the judgement and wisdom
of individual Attorney Generals. Though it has been seen that Attorney Generals
usually consult with a variety of entities when deciding upon the nomination of
appointees, it needs to be noted that the same is more in the nature of a conventional
practice and not a constitutional necessity. If in future, any Attorney General were to
discontinue such practices, there would not be any constitutional infirmity in the
decision, though it can be questioned on the grounds of propriety.
Substantial concerns also remain about the manner in which consultation takes
place. There is no specific criterion on which opinion is sought about a prospective
appointee. The nature of questions and the range of questions keep on varying. There
is no specific attribute or quality in relation to which opinion is invited. Mostly, the
opinion sough is on more general lines which cannot be shown to be based on any
kind of objective assessment of the qualities of the prospective appointee. Thus even
when extensive consultation is taking place, the purposive nature of the consultative
process and the tangible benefits of the same is not beyond reproach. The Attorney
General is not under any obligation to disclose the content of these consultations or
to reveal any detail about the process by which he finalises his nominations. xxxviii The
parameters on the basis of which the Attorney General can be said to have made his
nominations are neither identifiable nor verifiable.
The decision making process of the Cabinet in relation to the recommendations of

the Attorney-General has even more layers of secrecy. There is no insight into the
evidence considered by the Cabinet while deciding whether to confirm or not confirm
an appointee recommended by the Attorney General. As we have seen earlier, xxxix on
many occasions, the Cabinet has refused to confirm the recommendations of the
Attorney General on grounds other than professional competence.
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The second major criticism in relation to the process of appointment to the High
Court of Australia is the vague criteria on the basis of which appointees are selected.
As we have already seen, there is no clearly articulated constitutional premise upon
which the judicial appointments are based. The Attorney-General supposedly bases
his recommendations on a set of qualitiesxl but there is no clear conceptualisation as
to how these qualities are assessed. Though it is claimed that the appointment to
judicial office is confirmed on the basis of merit,xli there is no documented or
objectively verifiable assessment of the merit of the appointees.
Such a subjective notion of merit assessed in an opaque process of political

consultation brings into question the credibility of the entire appointment process.
This way, the assessment of merit acquires an inconsistent and variable
conception.xlii It is imperative that a selection process bases on the apparent basis of
merit should be evidentiary in nature. Without the objectivity of evidence, mere
assertion of merit as a ground of selection is reduced to mere rhetoric.xliii
Such a subjective and individualized appreciation of merit as a ground of judicial

appointment has substantial repercussions on the collective institutional identity of
the judiciary. An unregulated and personalized application of merit as the criterion of
judicial appointment can degenerate into a biased perception of the meaning of
merit. Individuals are likely to see merit in such people who share similar traits and
qualities as themselves.xliv The idea of merit gets merged into a projected abstraction
of their own self-image. Over a period of time, such practices result in a judiciary
with a mostly homogenous composition which does not reflect the diversity of the
society that it seeks to serve. It is rightly argued that unlike legislators, judges are not
supposed to be representatives of various groups of the society. The duty of a judge is
to uphold the law without any regard to religious, regional, cultural, economic or
social affiliation of himself of that of the parties to the dispute. xlv A judge is not
supposed to reflect the aspirations of his community and is instead expected to
uphold the constitutional values.xlvi However, the confidence of people at large in the
credibility of the judiciary as an institution is likely to be affectedxlvii if the judiciary is
systematically homogenous. Apart from all structural arrangements, public
confidence in the judicial system is one of the non-negotiable requirements of a
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stable society governed by the rule of law.xlviii If the lack of diversity in the
composition of the judiciary is believed to be indicative of exclusionary philosophies
pervading the appointment process, then it is likely to distort the perception of the
public towards the legitimacy of the judicial institution.xlix
The appointment process in Australia has been called into question on the ground
that it promotes certain homogeneityl in the composition of the judiciary.li The
problem identified has not been the appointment of incompetent judges but that
competent candidates not having certain socio-cultural backgroundlii are routinely
ignored for appointment.liii Thus, the appointment process should be oriented to
ensure that the composition of the judiciary does not slip into a default homogeneity.
At the same time, it is essential to remember that the issue of diversity should be
seen as a corollary to the notion of merit and not pursued at the expense of merit. liv
The Senate Legal and Constitutional Affairs References Committee also considered
the issue of ensuring diversity in the composition of the judiciary. While the
committee strongly supported the criterion of merit for judicial appointments,lv it
recognised the value of promoting diversity within the broader framework of merit
where the fundamental principle of selection on merit is not sacrificed at the altar of
diversity.lvi
IV. Proposal of a Judicial Appointments Commission
Considering the inherent inadequacy of the current appointment process in securing

transparency, there have been suggestions to constitute a Judicial Appointments
Commission which would be in charge of ensuring transparent and merit based
appointment procedure for the judiciary.lvii There have been a variety of suggestions
in relation to the proposed composition of such a body and regarding the principles
on which the body will function.lviii However, the Senate Legal and Constitutional
Affairs References Committee has not found it necessary for such a body to be
constituted.lix Though the Committee recognised the value of having such a
commission, it did not consider the creation of a judicial appointments commission
to be an immediately necessary reform.lx Considering the fact that no governmental
entity is keen on transferring the power of appointing judges from the executive to
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any other body,lxi it is unlikely for a judicial commission to be instituted in the near
future.
V. Conclusion
The functioning of the mechanism for the appointment of the judges of the High
Court of Australia has been depended primarily on the assumed integrity and ethics
of the stakeholders involved in the appointment process rather than on any robust
institutional framework. Although there is yet to be any major flashpoint, at least in
public, in relation to the particular appointments made or omitted, the absence of
strong institutional foundations makes that more a merit of history than any merit of
logic. While no institutional structure can function properly without men of
character, it is also inappropriate disregard the value of strong institutional
safeguards in the cover of men of integrity. Thus, it is imperative that for a sustained
assurance of transparency, certain reforms should be implemented.
References:
*Assistant Professor of Law, National Law University Odisha, Cuttack
i A R Blackshield and G Williams, Australian Constitutional Law and Theory: Commentary and
Materials 586 (5th ed., 2010)
ii S. 71, The Commonwealth of Australia Constitution Act 1900, Australia
iii Ibid, s 73;
iv Sir Harry Gibbs, The Appointment and Removal of Judges 17 Federal Law Review 141 (1987); The
constitutional role envisaged for the High Court by the drafters of the Australian constitution was
deliberately more restricted that of the Federal Supreme Court in USA.
v Simon Evans & John Williams, Appointing Australian Judges: A New Model 30 Sydney Law
Review 295 (2008); The judiciary in Australia is held in high esteem when measured in terms of both
is historical contribution and international repute.
vi Julie-Anne Kennedy & Anthony Ashton Tarr,The Judiciary in Contemporary Society: Australia 25
Case Western Reserve Journal of International Law 251 (1993); The executive authority in Australia is
exclusively in charge of deciding upon the appointment of judges at all levels of judicial hierarchy.
vii Rachel Davis & George Williams, Reform of the Judicial Appointments Process: Gender and the
Bench of the High Court of Australia 27 Melbourne University Law Review 819 (2003); The
constitutional provision requiring the Governor-General in Council to appoint the judges of the High
Court essentially means the decisions taken by the Governor-General in Council as advised by the
federal government.
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viii Supra 6
ix Supra 7, The Governor-General in Council has no active role to play in the matter of the
appointment of High Court and the decision in this regard is taken entirely by the executive
government at the federal and state levels.
x Supra 6, The role played by the Governor-General or the Governor is mainly formal in nature.
xi HP Lee, Appointment, Discipline and Removal of Judges in Australia in 28, Judiciaries in

Comparative Perspective (HP Lee (ed), 2011)
xii Supra 7, In the constitutional framework, there is no requirement of any formal qualification in
order for a person to be appointed as a judge of the High Court. The constitution does not even
expressly mandate that a person has to be a lawyer for being appointed as a judge of the High Court.
xiii S. 7, The High Court of Australia Act 1979, Australia
xivSenate Legal and Constitutional Affairs References Committee, Australias Judicial System and the
Role of Judges available at
http://www.aph.gov.au/~/media/wopapub/senate/committee/legcon_ctte/completed_inquiries/20
08_10/judicial_system/report/report_pdf.ashx last seen on 13/1/2015
xv Ibid at para 3.15
xvi Supra 6, In practice, therefore, the Attorney General, as the executive in charge of putting
forward nominations to the Cabinet, is vested with considerable responsibility.
xvii Supra 13, S. 6
xviii Supra 11 at 29
xix Supra 7, Though there is a statutory requirement of consultation, there is no clarity on the extent
and form of such consultative process and there is also evidence of any effect of this consultative
process on the decision making process in case of judicial appointments.
xx Ibid,It is also an usual practice for the Attorney General to hold information discussions and
consultations with different stakeholders including the Chief Justice.
xxi Supra 14 at para 3.12
xxii Supra 4, There is no formal procedure for consultation between the executive and the judiciary
or the legal profession.
xxiii Ibid, However in practice it is not uncommon for an Attorney-General to consult with the Chief
Justice or with other members of the profession with regard to a prospective appointment, but
sometimes an appointment may be made without consultation and sometimes advice may be received
but ignored.
xxiv Supra 14 at para 3.17
xxv Ibid
xxvi Supra 7, The consultative process is not based on any specific set of inquires on identified
criteria. It is most often in the nature of seeking personal opinion in relation to prospective
appointees.
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xxvii Ibid, Also see Sir Harry Gibbs, The Appointment of Judges 61 Australian Law Journal 7 (1987)
xxviii Supra 11 at 28, This is also evident from a discussion paper issued by the office of the Federal
Attorney General in 1993.
xxix Michael Lavarch, The Appointment of Judges in Australian Institute of Judicial Administration
(ed), in Courts in a Representative Democracy (Melbourne 1995) 153; If equity could be said to vary
depending on the size of the Chancellor's foot, then the selection process, for Commonwealth judges at
least, can alter with each Attorney-General.
xxx Supra 6, The ratification of a nomination is the collective decision of the cabinet.
xxxi Ibid,It has to be noted that the cabinet is not bound to accept the recommendations made by the
Attorney General and its role is not merely formal. The cabinet may also reject the recommendation of
the Attorney General and decide on the appointment of a different person.
xxxii Supra 7, Generally, there is no clarity on the nature of information available with the cabinet
when it considers the candidature of any person. Thus on many occasions, it has been noticed that the
grounds on which the cabinet has rejected the recommendation of the Attorney General vary from the
political ideology of the candidate to the personal equations.
xxxiii Supra 7
xxxiv Supra 5, While the collective strength and quality of the Australian judiciary is not in doubt, it
is the case that particular appointments have attracted criticism, either in relation to the character and
ability of the individual chosen or their conduct while in office. It is a notorious fact that judicial
officers have been appointed, including to the High Court, whose character and intellectual and legal
capacities have been doubted and whose appointments have been identified as instances of political
patronage.
xxxv Supra 11 at 27; Though generally beyond dispute, there have been instances of appointments to
the judiciary seemingly due to political considerations.
xxxviSee Supra 17
xxxviiSee Supra 19
xxxviii Supra 7, During the appointments made in 2003, though the Attorney- General conducted
private interviews with the candidates, he did not reveal the nature of the conversation or the utility of
such an interview in the selection process.
xxxixSee Supra 32 and Supra 33
xl See Supra 16
xli Supra 7, Many Attorney Generals like Daryl Williams and Philip Ruddock have asserted that the
selection of candidates for appointments as judges of the High Court are based only on merit.
xlii Supra 5, Without a definitive understanding of the term merit, the concept is likely to be used by
each decision maker in an entirely subjective manner with differential emphasis of attributes.
xliii Ibid,The selection process should be capable of evidencing the qualities for which a person is
being appointed as a judge. Without an evidentiary proof of the considerations on which the decision
to appoint is based, the process becomes highly susceptible to subjectivity.
xliv Ibid, Without the determination of definitive criteria which constitute merit, the tendency to
promote homogeneity is likely to be unregulated.
xlv Ibid, Judges are not representatives of any group or constituency. Their duty is to do right to all
manner of people according to law without fear or favour, affection or ill-will.Equally, the judiciary as
a whole does not need to be representative of any group or constituency.
xlvi Supra 4, The office of the judges is not of representative character and should never be construed
as such.
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xlvii Supra 5
xlviiiSupra 4, Confidence in the laws, and in the judges who administer them, is an essential
condition of an ordered, stable and civilised society. The confidence of the public in the judiciary can
be maintained only if the judges are seen to be not only fully competent to perform their functions, but
also independent, impartial and of complete integrity...
xlix Ibid, However, it would tend to shake confidence in the judiciary if there were any reason to
believe that the members of any section of society were unfairly excluded from the bench, and for that
reason, where a number of candidates for appointment are of equal merit, it would no doubt be
justifiable to take account of the fact that a group to which one of the candidates belonged was not
fairly represented.
l Supra 6
li Supra 5, A further and persistent general criticism of the appointment process relates to the
resulting composition of the various courts. For instance, speaking in 1983, Justice Lionel Murphy
noted that when it comes to women judges we have not even reached the stage of tokenism. Such
criticisms are not limited to the gender composition of the courts.
lii Supra 6, Accordingly, there is a justified complaint that the Bench tends to be almost exclusively
Anglo-Celtic and upper middle class and therefore not representative of the values of Australian
society as a whole which is growing increasingly pluralistic.
liii Supra 5, The major issue concerning the judicial appointment process in Australia has not been
that candidates with merits have not been appointed. The issue lies in the fact that many segments of
people are ignored or overlooked for judicial appointments despite having the necessary merit.
liv Supra 4, The basic necessity to appoint judges on the basis of merit should not be sacrificed or
abandoned in an effort to make the judiciary more representative of the social demography.
lv Supra 14 at para 3.58
lvi Ibid at para 3.60
lvii Supra 11 at 31
lviii For more see Supra 7 and G Barwick, The State of Australian Judicature 51 Australian Law
Journal 480 (1977)
lix Supra 14 at para 3.89
lx Ibid at para 3.90
lxi Supra 11 at 45; There has been no indication of any interest on the part of the federal government
to transfer the function of judicial appointments to a judicial appointments commission.
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An Evaluation of the Working of the Right to Information

Legislation in Contemporary Democracy
Parikshet Sirohi*
ABSTRACT
The free flow of information from the State to the citizenry and vice
versa, is vital for the health of a modern-day democratic system.
Despite being the largest participatory democracy in the world, the
transition from a feudal society to a modern industrial society, has
been rather slow in India. It is therefore imperative that the citizen-
government partnership is redefined keeping in mind the changed
ground realities. Free flow of information can help to form a truly
democratic society wherein citizens are able to share the required
information with their governmental representatives through
discussion, thus heralding a new era in the countrys democratic
framework. The Right to Information (RTI) Act, 2005 was passed in
our country after years of struggle by people yearning for a more
transparent, accountable and participatory system of governance.
The passing of this law by the Parliament was a notable milestone in
the evolution of our democracy. This Act makes every public
authority responsible for the dissemination of information that it
holds with itself. It also casts a statutory obligation upon the
Competent Authority to maintain and update all its records in a
manner that is consistent with the operational requirements of the
Act. The salient feature of the Indian legislation is that it took into
account the experience of various other countries in enforcing and
implementing laws aimed at ensuring freedom of information. This
Paper attempts to chronicle the progress of RTI legislations and their
working across different jurisdictions.
Keywords: RTI, Self-governance, Transparency, Service Delivery,

Democracy, Citizen Participation, Corruption etc.
I. Introduction
Information is regarded as the oxygen of a vibrant democracy. If people do not know

what is happening in their society and if the actions of those who rule them were to
remain hidden from them, then they would not be able to take part in the affairs of
the society in a meaningful manner and the goal of 'swaraj' or self-determination
would remain a mere chimera. Freedom of expression, free dissemination of ideas
and access to information are, therefore, vital to the functioning of a democratic
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system of government. Scholars refer to the present era as the information age
where knowledge is power. Indias RTI Act, 2005i is based upon the concept of
freedom of information whereby access by the general public to data held by
national governments is guaranteed by law. Swedens Freedom of the Press Act, 1766
is the oldest such law in the world.ii Today, there are over ninety-five countries
across the world, which have implemented some or the other form of freedom of
information legislation. Other countries are working towards introducing such laws
and many regions of countries with national legislation also have local laws. For
instance, all states of the United States have laws governing access to public
documents of state and local entities, in addition to the federal governments
Freedom of Information Act which governs records management of documents in the
possession of the federal government.iii
A basic principle behind most freedom of information legislations is that the burden
of proof falls upon the body from whom the information is asked and not upon the
person asking for it. The person making the request does not usually have to give an
explanation for their actions, but if the information is not disclosed within a specified
period of time, a valid reason has to be given by the public authority for not
furnishing the required information. From the above, it is evident that legislation
has created a right-to-know legal process by which requests may be made for
government-held information, to be received freely or at nominal cost, barring
standard exceptions. Many countries provide constitutional guarantees for the right
of access to information, but usually these are unused in the absence of support
legislation.iv What was once considered to be a governance reform a measure to
make government more accountable to the people - is now widely, if not universally,
recognized as a fundamental human right.v It is significant, for example, that civil
society demands in countries like Tunisia and Egypt have already highlighted the
need for greater transparency, and discussions are ongoing about the possible
adoption of RTI laws in both these countries.vi
Most freedom of information laws do not enjoy jurisdiction over the private sector.
Information held by the private sector cannot be accessed as a legal right. This
limitation creates serious implications upon the right to ensure an information-
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enabled society because today, the private sector is often seen to be performing
several functions that were hitherto, the sole domain of the public sector. As a result,
information that was previously public is now within the private sector, and the
private personnel cannot be forced to disclose such information held by them.vii This
limitation notwithstanding, the RTI law has met with a fair degree of success in the
first decade of its inception in India.
The Supreme Court of India has held that the right to information was included
within the right to freedom of speech guaranteed by of the Constitutionviii and since
this right is available only to citizens, most of the state laws as well as the central law
on RTI have provided for citizens alone to be entitled to seek information. Rule of
law, equal participation in government, transparency, accountability and
responsibility of public authorities are the basic elements of good governance. Thus,
RTI is a powerful tool for strengthening democracy at the grassroots level and
enhancing good governance.
II. Need for RTI Legislation
The right to know is the bulwark of any democratic Government. This right is
essential for the proper functioning of the democratic process. The right to
information is an integral part of the freedom of speech and expression, which is
often regarded as the first condition of liberty. It occupies a preferred position in the
hierarchy of liberties and is seen as giving succour and protection to other liberties.
The expression freedom of speech and expression in Article 19(1) (a) has been held
to include the right to acquire information and disseminate the same. It includes the
right to communicate it through any available media, whether print or electronic or
audio-visual, such as an advertisement, movie, article or speech, etc. This freedom
includes the freedom to communicate or circulate ones opinion without interference
to as large a population in the country, as well as abroad, as is possible to reach.
Communication and receipt of information are two sides of the same coin. The
freedom to receive and disseminate information without any kind of hindrance is
regarded to be an important aspect of freedom of speech and expression.
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Without adequate information, a person cannot form an informed opinion. As early

as 1976, the Supreme Court has laid down that people cannot speak or express
themselves unless they know. Therefore, the right to information is embedded in
Article 19. In the same case, the Apex Court held that India was a democracy and
under this form of government, the people were the masters. Therefore, the masters
had a right to know how the governments, meant to serve them, were functioning.
Further, every citizen pays taxes. Even a beggar on the street pays tax (in the form of
sales tax, excise duty etc) when he buys a piece of soap from the market. The citizens
thus, have a right to know how their money was being spent. These three principles
were laid down by the Supreme Court while saying that the 'right to know' was a part
of our fundamental rights.ix
In a country like ours where the government consists of various agents of the public,
each one of them has to be responsible for their own conduct and hence, there is no
room for maintaining secrets. In the last one decade, the flourishing movement of
RTI in India has significantly empowered the ordinary citizen. He can now exercise a
significant check upon the arbitrary use of power by functionaries of the State and in
this manner, the democratic setup of the country is forever expanding. Freedom of
information is the sine qua non of a democracy and India cannot afford to remain an
exception to this practice.
Historically speaking, the Executive arm of the government in India has been steeped
in a culture of secrecy. This practice, which is prevalent amongst most government
functionaries even today, is often seen to be a relic of colonial rule. It is here that the
RTI law becomes important in changing long-established mindsets and ensuring that
people get to know what is happening inside the labyrinth of government. The
culture of clothing all the actions of the government in utmost secrecy is not
something that will die out in a day, but will require sustained efforts. In the initial
years of RTI, whenever citizens required the disclosure of information proactively, it
was either completely ignored or taken very lightly. Nonetheless, the potential of
transformation by means of the RTI law has already been demonstrated various
times in the last decade. During this period, innovations have been developed in
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practice by the public officials and civil society organizations which may prove to be
of great use to other countries which are ready and willing to adopt similar laws.
The principles of natural justice mandate that an organization or an institution

should be accountable to those who will be affected by its decisions or actions. This
becomes even more important in the case of publicly funded institutions because
their raison d'etre is public interest. Since accountability cannot be enforced without
a regime of transparency, a direct relationship exists between RTI, informed citizenry
and good governance. RTI provides citizens the opportunity of being informed as to
what the government does for them, why it does it and how it does it. Good
governance provides a platform that enables government functionaries to operate
efficiently, effectively and transparently and be accountable to the public for their
actions.x When people lack a voice in the public arena, or access to information on
issues that affect their lives, and if their concerns are not reasonably reflected in the
public domain, their capacity to participate in democratic processes is undermined.
Media, in all its varied forms, has opened up the potential for new forms of peoples
participation in governance. The access to information and accessibility of
information has increased with growth of print and electronic media and the
internet. Today, thanks to RTI, the vulnerable and marginalized sections of the
society and socially disadvantaged groups are also able to make their voices heard.
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III. Legal Framework
RTI is an Act of the Parliament of India and aims to provide for setting out the
practical regime of right to information for citizens and replaces the erstwhile
Freedom of Information Act, 2002.xi Under the provisions of the Act, any citizen
may request information from a public authority, a body of government or
instrumentality of State which is required to reply expeditiously or within thirty
days. The Act also requires every public authority to computerize their records for
wide dissemination and to proactively disclose certain categories of information so
that the citizens need minimum recourse to request for information formally.xii
Information disclosure in India, which was previously restricted by the Official
Secrets Act, 1923 and various other special laws, was relaxed by this new law. Prior
to this, state level RTI laws existed in certain states like Tamil Nadu, Goa, Rajasthan,
Delhi Maharashtra, Assam, Madhya Pradesh, Jammu and Kashmir and Haryana.
The establishment of a national-level law, however, proved to be a difficult task. The
Central Government appointed a working group under Shri H. D. Shourie xiii and
assigned it the task of drafting legislation. The Shourie draft was the basis for the
Freedom of Information Bill, 2000 which eventually became law under the Freedom
of Information Act, 2002. This Act was severely criticized for permitting too many
exemptions, not only under the standard grounds of national security and
sovereignty, but also for requests that would involve disproportionate diversion of
the resources of a public authority. There was no upper limit on the charges that
could be levied. There were no penalties for not complying with a request for
information. This Act, consequently, never came into effective force. xiv
IV. Role of government vis-a-vis success of RTI
Besides the media, pro-activeness on the part of the government also becomes
important in promoting and realizing the true potential of RTI law. Different
countries have progressed at different rates in terms of implementation of this
legislation. Countries like Mexico have set a new international standard for
transparency legislation by handling over 200,000 RTI applications in its first five
years. In Sweden, which was the first country to embrace RTI legislation nearly two
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hundred and fifty years ago, the Government itself conducted an Open Sweden
Campaign in the year 2002 to increase public sector transparency and raise the level
of public knowledge. The Swedish Government was humble enough to accept that
despite the long standing existence of freedom of information in their country, there
were problems with both the application of the law and public knowledge of rights
enshrined under the Freedom of Information Act.xv
Another good practice which RTI laws promote is the automatic provision of
information about services that benefit individuals. Thus, good RTI laws include
wide-ranging proactive publication obligations, including about services. For
example, the South African law requires public authorities to publish, on a proactive
basis (i.e. even in the absence of a request), a description of the services available to
members of the public from the body and how to gain access to those services.xvi
Similar provisions also exist in the Indian law.xvii Once entrenched, these sorts of
proactive disclosures help to foster e-government initiatives, thus rendering
governmental services more efficient and easing access to services. Seen from this
standpoint, the information seeker is actually doing a favour to the concerned
governmental agency by helping them streamline the information that is held in their
possession so that it could be retrieved easily at a later date. This act of streamlining
records could be a major boon for many public authorities in India ranging from
mundane government offices to universities, hospitals, panchayats and schools
whose recordkeeping is often found wanting.
The idea of Open Government Data (OGD), which refers to the disclosure by public
authorities of datasets in open, machine-readable formats, free of copyright or other
re-use restrictions, has become increasingly popular in recent years, thanks to the
advent of RTI legislation. Computer geeks and others have put these datasets to
some very imaginative uses, creating benefits for citizens and businesses alike. It is
widely perceived and believed that OGD makes a significant economic contribution,
and many governments are now making freely available much information that they
used to charge for.xviii An increasing number of municipal governments are setting
up OGD sites, along with some national governments.xix The direct benefits of OGD
are, for the moment at least, largely dependent upon the reach of the internet, which
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remains rather limited in the case of poorer countries like Zambia. However, even in
these countries, things are likely to change in the foreseeable future due to rapidly
increasing internet penetration.
India being a welfare-state, the government has spread its tentacles to virtually every
aspect of public life we have the government providing everything from hotels to
bread, from steel to airlines and from foodgrains to cars. The person on the street is
condemned to grapple hopelessly with corruption in almost every aspect of daily life
be it getting a passport, securing a school admission, an allotment of a petrol pump
or a mutation in the land revenue records. Information is power, and the Executive
at all levels, attempts to withhold information so as to increase its scope for control
and patronage. This has led to the arbitrary, excessive and unwarranted exercise of
power, thus creating a perfect breeding ground for corruption.
Ultimately, the most effective systemic check on corruption would be a situation

wherein the citizen himself or herself has the right to take the initiative to seek
information from the State, and thereby, enforce transparency and accountability. It
is in this context that the movement towards RTI is so important. The statutory right
to information gives a legal right to have access to government-held information and
helps to strengthen democracy by ensuring transparency and accountability in the
actions of public bodies. It enhances the quality of citizen participation in
governance from mere vote-casting, to involvement in the decision-making that
affects her or his life.
A statutory right to information has gone a long way to secure for every citizen, the
enforceable right to question, examine, audit, review and assess governmental acts
and decisions, so as to ensure that these are consistent with the principles of public
interest, probity and justice. Governmental information is a national resource and
does not belong to the government or any of its officials. It has been seen from the
experience of various countries that the more unrestricted the flow of such
information, the better is the quality of governance. Alternatively, the greater the
restrictions that are placed on access of information, the greater are the feelings of
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powerlessness and alienation. Without information, people cannot adequately

exercise their rights and responsibilities as citizens.
Article 39 of our Constitution makes it clear that the purpose of the State in India is
not doctrinaire but practical. The humanist path towards socialistic pattern of
society is ideal for India and Articles 39 (b) and (c) illustrate this ideal. These
provisions also show that the doctrine of growth is to be accompanied by distributive
justice. These clauses, together with other provisions of the Constitution, contain an
objective, i.e. the building of a welfare State and an egalitarian social order and to fix
certain social and economic goals for immediate attainment by bringing about a non-
violent social revolution. Through such a revolution, the Constitution seeks to fulfill
the basic needs of the common man and to change the structure of the society,
without which political democracy would have no meaning. Then why cannot public
information be included within the meaning of material resources of the community?
If indeed the government feels that public information is a material resource, then
the State is duty-bound to distribute it so as to subserve the common good and the
RTI law is the best way to fulfill this requirement.
No type of information is created by any government or public officials for their

individual benefit. This information is created so that the duties of office could be
properly discharged by the public officials and for purposes related to the legitimate
discharge of the service of the public for whose benefit the institutions of government
comes into existence, and by whom ultimately the salaries of the officials and
institutions of government are funded. From this it follows that the government and
its officials are trustees of this information on behalf of the people. RTI has provided
members of the public legal access to documents, information and files of the
government; something that may not have been available to them otherwise without
the discretion of government.
Under the parliamentary system, the information is transferred from the government
to the Parliament and State Legislatures, and from these to the people. It is hoped
that the gap between the information rich and the information poor would be
reduced through the recent technological developments in the country. However, it
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is found that in practice, the situation of bureaucracy in India remains the same as
was prevalent during the rule of the British. This is because, even today, our
bureaucracy is steeped into a culture of secrecy, distance and mystification. In fact,
this preponderance of bureaucratic secrecy is usually legitimized by a colonial law,
the Official Secrets Act, 1923, which makes the disclosure of official information by
public servants, an offence.
It is expected that the quality of decision-making by public officers will improve once
they have greater access to information in all sorts of matters, once the unnecessary
secrecy around the decision-making process will be removed. The quality of
participatory political democracy will consequently improve after the citizens are
given a chance to participate in the political process in an informed manner. Thanks
to RTI, the citizen is today, in a position to assess the performance of the
Government and has the opportunity to have a voice in the decision-making process
of the Government, after having an access to pertinent information.
V. Role of Media
The media plays the role of the fourth estate in a successful democracy and shoulders
the responsibility of making the State accountable and transparent in all its actions.
The freedom of the media is often regarded as one of the essential features of the
success of a democracy. This is because democracy revolves around the basic idea of
citizens being at the centre of governance, i.e. the rule of the people. We need to
define the importance of the concept of freedom of the press from this fundamental
premise. It is pertinent to note that the main reason for ensuring a free press is to
ensure that citizens are well-informed. If this is one of the main reasons for the
primacy given to the freedom of the press, it clearly flows from this that the citizens
right to know is also paramount. As already seen above, in a democracy, the
government is run on behalf of the people and they are the owners of the
information. Thus, they have a right to be informed of the affairs of the government,
in a direct manner. RTI can thus be seen as placing information in the hands of the
ordinary citizen and is thus, a law which is to be exercised by the citizen against his /
her government.
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As things stand today, most people in the developing world, are not aware of their
right to freedom of information in a direct and personal manner unless they belong
to the highly educated class, and hence the medias role regarding empowering the
public about legal advantages of the RTI law as an anti-corruption weapon has
become all the more crucial. By using this legislation, the media can investigate and
expose issues of wider public interest. The media, as the guardian of freedom of
speech, can open up closed doors to transparency and accountability by
disseminating information obtained through RTI to provide people information that
they need in order to make their public servants more accountable. In a country like
India, where scams involving gargantuan sums of money have been coming into the
public domain over the course of the last five years and more, the question that is on
most peoples lips is as to whether the country has suddenly seen a tremendous
increase in the scale of corruption or is it merely the result of more cases coming to
light courtesy the RTI law or whether both these factors have combined together to
produce these astronomical figures that we see in modern-era scams. This
sometimes leads to a perception that the right is primarily, or even exclusively, a
right that benefits, or is for, the media. Exacerbating this misperception is the often
high-profile role that the media and media associations play in advocacy for RTI
legislation.
Commentators and analysts often discuss the manner in which the media has been
leveraging the RTI laws, especially in high profile cases, in order to undertake
investigative reporting that reveals high-level corruption or to create awareness on
key public policy issues. Zambia and a number of other African states have struggled
with the adoption of an RTI Law. This has been on the anvil for quite some time now
but these efforts have not yet borne fruit. Other African nations like Uganda and
Angola have enacted laws which have yet to be implemented. The perception that
the right to information is somehow a 'media right' may be contributing to the
reluctance of African Governments to adopt RTI laws. This fear notwithstanding,
there are an ample number of untold stories of corruption and misuse of the
taxpayers money buried deep within Government documents and reports. With the
help of the RTI law, the media and citizenry can have access to them as well.
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Some of the sterling achievements of the Indian media with regards to exposing
corruption in high places, courtesy the RTI law, include the 2G spectrum allocation
scandalxx, the coal blocks allocation scamxxi, the Adarsh society scamxxii, the Assam
Public Distribution Scheme Scamxxiii and the Appropriation of Relief Funds Scamxxiv.
VI. RTI and Service Delivery
An important manner in which individuals use RTI laws is to gain access to their own
personal information like that pertaining to the status of ones application for an
Aadhar Card, Voter ID card or Driving License, medical information or information
about eligibility for certain benefits. In established RTI regimes, such requests often
form an important proportion of all requests. In some countries, requests for
personal information are so commonplace that they are not even treated as RTI
requests.xxv
In Canada, for instance, prior to the adoption of the RTI law in 1982, many medical
officials would normally provide information pertaining to the patient's own
medication, but others would refuse it, or erect barriers to disclosure (e.g. by asking
for fees or by claiming that they needed to check whether they could provide it). The
RTI law helped to clarify the rule position and established precise grounds upon
which access to ones own medical information could be refused.
In India, individuals have gone beyond using the RTI law simply to obtain
information. Implementation of the RTI law is more robust than implementation of
other rules (e.g. regarding the processing of applications or provision of benefits). As
a result, individuals often use RTI applications to resolve other sorts of service
delivery problems like delay in provision of services, obstruction or failure to apply
the rules, etc. A 2008 report by a Non Governmental Organization called
Participatory Research in Asia (PRIA) highlights a case wherein the local police
refused to accept a FIR (First Information Report) from an individual who had been
assaulted in a land dispute, even after the individual had produced a medical
certificate certifying his injuries. When he returned a few days later, with an RTI
request asking for information as to why his FIR had not been lodged, the police
immediately registered the assault claim.xxvi In the case at hand, the purpose of the
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RTI request was to obtain information, but to pressurize the police into providing the
applicant with the services that were guaranteed to him by virtue of the Criminal
Procedure Codexxvii. In this way, the RTI Act is being used to promote more efficient
service delivery in all sorts of areas across the public sector.
Prestigious institutions like the Union Public Service Commission (UPSC) and the
Indian Institutes of Management (IIMs) have been forced to make public, their
scaling and admission criteria respectively, as a result of RTI applications. This has
not only made the entire process of selection more transparent, but in the case of
UPSC, been instrumental in the scrapping of the erstwhile system of shortlisting
candidates for the Mains examination, as the UPSC was not able to satisfy the
aspirants and the general public about the fairness of its scaling criteria xxviii.
In South Africa, the Open Democracy Advice Centre (ODAC) has chronicled how
local groups have used the RTI law to obtain water delivery. Villagers in
Emkhandlwinixxix had no water, whereas neighbouring villages were receiving water
deliveries courtesy municipal tankers. With the help of ODAC, the villagers filed an
RTI request for minutes of the Local Council meetings at which water programmes
had been discussed and agreed upon as also the Councils Integrated Development
Plan (IDP) and for the budget of the IDP. This information showed that there were
plans to deliver water throughout the region, but somehow Emkhandlwini had been
left out.xxx Armed with this information, the villagers were able to reassert their
claims for water.
VII. Combating Corruption and Malfeasance
Allowing people to seek and receive public documents, serves as a critical tool for
fighting corruption. This enables citizens to participate more effectively in public life
and makes governments more efficient, which, in turn, helps people to exercise their
fundamental human rights in a more effective manner. The question that is
sometimes asked in government circles is "Why must we then provide this right
which effectively curbs our own powers?" Many governments are confronted with
the urgent need to improve their economy, reform their Constitution, strengthen
their institutions, modernize their public administration, fight corruption and
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address civil unrest. For these governments to succeed in their endeavour, access to
information can be a vital ally and can be used to actively pursue some of all of these
objectives.
Corruption is a serious problem in developing countries like India because it takes

away from the entire developmental effort and exerts significant pressure on the
delivery of social services not only by draining off scarce resources but also by
undermining efficiency as it involves debilitating transaction costs. There are
numerous examples of the media using RTI laws to expose corruption in high
places.xxxi
One of the most high profile such cases in recent years was the expenses scam
pertaining to Members of Parliament that took place in the United Kingdom in the
year 2009. MPs fought tooth and nail to prevent the release of the details of their
expenses. Ironically, this information was leaked to the Daily Telegraph newspaper,
which began to publish it in May 2009, nearly two months before it was due to be
formally released by the House of Commons in July 2009. This information
provided a clue as to why MPs had fought so hard to keep it confidential. There were
numerous cases of scandalous expenditures way above the norms / entitlements,
gross profligacy and many more examples of inappropriate expense claims.xxxii
Dozens of MPs announced that they would not seek re-election due to the exposure
of their expense claims. The then Speaker of the House, Michael Martin, was forced
to step down after having steadfastly attempted to block the disclosure of this
information this was the only time that the Speaker has had to resign from his
office in the 300 years that this institution has existed.xxxiii
Back home, the Act has produced a better impact on the quality of the life of the poor
and the marginalized. During the last ten years, the Act has brought about positive
changes in the levels of corruption and accountability. There are quite a number of
cases, where the Commission has ordered for providing the details of the decision-
making processes including file notings, cabinet papers, records of recruitment,
selection and promotion of staff, documents pertaining to tender processes and
procurement procedure, lists of beneficiaries of Government subsidized schemes,
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such as food grains supplied through ration shops, water and electricity, domestic
gas, educational and health facilities, shelter for poor, muster rolls under
employment guarantee schemes, etc. The disclosure of such vital information has
resulted in an effective check on corrupt practices in delivery of services and ensuring
that entitlements actually reach the intended beneficiaries. Concrete steps needs to
be taken to make the filing of RTI applications more convenient.
There are many examples of citizens and civil society groups using RTI to expose
corruption, often at the local level. A grassroots level organization called Mazdoor
Kisaan Shakti Sangathan (MKSS) grew out of a local struggle for minimum wages in
Rajasthan where historically, local people had had difficulty in obtaining the
minimum wages that were due to them. Promises for payment of minimum wages
were often made at election time, only to remain unfulfilled on each occasion. Over a
period of time, campaigners realized that real change depended on ensuring that
relevant documentation, in particular the muster rolls, was made public. xxxiv It was
then that the MKSS developed a new empowerment strategy based on the idea of a
jan sunwai or public hearing. This involved bringing people together for a local
public meeting, chaired by a prestigious outsider, usually a lawyer, activist, academic
or journalist. There was often peals of laughter when the records were read out in
public because they contained false information, such as bills for transport of
materials over a distance of five kilometres when the actual distance was only one
kilometre, or instances of people being listed on the muster rolls when they were
actually living in other cities or were long dead! This demonstrated, in front of the
entire village, that corrupt local officials and small time politicians were siphoning
away money and that minimum wages were being paid only on paper. People who
would have been intimidated on their own now had a platform where they could
speak out. Over time, this process generated widespread support for the right to
information at both the grassroots level and among the middle classes who had not
previously supported the poor but now spoke out against corruption, which they
realized also hurt them.xxxv
Other examples of the power of openness in the hands of citizens being used to
combat corruption can be seen in countries like Mexico where the RTI law is widely
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credited with the near complete disappearance of the aviadores, who were
Government employees who would get paid but would never actually report for work.
This was driven by numerous requests for information by people who suspected
wrongdoing, but could not, in the absence of the RTI law, prove it.xxxvi Similar is the
case of the ghost employees of the Municipal Corporation of Delhi who were being
paid salaries despite the fact that they existed only in official records. xxxvii
In early 1998, shortly after the Thai RTI law was first adopted, a parent, Sumalee
Limpa-Owart, used it to fight against corruption in the education system. Her
daughter had been refused entry to the prestigious Kasetsart Demonstration School
(KDS), a highly-regarded, State-funded institution. Admission was supposed to be
based upon a competitive entrance examination. Surprisingly, however, the student
body comprised largely of children from elite families, leading to a widely held
perception that tea money or some other form of bribery was involved. Sumalee
sent a letter to the school requesting that the marks and answer sheets of her
daughter and those of the 120 students who were admitted, be shown to her. When
she received no reply, she filed a petition under the Official Information Act and
eventually went in appeal to the Official Information Commission, which ordered the
disclosure of the requisite information. Parents of children who had been admitted
appealed to the courts, which rejected their plea and Sumalee was eventually granted
access to the answer sheets and marks in March 1999. By that time, the school had
already admitted to corrupt practices in the processing of the admission of as many
as 38 students.xxxviii
In many countries, RTI laws have also been used by citizens to protect their rights. In
2006, for example, an RTI request to the BBC revealed that the flagship public
service broadcaster was paying female news correspondents working for its flagship
news broadcasts some 6,500 less than their male counterparts.xxxix Although the
BBC claimed that this was not discriminatory but merely reflected age differences
among the respective staff,xl it did prompt it to undertake a comprehensive pay
review in the case of news readers.
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VIII. Citizens Participation in Self-Governance
RTI is a path breaking legislation which brings to light the secrecy of administration.
It is an effective means to promote democratic ideology in the country. The
legislation serves as a powerful instrument to fight against governmental corruption
as demonstrated above. The Second Administrative Reforms Commission
recognized the significance of this legislation and consequently, prepared a detailed
blueprint for revamping the public administrative system. In its very first report
titled Right to Information: Master Key to Good Governance, the Commission has
acknowledged that access to information can empower the poor and weaker sections
of society to demand information from the Government about public policies and
actions, thereby leading to welfare of all. Good governance and right to information
are complimentary to each other. Good governance is characterized by political
accountability, availability of freedom, bureaucratic accountability, availability of
information, effectiveness and efficiency in administration, law abiding citizens and
cooperation between Government and society. As such, the right to information is a
natural corollary of good governance. The enactment of RTI Act introduces an open
and transparent government and gives to every citizen, the right to seek and receive
information which in turn, helps to make the administration more responsible and
transparent, which ultimately leads to good governance. Thus, the World Bank has
rightly remarked that Right to information is an integral part of good governance.
Participation of both men and women is the cornerstone of good governance.

Representative democracy does not mean the rule of a chosen few - rather it must
take into account, the interests of all sections of society, especially the most
vulnerable sections. The law gives the people a chance to participate in democracy
not just one in five years, but on an everyday basis. It gives an opportunity to the
common man to participate in governance and reduces the imbalance in the power
relationship, provides a tool to oppose injustice and allows collective spirit to make
democracy work for everyone. The Act has also strengthened grassroots democracy
in India and ensured peoples participation in local governance and development
activities.
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RTI makes it possible for the public to have easy access to information from
government departments. By providing easily accessible information, it reduces the
traditional long gaps between citizens and administration and thus helps in the
nation building process. The 'right to know' and easy access to government-held
information helps the people to understand the limitations that the government faces
at different levels. The availability of information also helps to foster the
development process and is a symbol of a true and mature democracy.
Transparency is the milestone of good governance. Transparency means that

decisions are taken and their enforcement is done in a manner that follows rules and
regulations. It also means that information is freely available and directly accessible
to those who will be affected by such decisions and their enforcement. Transparency
and accountability are possible only when the public have proper access to
information. The enactment of RTI Act has enabled people to seek information from
any government department within a definite timeframe. The law has helped to
usher in a greater degree of accountability and transparency in governmental
functioning by making the process of decision-making, a more open one. Some
departments of the government have been exempted from the purview of this Act;
but even in respect of these organizations, information can be sought if it is
concerned with the violation of human rights or concerns corruption within that
organization.
Information is power and RTI brings about accountability and transparency in the
administration. The Act provides people with the mechanism to access information,
which they can use to hold the government accountable or to seek explanation as to
why decisions have been taken in a particular manner, by whom they have been
taken and with what consequences or outcomes.
Before the enactment of RTI, participation in political and economic processes and
the ability to make informed choices were something that remained restricted to a
certain section of the population. As a consequence, commoners continued to
remain ignorant of various schemes and were unable to resist when their rights
became causality. At the same time, people remained ignorant of the ways and
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means through which they could enforce their rights vis--vis the concerned
departments. With the enactment of the RTI Act, people can effectively participate
in the decision-making process and this has enabled citizens to know about various
government decisions.
Equity is another prominent feature of good governance. It implies that everybody is

a part of the governance system and no section of the populace should feel excluded
from the mainstream of society. RTI also does not make any discrimination between
the rich and the poor, and it covers all the citizens of India. It has thus proved useful
in the fight against inequality and injustice.
RTI has brought about more effective and efficient record management techniques
that are needed to facilitate the provision of information in response to public
queries. Under Section 4 (1) of the Act, it is clearly mentioned that it is the obligatory
on the part of every public authority to maintain all its records duly catalogued and
indexed. Under Section 4 (1) (b), every public authority is requested to publish
within 120 days from the enactment of the Act as many as seventeen manuals,
providing for various forms of information. Thus, information is now made available
to citizens in a proactive manner without them having to even ask for that
information.
RTI has therefore enabled countless ordinary citizens to effectively and proactively
participate in the decision-making processes. Without information, citizens may not
even know that a decision-making process is underway or they may not know as to
how they might be able to provide inputs therein. Even if they do have this
knowledge, effective participation often depends upon having access to the relevant
background and underlying information relating to the process. Individuals and civil
society groups in countries across the world have used RTI laws to bolster their
ability to participate. For example, Slovak law mandates companies that engage in
the harvesting of trees in forests to prepare a forest management plan, which must be
approved by the Ministry of Agriculture. Historically, these plans were classified
documents. A local Non Governmental Organization (NGO), by the name of the Vlk
(Wolf) Forest Protection Movement eventually managed to gain access to these
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plans, under the nascent RTI law, after the Supreme Court ruled that they could no
longer remain classified, by virtue of the new law. Using information in the plans,
Vlk managed to campaign successfully for larger areas of forest to be protected as
nature reserves.xli
In New Zealand, campaigners have used the RTI law to campaign for greater
openness around Genetically Modified foods. As part of a wider campaign against
GM foods, the Green Party of Aotearoa, New Zealand used the RTI law in 2006 to
access a Cabinet document which revealed that the New Zealand government
planned to veto country-of-origin labeling rules without holding a public
consultation or parliamentary debate. The Green Party introduced a bill on food
labeling which would have significantly enhanced labeling requirements. Although
the bill was easily defeated, the campaign generated massive publicity and so the
government was forced to introduce country-of-origin labeling rules for imported
foods.xlii
Another shining example of citizens participation comes in local governance from

Uganda where citizens have used RTI to end corruption that was plaguing their
education system. In the 1990s, lots of funds used to be transferred to schools via
local authorities. However, a survey in the mid-1990s revealed that almost 80% of
these funds never reached the schools concerned, due to inherent leakages within the
system.xliii In response, the Central Government, at the specific request of the local
communities, began to publish figures regarding monthly transfers made to schools /
local governments in local newspapers of the region. This meant that both officials at
the schools and parents of students could easily access information about the
(intended) size of each of these monthly transfers. A few years after this initiative
was started, the incidence of funds not reaching schools had dropped from 80% to
20%.
In neighboring Pakistan, citizens have used the Freedom of Information (FOI) law to
ensure supply of safe drinking water in Islamabad. The Capital Development
Authority (CDA) had installed water filtration plants at various locations in
Islamabad to provide citizens with safe drinking water. However, following
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numerous complaints from residents of the area regarding the quality of the potable
water supplied to them, an NGO submitted a FOI (another term for RTI) request to
the authorities seeking details about water testing measures undertaken by the CDA,
frequency of changing water filters at filtration plants and the display of information
for the benefit of the general public. When the CDA did not respond to the FOI
request, the NGO complained to the Federal Ombudsman (equivalent to the Central
Information Commission in India) following which, not only was the desired
information provided to the NGO in question, but it also led to the CDA taking more
care to ensure safe drinking water, and even inviting the NGOs representatives to
accompany CDA officials when they changed filters in their filtration plants.xliv
In one remote village in Orissa, the bridge spanning the stream next to the village
had been broken for more than six years. Local people had been petitioning the
government every year to have the bridge repaired, but local officials told them that
the government had not yet allocated the required funds, while the district and State
administration promised to look into the matter each time the villagers approached
them. The lack of a bridge meant that the villagers had to travel an extra ten
kilometres each day in order to go to the neighboring town or even to catch a bus
from the main road. The villagers submitted an RTI application asking the
government for reasons why the bridge had not been repaired so far. The results
were astounding within a period of fifteen (15) days, the village got a reply from the
office of the Deputy Commissioner informing them that as per official records, the
funds for the repair of their bridge had been sanctioned five years ago and that the
bridge had already been repaired. In fact, last year additional funds had been
sanctioned to repaint the repaired bridge! However, as their RTI application
suggested that the bridge had not actually been repaired, an inspection team was
being sent to enquire into the matter. The inspection team found that the local
officials and unscrupulous elements within the district administration had pocketed
the sanctioned money and had certified on paper that the bridge had indeed been
repaired. Following the report by the inspection team, action was initiated against
the guilty officials and the bridge was finally repaired in reality. xlv
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Another excellent example of how the RTI legislations could be used to good effect
came from an 80-year old widow in Gujarat, who had applied for a passport, so as to
enable her to visit her children who lived abroad. Months went by but she did not
receive her passport. Whenever she approached the passport office to try and
ascertain the reason behind the holdup, she was accosted by touts who offered to get
her the passport only if she was willing to pay a hefty bribe and grease the palms of
the concerned officials. Muktaben then prepared an RTI request asking why she had
not yet received her passport, who was the officer responsible for the delay and what
action the Government intended to take against the erring officer. When she arrived
at the passport office and gave her RTI application to the concerned official, the
official read her application, asked her to wait for a minute, went inside and came
back with her passport, all within a couple of minutes! He handed over the passport
to her and pleaded that now that she had got the elusive travel document, she should
not file the RTI application.xlvi Such is the power that this legislation confers in the
hands of ordinary citizens all over the world and enables them to participate in
decisions that affect their day-to-day lives.
IX. Conclusion
Information is indispensable for the functioning of a true democracy. People have to

be kept informed about current affairs and broad issues on the political, social and
economic fronts. Free exchange of ideas and free debate are essential for a
democracy like India. In this age of information technology, RTI is a critical factor in
ensuring the countrys socio-cultural, economic and political development. In a fast
developing country like ours, availability of information needs to be assured in the
fastest and simplest manner possible. Therefore, the first step towards making RTI
realistic would be to have a comprehensive legislative and institutional framework at
both the Union and the State level. Laws by themselves are not adequate. What is
needed is that such progressive laws must be backed by peoples movements. A law
for right to information or Freedom of Information can be made effective only
through active involvement of the citizens. Simply making the legislation will not do
justice to the information seekers unless it is implemented with strong conviction.
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There is always a great deal of resistance to change and the Indian bureaucracy is no
exception to this phenomenon. It has, for generations, been brought up on a culture
of secrecy. It is therefore unlikely that present-day bureaucrats will change their
attitudes towards RTI all of a sudden and embrace the RTI law immediately. That
being said, efforts to thwart the working of RTI must be dealt with sternly so as to
send across the right message to Government functionaries at all levels.
There is a view that there are many preconditions related to the level of economic,
social, cultural, educational and political attainment which are essential in order to
realize the true and complete potential of laws like RTI. This is especially true in the
case of a developing country like ours. Unless a country has solved problems like
hunger, illiteracy, poor standards of healthcare and lack of social security and
political freedom, it may not be possible for its people to realize the right to
information. However, the step towards enacting a progressive legislation like RTI is
no doubt a courageous and progressive one. This legislation inter alia ensures that
legal pressure is maintained upon government officials to provide information in
respect of the functioning of the government, even if this information is, for the time
being, mainly being asked for by comparatively better-off sections of society.
In countries where robust RTI mechanisms are not yet in place, it is not always clear
to citizens as to why they have attracted so much attention in recent years. In poorer
countries, like Zambia, in particular, the adoption of an RTI law may seem somewhat
of an unnecessary luxury, given the many very pressing development needs. Often,
the perception of these laws is that they are mainly for the benefit of the media,
which already seems to be a privileged player in society. In fact, the longstanding
experience of many countries in regions across the world clearly demonstrates the
importance of RTI laws not only vis-a-vis the media, but also directly to citizens. The
uses to which citizens put these laws, ranges from the relatively mundane, such as
accessing ones personal information, to far more important ones like improving
service delivery systems (either at an individual level or community level), exposing
corruption in high places, fostering participation in decision-making and enhancing
social advocacy.
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References:
* Assistant Professor, Campus Law Centre, Faculty of Law, University of Delhi
i Act No. 22 of 2005.
ii William R. Staples, Encyclopedia of privacy, 16 (2006).
iii Jeremy Malcolm, Access to Knowledge: A Guide for Everyone (2nd ed., 2011).
ivhttp://www.accessinfo.org/documents/Access_Docs/Thinking/Get_Connected/worlds_first_foia.p
df Last visited on 12 December 2016 at 1000 hours.
v See, for example, Claude Reyes and Others v. Chile, 19 September 2006, Series C No. 151, para. 77
(Inter-American Court of Human Rights) and Trsasg A Szabadsgjogokrt v. Hungary, 14 April
2009, Application No. 37374/05 (European Court of Human Rights).
viSee, for example, the press release of 21 February 2011 by the Forum of Independent Human Rights
NGOs in Egypt. Available at: http://www.cihrs.org/English/NewsSystem/Articles/2762.aspx. Last
visited on 28 November 2016 at 1145 hours.
vii Mazhar Siraj, Exclusion of Private Sector from Freedom of Information Laws: Implications from a
Human Rights Perspective, Journal of Alternative Perspectives on Social Sciences 2 (1): 211226.
viii Art 19 (1)(a) , Constitution of India, 1949.
ix State of UP v. Raj Narain, AIR 1975 SC 865.
xCentre for Good Governance (CGG), Hyderabad, The Right to Information Act, 2005 - A Guide for
Media.
xi Act No. 5 of 2003.
xii Supra Note 2, S. 4 (1) (a).
A former member of the Indian Civil Services, he served as Director General of the Indian Institute
xiii
of Foreign Trade and edited the magazine on consumer rights titled Common Cause which he
started at a time when Indian people were not even aware of the concept of consumer rights. He
fought a number of Public Interest Litigations, many of which resulted in landmark verdicts by the
Supreme Court of India. In recognition of his work, he was awarded the Padma Vibhushan and
Padma Bhushan, which are the second and third highest civilian awards in India.
xivhttp://humanrightsinitiative.org/index.php?option=com_content&view=article&id=65&Itemid=84
Last visited on 22 November 2016 at 2000 hours.
xv Hans Sundstrm, THE OPEN SWEDEN CAMPAIGN, 87.
xvi S. 14 (1) (f), South African Promotion of Access to Information Act, 2000.
xvii Supra Note 2, S. 4 (1) (b).
For example, the UK Ordinance Survey Maps, which used to be sold, are now available
xviii
electronically for free. See http://www.ordnancesurvey.co.uk/oswebsite/getamap/. Last visited on 01

December 2016 at 1930 hours.
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One prominent example is http://data.gov.uk/, run by the UK Government, which boasts that it
xix
hosts over 5,600 datasets, along with numerous applications running on them.
xxhttp://economictimes.indiatimes.com/news/politics-and-nation/2g-statement-of-additional-
witnesses-to-be-recorded-on-janaury-27/articleshow/45577323.cms Last visited on 30 November

2016 at 1500 hours.
xxihttp://www.thehindu.com/news/national/supreme-court-quashes-allocation-of-all-but-four-of-
218-coal-blocks/article6441855.ece Last visited on 30 November 2016 at 1510 hours.
xxiihttp://blogs.wsj.com/indiarealtime/2011/01/17/dont-send-in-the-bulldozers-yet-adarsh-owners-
say/ Last visited on 26 November 2016 at 1300 hours.
xxiiihttp://archive.indianexpress.com/news/assam-pds-anomalies-may-be-a-multicrore-sca/290649/
Last visited on 11 November 2016 at 1100 hours.
xxiv http://ibnlive.in.com/news/ias-officers-loot-funds-for-kargil-war-heroes/53499-3.html Last

visited on 17 November 2016 at 1315 hours.
xxvToby Mendel, Executive Director, Centre for Law and Democracy, Background Paper for a
Conference on Freedom of Information in Zambia, March 2011.
Participatory Research in Asia (PRIA), Tracking Right to Information in Eight States: 2007, 19-20
xxvi
(2008).
xxvii Act No. 2 of 1974.
http://www.upsc.gov.in/exams/misc/csp2011-syll.pdf Last visited on 03 December 2016 at 1100

xxviii
hours.
xxix A remote village located in Ntambanana Rural in KwaZulu-Natal province of South Africa.
xxx Digging out the truth, dogged ODAC holds on: ODAC 5 Year Review, 9.
xxxi Supra Note 26.
xxxii A full list of the claims investigated by the Daily Telegraph is available at:
http://www.telegraph.co.uk/news/newstopics/mps-expenses/5297606/MPs-expenses-Full-list-of-
MPs-investigated-by-the-Telegraph.html. Last visited on 09 December 2016 at 1600 hours.
http://news.bbc.co.uk/2/hi/uk_news/politics/8057203.stm. Last visited on 03 December 2016

xxxiii
at 1900 hours.
xxxivhttp://www.mkssindia.org/writings/mkssandrti/the-right-to-information-discourse-in-india-
%E2%80%93-neelabh-misra/ Last visited on 23 November 2016 at 2100 hours.
xxxv Ibid.
David Sobel, Bethany Noll, Benjamin Bogado, p. 41 ( TCC Group and Monroe Price, 2006), The
xxxvi
Federal Institute for Access to Information in Mexico and a Culture of Transparency (Annenberg
School for Communications, University of Pennsylvania).
xxxvii http://www.thehindu.com/news/cities/Delhi/fir-filed-in-mcd-ghost-employees-
case/article852814.ece Last visited on 01 November 2016 at 1430 hours.
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xxxviii Supra Note 27.
xxxix The Independent, Female reporters paid 6,500 less than men by BBC , 8 December 2006.
The female correspondents concerned had an average age of 41 years, compared to 46 years for the
xl
males.
xli Supra Note 26.
See Commonwealth Human Rights Initiative, Our Rights, Our Information: Empowering people to
xlii
demand rights through knowledge, pp. 57-58. Available at:

http://www.humanrightsinitiative.org/publications/rti/our_rights_our_information.pdf. Last
visited on 08 December 2016 at 1110 hours.
Putting the Power of Transparency in Context: Information's Role in Reducing Corruption in

xliii
Uganda's Education Sector - Working Paper 136. Available at

http://www.cgdev.org/publication/putting-power-transparency-context-informations-role-reducing-
corruption-ugandas Last visited on 23 December 2016 at 1745 hours.
Mukhtar Ahmad Ali, Freedom of Information in South Asia: Comparative Perspectives on Civil
xliv
Society Initiative, 6 (2013).
xlv http://www.cic.gov.in/bestpractices.htm Last visited on 21 December 2016 at 1100 hours.
http://www.rtiindia.org/forum/archive/index.php/f-10.html Last visited on 22 December 2016 at

xlvi
1245 hours.
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"Environment Protection Authority, National Green Tribunal

and Environmental Governance in India"
Ayaz Ahmad*
ABSTRACT
Environmentalism much like constitutionalism seeks to limit the autocratic

tendency of technology driven growth with reference to our environment.
Incidentally these two concepts have a lot in common. They are similar in
their object and purpose and a lot more similar in their specific demands for
creation of institutions that fulfill these objects. In fact, one can define
environmentalism as a magnified image of constitutionalism. Consequently,
the imperatives of environmentalism are also amplified in comparison to
constitutionalism. Imperatives of constitutionalism demand rule of law,
protection of basic human rights, and separation of powers fortified by
independent judiciary. However, the specter of neoliberalism at the global
stage works as an anti-catalyst which has painfully slowed down the arrival
of environmentalism to save our environment. Neoliberal onslaught
repeatedly shoots down attempts to evolve effective regulatory framework for
environment protection in India. The dramatic quest for pan Indian
environment protection authority needs to be understood from the perspective
of neoliberal disdain for all common goods be it environment, education or
public health. The idea of environment protection authority has been roving
around for last three decades first in the form of National Environment
Protection Authority (NEPA) then as National Environment Assessment and
Monitoring Authority (NEAMA) thereafter as National Environment
Management Authority (NEMA) finally yet to be conceived utopia of
environmentalism! In the absence of substantive bureaucratic structure for
the protection of environment, the functioning of National Green Tribunal
(NGT) is also seriously handicapped. In any case, the conceptualization of
NGT in comparison to the Land & Environment Court of New South Wells
(NSW), Australia & similar structures in other parts of the world leaves much
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to be desired. Again, the challenges to effective environment adjudicatory

mechanism must be understood in the specific context of neoliberal slogan of
minimum government for maximum governance.
Keywords: Environmentalism, Constitutionalism, National Environment

Management, Adjudicatory Mechanism.
"If the federal government had been around when the Creator was putting His
hand to this state, Indiana wouldn't be here. It'd still be waiting for an
environmental impact statement."
---------Ronald Reagan
I. Introduction
The speed at which environmental disputes are settled is surpassed only by the speed
of creation of similar disputes. The ramifications of this problem need to be
understood in the light of the role that the concept of environmentalism is going to
play in the 21st century. If the 20th century was about the dominance of
constitutionalism at national and international stage, 21st century is going to witness
the replacement of that dominance by similar albeit more comprehensive concept
known as environmentalism. Evolution of environmentalism as the dominant
discourse of modern political, economic and social thought is mainly due to the
efforts of international community in the form of International Environmental Law.
It is the international environmental law which gave shape and content to
environmentalism and brought it at the center of concern for global governancei. In
this context, the lessons learned from expansion the expansion of constitutionalism
could be of much value.
Today the imperatives of environmentalism, which are basically amplified demands

of constitutionalism, are demanding rule of law with additional focus on hawkish
corporate sector, basic rights which extend beyond human beings so as to include all
living beings,ii separation of power leading to the creation of an independent
environment regulation regime fortified by an independent executive and
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adjudicatory institutions. However, the specter of neoliberalismiii at the global stage

works as an anti-catalyst which has painfully slowed down the arrival of
environmentalism. The proposal to set up National Environment Management
Authority (NEMA) & State Environment Management Authority (SEMA) through
National Environment Law Management Act (NELMA) bears testimony to neoliberal
disdain for attainment of all common goods be it environment, education or public
health. In this process an attempt is sought to be made to dilute the existing National
Green Tribunal which already has a very limited scope in terms of the National Green
Tribunal Act, 2010. Instead, the need of the hour is to is create robust institutional
structures which should be able to prevent creation of environmental disputes at the
first place and if at all a dispute must arise then it is settled in most expeditious
manner.
However, half-baked attempts to reform environmental governance in India fail to

capture the essence of environmentalism. The hit and trial method in creating an
efficient and viable environmental governance regime is being done at a great cost to
present as well as future generations which India as a developing nation can ill
afford. This paper is an attempt to study and understand the specific demands of
environmentalism pertaining to environment regulation regime in the light of past
experiences, current developments and future requirements. The focus of this paper
is the need for effective environment protection authorities and the role of NGT in
the settlement of environmental disputes. Efforts have been made to critically
analyze the evolving environment governance regime in the overarching presence of
neoliberal discourse with the object to ensure, quick, efficient and expeditious
handling of environmental issues.
II. Conceptual Underpinnings of Environmentalism
As per the Britannica Concise Encyclopedia environmentalism means advocacy of

the preservation or improvement of the natural environment, especially the social
and political movement to control environmental pollution. Other specific goals of
environmentalism include control of human population growth, conservation of
natural resources, restriction of the negative effects of modern technology, and the
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adoption of environmentally benign forms of political and economic organization.

In simple terms Environmentalism can be defined as a movement iv to protect and
improve the environment.v The importance of this movementvi is primarily because
of the importance of its ultimate object. The object of environmentalism is to protect
humanity from the existential threat posed by environmental degradation. This
threat might throw all our political, economic and social institutions into complete
disarray. This understanding was articulated by the Preamble to the World Charter
for Nature, 1982 in following words the degradation of natural systems owing to
excessive consumption and misuse of natural resources, as well as failure to
establish an appropriate economic order among peoples and among States, leads to
the breakdown of the economic, social and political framework of civilization.
Thus, the ultimate object of environmentalism is to protect the basic framework of
human civilization.vii
Because of the sanctity of the object that environmentalism seeks to achieve, the
movementviii to protect and improve the environment has multiplied manifolds.
Consequently, environmentalism has triggered a host of movements which aim to
transform our social, economic, cultural, political, educational, scientific,
technological, commercial, and legal world.ix The idea of sustainable development,
therefore, accommodates all these concerns and much more.
Emergence of environmentalism as the preeminent ideology touching every aspect of

the world around us is culmination of the process started by Stockholm Conference
on Human Environment in 1972. The Stockholm Declaration proclaimed that to
defend and improve the human environment for present and future generations has
become an imperative goal for mankind-a goal to be pursued together with, and in
harmony with, the established and fundamental goals of peace and of worldwide
economic and social development. And to achieve this environmental goal will
demand the acceptance of responsibility by citizens and communities and by
enterprises and institutions at every level, all sharing equitably in common efforts.
Individuals in all walks of life as well as organizations in many fields, by their
values and the sum of their actions, will shape the world environment of the future.
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Environmentalism, therefore, from the very beginning had made it clear that it is an
idea with multifarious concerns which demand acceptance of responsibility by one
and all. This acceptance of responsibility reveals the true nature and character of
environmentalism. Environmentalism by its very nature imposes certain limitations
on the actions of multiple stakeholders that it involves. Beginning with the State,
environmentalism limits the ability of giant corporate and individuals to interact
arbitrarily with natural environment. Equipped with the tools of sustainable
development, environmentalism now seeks to regulate not just the interaction of
state, corporate and individuals with natural environment but their interaction with
each other as well.
III. Limitations of Constitutionalism
The idea of limitation on State power has been the central concern of
constitutionalism. The object here is to protect life and dignity of life from the
arbitrary actions of State by imposing certain systemic limitations on the exercise of
vast powers at the disposal of State. The threat to life and dignity of individuals or
group of individuals emanating from the arbitrary exercise of State power pales into
insignificance once we compare it with the threat posed by environmental
degradation by arbitrary exploitation of natural resourcesx. This arbitrary
exploitation of resources is the result of conduit actions comprising of State &
corporate sector under neoliberal world order.
Constitutionalism on the other hand (historically and traditionally) imposes

limitations on State alone. There too it misses the arbitrary potential of State in
environmental matters. In any case, power center in 21st century has decisively
shifted from State to corporate.xi Constitutionalism therefore, by regulating the
arbitrariness of State alonexii (arguably excluding its arbitrariness in environmental
matters) becomes a concept of limited importance to the challenges of 21 st century.
The inability of retreating constitutionalism to capture the major concerns of 21st
century has left a deep void in modern political theory. This void is sought to be filled
by fast expanding concept of environmentalism which seeks to influence the social,
cultural, economic and political discourse of modern political thought in this new
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century. However, the expansion of environmentalism must cross swords with the all
mighty power of neoliberalism which privileges individual concerns over
communitarian ones.
IV. Lessons from Constitutionalism
For environmentalism to challenge the hegemonic power of neoliberalism, it is

necessary to gain strength from the experience of constitutionalism which has been
relatively successful in guarding the fundamental right to life against autocratic
tendencies of State in the last century. The evolution of constitutionalism into a
deeply entrenched ideology of 20th century socio-political dialogue holds some very
important lessons for the fast-evolving concept of environmentalism as the new idea
of limitation in the 21st century. These lessons are particularly appealing for content
exposition of environmentalism and their institutional protection. This lesson
drawing exercise is possible only because of the similarity of objects of the two
concepts and the methodologies employed to achieve these objects. Both seek to
protect life and dignity of life although the subject of protection is much bigger in
scale and shape in case of environmentalism. Similarly, the methodology deployed to
achieve these objects is also common, that is restriction of arbitrariness through
imposition of limitations albeit in case of environmentalism limitations seek to cover
broader spectrum. Therefore, if one is to define environmentalism vis--vis
constitutionalism, environmentalism can be termed as the magnified image of
constitutionalism. Consequently, the content elaboration exercise with regard to
environmentalism can draw a lot from the contents of constitutionalism. For similar
reasons contents of constitutionalism can be amplified to arrive at the contents of
environmentalism. This exercise is necessary to repel the challenges to
environmentalism which are mounted on the ground of vagueness, lack of clarity and
absence of clear direction. Moreover, once we have the elements of
environmentalism clearly spelled out, one can focus his energies on fortifying the
same and attain the ultimate object of protecting life and the dignity of life through
creation of strong social, political and economic institutions.
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The essential elements of constitutionalism are, Rule of Law, Separation of Powers,

Fundamental Rights and to fortify them all an Independent Judiciary. Now if we
amplify these elements to create content for environmentalism we will have rule of
law with additional focus on hawkish corporate sector, fundamental rights which
extend beyond human beings so as to include all living beings, xiii separation of power
leading to the creation of an independent environment governance regime supported
by independent executive and adjudicatory institutions. This amplification exercise
throws some interesting ideas for consideration.
Firstly, the extension of the concept of rule of law to include corporate sector would
mean that the guarantee of Part-III of Indian constitution would not be limited
against the State alone. The real power house of 21st century namely the corporate
sector would be obliged to observe the fine values of rule of law. In practical terms, it
would mean that the corporate would be under legal duty to take into account the
concerns of all those who are adversely affected by their actions, particularly on
issues directly involving environmental concerns.xiv This premise can be developed
further to counter neoliberal thrust for deregulation of the corporate sector.
Secondly, environmentalism demands that the fundamental rights would no more be

limited to human beings alone. The rights of all living beings must find expression in
the highest law of the land as they are equal partners and stakeholders in an
environment supportive to life. To bury the rights of non-human living beings just
because they are unable to negotiate with us is as unethical as counterproductive to
our efforts to prevent environment pollution. There is sufficient scientific evidence to
conclude that human beings cannot survive in complete absence of other life forms.
Therefore, it is in the interest of humanity to grant institutional protection to animals
and other living species, biodiversity and ecology. With this argument, neoliberal
claim for unrestricted freedom to exploit natural resources can be undermined to a
great extent.
Finally, the concept of separation of power is a shield to guard against the dangers of
too much power concentration at one place. Rule of law and fundamental rights are
mechanisms to impose limitations on the arbitrary exercise of powers by the State
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and corporate so that the life and dignity of life is protected against the vagaries of
power. However, any mechanism to limit the exercise of power becomes meaningless
if all the levers to control such mechanism are in one hand because then such
mechanism itself becomes prone to unjustified, unlimited and arbitrary pulling,
tweaking and twisting. Separation of power is answer to such challenges. By dividing
power among different organs of State a system of checks and balances is created to
avoid the problems of too much power concentration at one place in any form. The
traditional understanding of the concept of separation of power is that State power is
divided among different organs of State that is Legislature, Executive and Judiciary
all operating independent of each other.
However, this traditional distribution of powers among various organs of the State
fails to deliver on the challenges of faced by environmentalism. Judiciary which is the
guardian of constitutionalism is overwhelmed by the environmental dispute flooding
its corridors. The apex court of India in M.C. Mehta vs. Union of Indiaxv in 1986
admitted that in as much as environment cases involve assessment of scientific
data, it was desirable to set up environment courts on a regional basis with a
professional Judge and two experts, keeping in view the expertise required for such
adjudication. How often do we see the judiciary expressing inability to perform its
traditional function of dispute settlement by adjudication process? But this cannot in
any manner be viewed as the weakness of Indian judiciary. This is an example of
judicial reflexivity which recognizes the need to create unique institutions for the
protection and preservation of the fine principles of environmentalism. This
judgment started the process of establishment of National Green tribunal in India
which is a reality today. But the success or failure of NGT as the guardian of the
environmentalism depends upon the willingness of Executive to cede some of its
powers to accommodate the concerns of environmentalism giving new meaning to
the doctrine of separation of powers.
The voluntary modification of the role that judiciary is going to play in the quest for
holistic environmental justice is a model worthy of emulation by the executive wing
of the State. The Executive must be divided into two; Political Executive and
Bureaucratic Executive.xvi The former will lay down the broad policies and
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parameters to be rigorously executed by the later. Political executive must not have
the ability to subvert the functioning of bureaucratic executive as the later will be
under the direct scrutiny of NGT and therefore the possibility of bureaucratic
executive degenerating into an all-powerful monster cannot be entertained which
could justify the subjugation of later by the former. NGT in turn is already under the
scrutiny of the apex court of the country as the appeals from NGT lie directly to the
Supreme Court. This exercise of creating an independent bureaucratic executive is
necessary because the success or failure of NGT almost entirely depends upon the
efficiency of bureaucratic executive. The proposal to set up NEPA/NEAMA/NEMA
could be seen as an attempt to create an independent bureaucratic executive.
Together these two have the potential to establish a strong, efficient and effective
environment governance regime in India.
After learning the relevant lessons from the experiences of the working of
constitutionalism and finding out the specific needs of environmentalism, this paper
proceed to examine various proposals to establish an environment protection
authority alongside the NGT to find out how far they satisfy the demands of
environmentalism.
V. Environment Protection Authority and Environmentalism
The quest for Bureaucratic Executive began with the passage of Environment
Protection Act.xvii Section 3(3) empowered the Central Government to constitute an
authority or authorities by such name or names as may be specified in the order for
the purpose of exercising and performing such of the powers and functions
(including the power to issue directions under section 5) of the Central Government
by an order, to be published in the Official Gazette. Ever since the idea of
environment protection authority has been roving around often due to prodding by
courtsxviii first in the form of National Environment Protection Authority (NEPA)
then as National Environment Assessment and Monitoring Authority (NEAMA)
thereafter as National Environment Management Authority (NEMA) finally as yet to
be conceived utopia of Indian environmentalism!
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The case for National Environment Protection Authority (NEPA) was not found to be
very strongxix therefore it got substituted by National Environment Assessment and
Monitoring Authority (NEAMA). The NEAMA was proposed to be established in two
phasesxx. In the first phase, it was to be created by an executive order under the
Environment Protection Act, 1986. In the second phase, it would have been given
statutory status with additional responsibilities. The proposed authority could
ultimately subsume labyrinthine institutions that are in existence today seeking to
enforce environmental regulations but in practice doing everything to subvert them.
It was expected that NEAMA would expedite the environmental clearance and give
much needed lease of life to slumping business mood of the corporatexxi caught in the
web of environmental concernsxxii which has serious consequencesxxiii for our efforts
to eradicate poverty and make the promise of social justice a reality. xxiv Eventually,
the overwhelming concern for business sentiment ensured that the idea of NEAMA
gets substituted by National Environment Management Authority (NEMA). The
relentless march of neoliberalism replaced the idea of environment protection
authority by environment management authority at the proposal stage itself!
Neoliberalism was writ large on the proposal to establish NEMA which instead of
strengthening environmental governance sought to dilute whatever little has been
achieved so far in terms of institutional mechanism to promote environmentalism.xxv
NEMA was proposed to be established by the Environmental Laws (Management)
Act (ELMA). The proposal sought to do away with public participation in
environmental decision making. Its whole focus was to ease environmental
regulations for the corporate to work with impunity and undermine the requirements
of environmentalism. NEMA failed to conform to the institutional demands of
environmentalism brought out in the preceding section. Rather, it conformed to the
ideals of neoliberalism.
Interestingly, Parliamentary Standing Committee on Science and Technology,

Environment and Forests rejectedxxvi the proposal to establish NEMA by
sidestepping environmental concerns. However, the Parliamentary Standing
Committee by rejecting the reportxxvii on NEMA completely also trashed some good
ideas which if implemented could have brought the dream of an environment
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protection authority a little closer. The idea to establish environment protection

authority with three tier structure comprising district, state and national level
authorities was certainly laudable. Suggestions to establish National Environment
Research Institute & Environment Reconstruction Fund (ERF), creation of Indian
Environment Service was timely. One of the biggest weakness of the proposed NEMA
was that it stumbled down upon the touch stone of institutional independence which
is absolutely essential for the success of any environment protection authority. If the
deliberations of government on this issue are any indicator of things to come, then
the ultimate lever of NEMA would have remained with the MoEF defeating the
requirement of Bureaucratic Executive functioning independent of Political
Executive.xxviii However, the net result of the defective proposal to set up NEMA
means that the establishment of environment protection authority continues to be an
illusion.
The model keeping in mind the analysis done in preceding sections would be to have
National Environment Protection Authority (NEPA) with the mandate to administer,
monitor and enforce all environmental laws, rules and regulations in operation
across the length and breadth of this huge country.xxix This will require that NEPA
must function as a three-tier body with central, state and district level authorities
much like our unified judiciary and subject only to the adjudicatory jurisdiction of
NGT.xxx NEPA must be mandated to impose limitations on the power of neoliberal
corporate world to trample upon environmental concerns.
Construction of such an institution is not only warranted by the experiences of

fortifying constitutionalism in 20th century but also essential to repel the challenges
to environmentalism by conflict of interests inherent in the present environmental
regulatory regime. At present, the Political Executive which is founded on the
donations of corporate sector finds it impossible to take on it. Any objection that
model NEPA would be too broad given its mandate to administer, monitor and
enforce all environmental laws, rules and regulations to be feasible, can be repelled
by citing the similar experience of US Environmental Protection Agency which has
worked efficiently even in the absence of a dedicated national environment court.
But, this is not going to be easy.
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Whatever defects NEPA, NEAMA or NEMA might have at the proposal stage, the fact
remains that till date India does not have xxxi a national environment protection
authority despite statutory provision like Section 3(3) of EPA, 1986. This victory of
neoliberalism over environmentalism speaks volumes about the enormity of the task
in hand. However, during this period a National Green Tribunal was established by
the National Green Tribunal Act, 2010 to reform environmental governance in the
country.
VI. NGT and Environmentalism
The role of NGTxxxii in the model environmental regulatory regime is evident from
the conclusions of last section. With the passage of NGT Act, 2010 a quasi-judicial
body has begun to work for the adjudication of environmental disputes. It goes to the
credit of NGT that it has acquired a name for itself in a short span of time bringing
environmental disputes to the headline of newspapers & television channels.
However, the substantive role that the NGT could play in order to ensure the success
of model environmental regulatory regime is rendered ineffective by the present
legislation to establish NGT.xxxiii
Apparently, the jurisdiction of NGT extends over all civil cases pertaining to
environment. Inexplicably, its jurisdiction is limited by the condition that such cases
should arise out of the implementation of the enactments specified in Schedule I to
the NGT Act which are just 7 in number excludingxxxiv large number of legislations
which will be enforced by NEPA. This structure limits the jurisdiction of NGT
reducing its efficacy resolve substantive issues which significantly touch upon the
question of environment protection. A comparatively successful model xxxv of
environmental justice administration presented by the Land and Environment Court
of New South Wales (LEC of NSW), Australia exercises jurisdiction over as many as
59 legislations.
Moreover, restricting NGT to merely civil jurisdiction under environmental

legislations leads to some extraordinary issues of conflict of jurisdiction. These issues
have been elaborated by Dr. Usha Tandon in following words lets take the example
of The Environment (Protection) Act 1986 and assume that there is a direct
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violation of Section 7 of the Environment Act which prohibits the discharge or

emission etc of any environmental pollutant in excess of the prescribed Standards,
and thereby community at large is affected. It is notable that the violation of this
provision attracts the penalty under Section 15 of the Environment Act which is
imprisonment or/and fine. Now in view of Section 14 of the NGT Act the question is:
what kind of dispute has arisen from this substantial question of law which can be
settled by the NGT. The obvious answer appears to be: no such civil dispute has
arisen out of the violation of Section 7 of the Environment Act. As a matter of fact, it
is well known that modern environmental statutes (i.e. the seven specified
legislations in schedule I) operate on criminal justice administration which
stipulate deterrent theory of punishment. They do not legislate legal rights relating
to environment, rather create environmental offences against those who violate the
legal right relating to environment. Therefore, the NGT Act with respect to original
civil jurisdiction is not in consonance with the legislative scheme of specified seven
legislations. . if the intention of the legislature is that the Tribunal should be
approached by way of original civil petition, then first of all the requirement that
the substantial question relating to environment must have arisen out of the
implementation of enactments specified in Schedule I should be done away with. As
a matter of fact Schedule I to the Act referring to only seven legislations is
absolutely unwarranted and should be deleted. Section 14 should be amended to
entertain cases involving enforcement of any legal or constitutional rights relating
to environment. The right may arise from the Constitution of India, from any
environmental statue directly or indirectly protecting the environment or it may
arise from any tort action.xxxvi
Apprehensions expressed by Dr. Usha Tandon appear to be quite legitimate in the

light of past experiences of Green Tribunals in our country. The Law Commission of
India, in its 186th Report has concluded that the Appellate Tribunal did not have
much work in view of the narrow scope of its jurisdiction as per notification issued. It
dealt with very few cases. After the term of the first Chairman was over, no
appointment had been made. Thus, efforts should be made to widen the jurisdiction
of NGT to make it more effective and relevant in the larger scheme of the 21st century
environmental regulatory regime. In fact, the LEC of NSW encompasses a wide range
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of jurisdiction maintaining a variety of proceedings over a large number of

legislations. This significantly enhances its importance and relevance for all kinds of
environmental disputes resolution. There is one big lesson to draw from the
experience of the LEC of NSW that in order to be effective the Original Jurisdiction
of NGT should be a mix of civil, criminal and administrative aspects of all legislations
having any impact on environment which could give rise to any kind of dispute.
There are many other aspects of NGT that need fine tuning so as to accommodate the
concerns of environmentalism.xxxvii
The present scheme of dividing NGT into different zones with jurisdiction over
several States has presented participial challenges in access to environmental justice.
Firstly, environmental disputes often require onsite inspection at least by the expert
member of the bench. If bench of one State has jurisdiction over other states also
there will be practical problems of distance. Witnesses and victims of environment
destruction have to travel long distances to depose before the bench of the NGT. The
Vermont Environmental Court in the United States covers a small geographic area
and splits hearings geographically between two judges. The court also does on-site
hearings locally in impacted communities. Accommodation for persons with physical
disabilities, including mobility, hearing, and vision issues, and for persons who need
language translation services are included in the most accessible Environment
Courts/Tribunals.xxxviii
Secondly the monitoring work by the NGT of ongoing cases will suffer. This fact is
buttressed by experiences of environments courts in Australia. The Environment,
Resources and Development Court of South Australia often sits in a country town
where there are appropriate facilities (not necessarily a courtroom), near to where
the land is situated. This enables the Court to readily take a view of the land and
environs (as it usually does at the request of parties in planning appeals); it is easier
for local witnesses to attend, and may also reduce the cost for parties, while enabling
locals to experience the hearing of a matter.xxxix
Finally, environmental disputes involve multiple stake holders. Inhabitants of one

State will not be very happy by the judgment of another State tribunal particularly
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when the case involves the question of harnessing the natural resources of the State.
Moreover, to assume that small States will have less number of environmental
disputes and therefore can be managed by one bench of NGT acting for more than
one States is fallacious. Broadly speaking the division of our States is based on
geographicalxl grounds giving each State a unique environment. Smaller states
therefore give rise to equal number of environmental disputes in comparison to
bigger ones if not more. In any case maintaining the integrity of the environment of
smaller territory is more cumbersome as it leaves little room for maneuvering the
delicate environmental ecology. Accordingly, the Law Commission of India in its
186th report has proposed to establish an Environment Court in each state
depending upon its needsxli which has not been incorporated in the NGT Act.
In fact, if we do a comparative study of NGT with the Land & Environment Court of
New South Wells (NSW), Australia we find that there is fundamental difference at
the composition level itself which does not augur well for the success of NGT in
India. The Land & Environment Court (LEC) of NSW consists of 6 permanent judges
including the chief judge. There are 9 permanent commissioners (expert members)
which takes the strength of LEC to 15. Apart from this acting Commissioners may
also be appointed from time to time.xlii
New South Wells is the most populous state of Australia.xliii It will be instructive to
compare the LEC of NSW to the most populous State of India i.e. Uttar Pradesh. xliv
As per the current strength of NGT UP bench of NGT can have maximum of 6
members (3 judicial and 3 expert members) 31. The judge is to population ratio of
NSW stands at approx. 4,82,588 while this ratio for UP is approx 3,23,29,610. Going
by this comparison the proposed strength of NGT falls short by at least 66 members
for the State of UP alone. If we do similar calculations for all other Indian States
taking the NSW strength as the standard, the proposed strength of the NGT will look
even more ridiculous. The study makes it very clear that the unique circumstances of
India do not allow a cap on the maximum strength of NGT. The experience of NGT
on this front is succinctly brought out in following words of an activist, The biggest
challenge that people face is the access to justice. Access to justice is denied by two
means in NGT: firstly, by the provision of limitation period and secondly, by virtue of
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NGT being located in only five big cities spread across India. Once the tribunal
started operating, lower courts were barred from taking up environmental cases. Not
that they were doing a great job, but the debarring of lower courts has meant that
poor and disadvantaged communities living in remote parts of the country now have
to go to NGT Benches in their respective zones to get justice.xlv Moreover, the space
provided to judicial retireesxlvi in the Tribunal raises the fear of the NGT being
rendered as the dumping ground losing its sheen in the process. More space should
be created for the young and dynamic within the proposed system to make NGT a
truly vibrant institution. It should have been better had the qualifications included
specific specialization in environment on the lines of Australian model. However, it is
surprising that no academic specialized qualifications are prescribed for expert
members. The current dispensation leaves scope open for bureaucrats to administer
environmental justice which is not a happy arrangement.
Section 20 of the NGT Act empowers the NGT to apply certain fundamental
environmental principles while passing any order or decision or award. These
principles include the principle of sustainable development, the precautionary
principle and the polluter pays principle. It is for the first time in the environment
legislative history that these fundamental environmental principles have got
legislative recognition and an environment court has been asked to specifically
enforce them. So far, these principles were recognized by the judiciary alone.
However, certain important environmental principles have been left out of the
purview of the NGT Act which is unfortunate. These principles include the
Prevention Principle, Principle of New Burden of Proof, the Public trust doctrine,
and the Principle of Inter-Generational Equity. It is unfortunate that despite
recognition of many of these principles by the apex court the NGT Act does not
foresee their application in the new environmental regime that it seeks to establish.
Sections 26 to 28 lay down penalties for failure to comply with orders of NGT and
define liability of private and government officials. Section 30 provides the procedure
for taking cognizance of offences committed under the NGT Act. By virtue of section
31 all the employees of the NGT are deemed to be public servant for the purpose of
extending protection to them under criminal law. Section 32 protects bonafide
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actions of the employees of NGT and all those who act in compliance of the NGT Act.
These provisions are important because they sanctify the NGT and its functioning.
The heavy amount of fine prescribed by section 26 will go a long way to ensure the
compliance of the orders, awards or decisions of NGT. It is seen that more often than
not the biggest violators of environmental laws are big corporations with deep
pockets. If the amount of fine imposed upon them is not big they start following the
policy of pollute and pay which is obnoxious. In view of past experiences in this
regard section 26 is a welcome provision. It will also provide scope for the
application of deep pocket theory as enunciated by the SC in M C Mehta v Union of
India.xlvii
An analysis of section 27 makes clear that it creates dual responsibility for the
offences committed by companies under the NGT Act. Firstly, the company itself is
liable to pay penalties if it commits any offence. Secondly, every person who was
directly in charge of, and was responsible to the company for the conduct of the
business of the company will also be criminally liable. However, if he can show that
the offence was committed without his knowledge or that he had exercised all due
diligence to prevent the commission of such offence he will be exonerated from such
liability. A third kind of liability is also recognized by sub-section (2) of section 27
which we can term as vicarious liability. This liability is tied over the director,
manager, secretary or other officers of the company who enjoy superior authority
and control over the company. If it is found that the offence has been committed with
the consent or connivance of, or is attributable to any neglect on the part of, any
director, manager, secretary or other officer of the company, then they shall also be
deemed to be guilty of that offence and shall be liable to be proceeded against and
punished accordingly.
In addition, NGT has sought to expand its reach by claiming suo motu powers.
Justice Swatanter Kumar, NGT chairperson in inteview to Down to Earth asserted
that suo motu jurisdiction has to be an integral feature of NGT for better and
effective functioning. In fact, on certain occasions the NGT did invoke suo motu
powers which has not gone down well with vested interests. xlviii Further, the NGT has
been claiming the powers of judicial review under ancillary and inherent powers
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necessary in the interest of justice arguing that the tribunal is a specialized body and
has a procedure of its own under Section 19, which gives it power to adjudicate on
issues where judicial review is required.
The brief existence of NGT promises hope for the future of environmental
governance in India. NGT has taken on powerfully entrenched bureaucracy of the
Ministry of Environment, Forests and Climate Change (MoEF & CC). In the absence
of effective environment protection authorities, NGT has raised the bar for the MoEF
& CC with respect grant of environmental clearance in critical projects. Pollution
Control Boards both Central & State recognize the authority of NGT & at least make
an attempt to enforce labyrinthine environmental rules & regulations which are often
dismissed as mere paper tigers. A fundamental problem facing the judicial system in
India is speedy disposal of cases. The problem is even more pronounced where
environmental issues are concerned. A study done by the Delhi-based Centre for
Science and Environment (CSE) on the status of cases filed by the state pollution
control boards showed that as many as 96 per cent, 76 per cent and 55 per cent of
cases filed by Chhattisgarh, Odisha and Karnataka boards respectively, were pending
in the lower courts. In the three-and-a-half years since its establishment, NGT has
done much better. It had 6,017 cases instituted and 3,458 cases were disposed of a
rate of about 60 per cent, as of August, 2014.xlix
Notwithstanding the celebratory note on NGT & its headline grabbing work, the
imperatives of environmentalism are as illusory as ever. Sudhir Paliwal, of Vidarbha
Environment Action Group in Nagpur, thinks that NGT keeps major issues dragging,
while hyping up minor ones. It has not issued any strong orders in major air
pollution cases related to power plants or automobile pollution. For instance, a case
filed by Mahadula-based social activist Ratnadeep Rangari where Rangari alleged
that the Maharashtra State Power Generation Company (Mahagenco) was flouting
coal quality norms, has been dragging for a year without NGT giving any clear
order, says Paliwal. However, recently, in a case relating to Diwali crackers, NGT
has ordered the setting up of committees to visit cracker manufacturers.l
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VII. Theorizing the Failure of Environmentalism in India
In the preceding sections, the comparative study of environmentalism &

constitutionalism succinctly brings out the following structural imperatives of
environmentalism:
1) Pan Indian bureaucratic authority strategically placed at national, state & district
level to enforce entire gamut of environmental laws in a coherent & cogent manner.
2) Pan Indian judicial body strategically placed at national, state & district level to
adjudicate environmental disputes with comprehensive jurisdiction.
Judged in the background of missing pan Indian bureaucratic authority &

inadequate judicial body, structural imperatives of environmentalism have to be
characterized as failure in the Indian context. What is the theoretical explanation of
this failure? While neoliberalism with its inherent contempt for human commons
has been alluded to in preceding sections as formative force behind such failure, we
still need to identify the local collaborators. For this purpose, we need to understand
the nature of Indian State & why has it failed to evolve satisfactory institutional
mechanism to address the human commons. If we take the example of some
undisputed commons like education, health & environment and try to study them in
terms of existing institutional mechanism following pattern will emerge: multiplicity
of institutions with graded hierarchy of input & outcomes which successfully address
limited constituencies but fail together on addressing common concerns. Both in
education & health, this graded hierarchy is reflected in a few world class institutions
serving global market & then varying degree of descending institutions in the form of
very good, good, average, poor & very poor! The fact that formation of inadequate
NGT is preceded by non-formation of NEPA is a pointer to this pattern. The fact that
institutional response to environment protection which is undisputed common good
should remain inadequate as the institutional response to education & health after
more than six decades of the formation of Indian Republic points towards the
foundational defect of the Republic. This defect has been succinctly highlighted by
Gail Omvedt as Brahmanic Socialist Stateli which can be termed as Brahmanic
Capitalist Statelii in its neoliberal avatar.liii This transformation of Indian State has
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been termed as Neo-Brahmanismliv which shares the neoliberal contempt for

human commons. Both Neo-liberalism & Neo-Brahmanism are based on
individualism hence lack the capacity to appreciate communitarian common goods.
These two ideologies also share their fatalistic love for hierarchical social, economic,
& political order producing multiplicity of institutions with graded hierarchy of input
& outcomes. In this sense, Neo-liberalism converges with Neo-Brahmanism making
later the natural collaborator of the former. Thus, the failure of environmentalism in
India to produce satisfactory institutional mechanism for the protection &
improvement of environment lies in the alliance of neoliberal & neobrahmanical
forces operating in tandem to arrest the arrival of environment moment on Indian
landscape.
VII. Conclusion
Humanity today is at crossroads because of the monumental challenges posed by

environmental concerns. The search for adequate institutional response to the
existential threat posed by environmental problems must proceed with a sense of
urgency and sincerity that it deserves. Unfortunately, Indian efforts in this direction
have been lackluster so far.lv Failure to establish NEPA and establishment of
inadequate NGT capture the essence of challenges to environmentalism in India. In
the absence of NEPA with sufficient scope and structure to contain the upward
march of menacing pollution levels by vigorously enforcing and monitoring the vast
body of environmental laws, there is little that inadequate NGT can do. Alternatively,
if NGT does not have jurisdiction to adjudicate disputes thrown up by existing
environment protection bodies like Pollution Control Boards or proposed NEPA in
an expeditious, efficient and effective manner, the later will end up creating more
problems than it will resolve. The evolution of strong and effective Environmental
Governance Regime in India, therefore, must be guided by the sound principles of
environmentalism.
The ideological challenges to the evolution of satisfactory model of environmental

governance in the Indian context must be explored more deeply in order to mount a
successful defense of environmentalism. For this purpose, vigorous interrogation of
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existing institutional mechanism of environmental governance is necessary. As a

comparative study, US Environmental Protection Agencylvi offers a good starting
point for the Environment Protection Authority. It has worked in American
jurisdiction with relative efficiency even in the absence of so called National
Environmental Court or Tribunal. On the other hand, Land & Environment Court of
New South Wells (NSW), Australialvii offers a good starting point for the National
Green Tribunal which has delivered without a National Environment Protection
Authority.
A successful environmental governance structure to protect & improve the rich

environmental diversity of India can be raised by modeling NEPA on US
Environmental Protection Agency & NGT on the Land & Environment Court of New
South Wells (NSW), Australia. These objectives cannot be achieved without some
tangible movement away from ideologies based on individualism towards more
egalitarian commitment for human commons.
References:
*Mr. Ayaz Ahmad, Head, Glocal Law School, Glocal University Saharanpur-UP. He can be reached at
ayazahmad.adv@gmail.com Mobile: +91 9627059303
i Stories they tell, a dialogue among philosophers, scientists and environmentalists, 147-148 (L.
Surendra, K. Schindler and P. Ramaswamy, 1st ed., 1996).
iiLyle Munro, Animals, Nature and Human Interests, 61, in Controversies in Environmental
Sociology, (R. White, 1st ed., 2004).
George Monbiot, Neo-liberalism - the ideology at the root of all our problems, The Guardian,
iii
(15/04/ 2016), available @ https://www.theguardian.com/books/2016/apr/15/neoliberalism-

ideology-problem-george-monbiot, last seen on 13/12/2016
D. E. Morrison, The environmental movement: Conflict dynamics, 2 Journal of Voluntary Action

iv
Research 74, 85 (1973).
v B. N. Chakraborty, Law and Environment, 13, 14 (1st ed., 1992).
vi S. L. Albrecht, Environmental social movements and counter movements: An over-view and an

illustration, 1 Journal of Voluntary Action Research 2, 11 (1972).
vii A. J. Dastur, Man and his Environment, 33, 47 (1st ed., 1952).
J. Harry, R. Gale, and J. Hendee, Conservation: An upper-middle class social movement, 1(3)
viii
Journal of Leisure Research 246, 254 (1969).
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ix K. Milton, Environmentalism: The View from Anthropology, 31, (1st ed., 1993).
x F. M. A. Haijer Fischer, Living with Nature, Environmental Politics as Cultural Discourse, 60, 61
(1st ed., 1999).
H. Salgo, The obsolescence of growth: Capitalism and the environmental crisis, 5(3) Review of
xi
Radical Political Economics, 26, 45 (1973).
xii
xiii Supra 2.
xiv B. J. D. Hallet Harvey, Environment and Society: An Introductory Analysis, 62 (1st ed., 1977).
xv 1986 (2) SCC 176
xviColin J. Bennett, Understanding ripple effects: The cross-national adoption of policy instruments
for bureaucratic accountability, 10(3) Governance: An International Journal of Policy and
Administration, 213, 233 (1997).
xvii Act 29 of 1986
xviii Vellore Citizens Forum v Union of India AIR 1996 SC 2715.
xixMinutes of the Workshop on Reforms in Environmental Regulation with specific reference to the
establishment of the National Environment Protection Authority (NEPA) which was conducted by the
Ministry of Environment & Forests on 25.05.2010 available at http://envfor.nic.in/downloads/public-
information/mom-nepa-250510.pdf last seen 14/12/2016
xxExecutive Summary Executive Summary of the Report of the Report Scope, Structure and Processes
of National Environment Assessment And Monitoring Authority (NEAMA) available at
http://www.moef.nic.in/downloads/public-information/exec-summ-NEMA.pdf last seen 14/12/2016
xxiS. Barrett, Environmental regulations for competitive advantage, 2(1) Business Strategy Review 1,
15 (1991).
P. James, Business environmental performance measurement, 3(2) Business Strategy and the
xxii
Environment, 59, 67 (1994).
C. Nehrt, Timing and intensity effects of environmental investments, 17(7) Strategic Management
xxiii
Journal, 535, 547 (1996).
Michael E. Porter, and Claas van der Linde, Green and competitive: Ending the stalemate, 73 (5)
xxiv
Harvard Business Review, 120, 134 (1995).
xxvShibani Ghosh, Assessing the Subramaniyan Committee Report, CASI, (26/01/2015) available at
https://casi.sas.upenn.edu/iit/shibanighosh last seen 14/12/2016
xxviCommittee on Science and Technology, Environment and Forests, Rajya Sabha, High Level
Committee Report to Review Various Acts Administered by Ministry of Environment, Forest &
Climate Change, 2015
xxvii Supra 24.
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Report of The Committee Constituted to Examine The Issues Relating To Monitoring Of Projects
xxviii
January, 2011 Ministry Of Environment & Forests New Delhi; Draft Report on Scope, Structure and
Processes of National Environment Assessment and Monitoring Authority (NEAMA) For Ministry of
Environment & Forests, GoI by Kanika T. Bhal & Ravi Shankar Department of Management Studies
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Duncan Liefferink, and Mikael Skou Andersen, Strategies of the "green" member states in EU
xxix
environmental policy-making, 5 (2) Journal of European Public Policy, 254, 270 (1998).
xxxDavid Dolowitz, and David Marsh, Learning from abroad: The role of policy transfer in
contemporary policy making, 13 (1) Governance: An International Journal of Policy and
Administration, 5, 24 (2000).
xxxi F. Caircross, The challenge of going green, 72(4) Harvard Business Review, 40, 41 (1994).
George Pring & Catherine Pring, Greening Justice-Creating and Improving Environmental
xxxii
Courts and Tribunals, 14, 16 The Access Initiative, World Resources Institute 2009.
L. Pushpa Kumar, Dealing with Techno-legal Environmental Cases Can Green Tribunal Help
xxxiii
India? excerpts of the paper presented in Indo-Australian Workshop on Role of Specialists

Environmental Law Courts for the Resolution of Environmental Disputes held at Faculty of Law,
University of Delhi on February 1-2, 2011.
xxxiv186th Law Commission of India Report, Proposal to Constitute Environment Courts, (2003)
available at http://lawcommissionofindia.nic.in/reports/186th%20report.pdf last seen 16/12/2016
xxxvDaniel W. Drezner, Globalization and Policy Convergence, 3(1) International Studies Review, 53,
78 (2001).
xxxviDr. Usha Tandon, The National Green Tribunal Act 2010- Some Jurisdictional Issues; excerpts of
the paper presented in Indo-Australian Workshop on Role of Specialists Environmental Law Courts
for the Resolution of Environmental Disputes held at Faculty of Law, University of Delhi on February
1-2, 2011.
Helge Jorgens, Governance by diffusion? Implementing global norms through cross-national

xxxvii
imitation and learning, in Governance for Sustainable Development: The Challenge of Adapting
Form to Function, (W. M. Lafferty Cheltenham, 1st ed., 2004).
xxxviii Supra 31.
Judge Jack Costello, The Environment, Resources and Development Court: An Overview; excerpts
xxxix
of the paper presented in Indo-Australian Workshop on Role of Specialists Environmental Law

Courts for the
Resolution of Environmental Disputes held at Faculty of Law, University of Delhi on February 1-2,
2011.
There is no denying the fact that such division has cultural and lingual basis as well. Geography is
xl
only
one of the factors in State formation albeit important one.
xli Supra 33.
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Available at http://www.ipc.nsw.gov.au/lawlink/lec/ll_lec.nsf/pages/LEC_aboutus
xlii last seen
26/03/15.
xliii Australian Demographic Statistics, Jun 2010, Australian Bureau of Statistics.
xliv Ranking of States and Union Territories by Population Size: 1991 and 2001". Government of India,
Census of India (2001). pp. 56.
xlvChandra Bhushan, NGT must be Strengthened, Down to Earth 30/09/2014, available at

http://www.downtoearth.org.in/coverage/tribunal-on-trial-47400 last seen 12/12/2016
Excerpts of views expressed by Mr. Shyam Diwan in Indo-Australian Workshop on Role of

xlvi
Specialists Environmental Law Courts for the Resolution of Environmental Disputes held at Faculty of
Law, University of Delhi on February 1-2, 2011.
xlvii AIR 1987 SC 1086
xlviiiYukti Choudhary, Tribunal on Trial, Down to Earth 30/09/2014, available at

http://www.downtoearth.org.in/coverage/tribunal-on-trial-47400 last seen 12/12/2016.
xlix Ibid.
l Supra 47.
li Gail Omvedt, Understanding Caste: From Buddha to Ambedkar and Beyond, 66 (1st ed., 2011).
Prakash Chandra Upadhyaya, The Politics of Indian Secularism, 26(4) Modern Asian Studies, 815,
lii
853 (1992).
Dr. Yogesh Pratap Singh & Mr. Ayaz Ahmad, Constitutional Vision & Privatization of Higher
liii
Education: Two Issues of Social Justice, paper presented in an International Conference on Socio-
Economic Justice After Seventy Years Of Indias Independence: Domestic And Global Challenges
organized by Faculty of Law, University of Delhi from November 18 to 20, 2016.
Braj Ranjan Mani, Neobrahmanism, human rights & social democracy, Round Table India,
liv
01/02/2012 available @ http://roundtableindia.co.in/index.php

option=com_content&view=article&id=4595:neobrahmanism-human-rights-and-social-
democracy&catid=118:thought&Itemid=131 last seen 15/11/216.
lvC.M. Jariwala, National Green Tribunal: Whither (In)Justice? excerpts of the paper presented in
Indo-Australian Workshop on Role of Specialists Environmental Law Courts for the Resolution of
Environmental Disputes held at Faculty of Law , University of Delhi on February 1-2, 2011.
lvi Available at https://www.epa.gov/aboutepa/epa-organization-chart last seen 13/12/2016
lviiAvailable at http://www.lec.justice.nsw.gov.au/Pages/types_of_disputes/types_of_disputes.aspx
last seen 10/12/2016
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Indian Judiciary and the State in Article 12 of the

Constitution: Can there be an Essential State?
Arpan Acharya*
ABSTRACT
An examination of the scope of state under article 12 is important

because it essentially defines the limits of the most fundamental of
rights i.e the right to claim fundamental rights. In essence it is a
matter of circumscribing the boundaries of a citizens relationship
with the state and calibrating these parameters so that the result is a
system which is, at the same time, inclusive enough to ensure justice
and coherent enough to avoid a conceptual morass. The idea of this
paper is to see how judges have engaged with philosophical views of
what the state should be rather than what the state is. Judges do not
often engage in questions of political philosophy with regards to
normative ideas of the state. They have mostly used a descriptive
rather than a normative analysis of the state in arriving at
conclusions. However, sometimes, there are parts of the judgment
where they muse on broader questions. The paper tries to cull out
those elements of the landmark judgments on article 12 and examine
how complete our judicial ideas regarding the state are. In a modern
welfare state there are a number of functions related to public utilities
(like electricity and water supply) that have now been contracted out
to private players. In such a scenario it would make sense for us to
focus on this question of constitutional responsibilityvis-a vis private
players as well. For this we have to have at least a working model of
what this modern welfare state should essentially be. I suggest that
rather than the traditional understanding of public-private or
sovereign-non-sovereign, we have to move towards a more nuanced
understanding of the state i.e the idea of a notional public sphere.This
takes off from the idea that there may be governmental activities that
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are purely private in nature and activities of private entities that have
a governmental character.
Keywords: State, Constitution, Other Authority, Instrumentality of

State, Government, Parliament etc.
I. Introduction
Article 12 of the Indian Constitution defines state for the explicit purpose of
claiming fundamental rights. There is no problem with this as long as the citizens
engagement is with what is definitively called government, be it central or state
government. However, it is rarely the case that citizens engage directly with the
highest echelons of government. The interaction is mostly through layers of state
instrumentalities via departments, councils, schools, universities, administrative
machinery, etc. In short there are a host of controversial entities that lie between
the citizen and what can be legally called the state for the purposes of article 12. It
is obviously a question of interpretation, the final arbiter of which is the judiciary.
The idea of the paper is to engage comprehensively with this interpretation that has
come to us over the last sixty years and evaluate how complete judicial ideas
regarding the state are. It is an attempt to see what the limits (self-imposed or
otherwise) of this judicial idea of the definition of state are. An examination of the
scope of state under article 12 is important because it essentially defines the limits
of the most fundamental of rights i.e. the right to claim fundamental rights. In
essence; it is a matter of circumscribing the boundaries of a citizens relationship
with the state and calibrating these parameters so that the result is a system which
is, at the same time, inclusive enough to ensure justice and coherent enough to
avoid a conceptual morass.
The idea of constitutional law (and indeed that of a constitution) is to ensure that
individuals (both natural and juristic) are protected from arbitrary exercise of
power. The traditional idea is to put a fence around the citizen so that there are
certain minimum rights that the state cannot violate whimsically. However, with
the advent of welfare states that idea has undergone a transformation. In a modern
State, significant power is sometimes the province of entities which, at first glance
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at least, would not conform to traditional ideas of state. In a sense an aspect of

state sovereignty (delegated or otherwise) is present in these entities. This
sovereign power may be a creation of the state itself (as with statutory bodies) or it
may reside in these entities (government and private) because of the goods and
services they control; goods and services which are essential to modern living.It is
not important how these entities come to have this power; the thing to note is that
they can significantly alter legal relationships between themselves and citizens
without the citizens consent. Thus, if we are true to the spirit of constitutional law,
it should not matter who these entities are; as long as they have the power to affect
fundamental rights of a citizen detrimentally they should have the same liability as
the state. However, it is not simple to define what the limits of this obligation and
how these limits change in different operational spheres.
The definition of State, quite naturally, is not just a legal question. At some level, it
involves a value judgment about the purpose of the state and what the legitimate
functions of a state are. These judgments are often, made in specific socio-
economic contexts. How then are we to think about objective criteria for an
essential state? Is it even possible to do so? The Indian judiciary has mostly
steered clear of value judgments regarding the state when there has been a question
regarding Article 12. So, we find judgments from different eras which decide cases
based on how the state happens to look at that point in time. In essence; they have
used a descriptive rather than a normative analysis of the state in arriving at
conclusions. The consequence of course is that definition of state changes with
changes in (mostly) economic policy because that defines to what extent the state
performs its welfare functions. Would this be an appropriate method for the future
as the state receded more and more from goods and services which are necessary
for modern living? It is important to think about this because ultimately it is only
the State under Article 12 against whom fundamental rights may be claimed.
Hence these silences that emerge from a study of judicial decisions regarding article
12 need to be examined.
Article 12 includes the phrases within the territory of India and under the control
of the government of India. They are separated by an or thus they are disjunctive.
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The idea is that under the control of would include entities which are directly under
the government of India while within the territory of presupposes that there are
entities in India which are not under the control of the government of India. What
might these entities be? One argument is that state governments are entities which
can be thus defined. But some say that this interpretation does not make sense
because then it would be more reasonable to draft it as under the control of
government of India or state governments.i The remaining option is to read it as
covering entities which are not under government control i.e. private bodies which
may be engaged in governmental functions.ii This then makes the provision and its
interpretation a matter of political (and moral) philosophy which engages with how
the government should look rather than just how it looks at the moment. We need
to have a conceptual (and normative) baseline for what constitutes legitimate
government functions.iii
The structure of the paper is quite simple. The first part looks at the Indian
judiciarys treatment of the matter, the second part deals with American
jurisprudence on the matter, the third part discusses some ideas about the public
sphere which come from political and legal philosophy and the paper concludes
with the idea of a notional public sphere which is essentially the beginning of an
attempt to make a legally useful framework (with a normative underpinning) to
decide on questions of liability as state.With reference to American jurisprudence
I have limited myself to the pre- Civil Rights Act era because that is when the
judges were the primary agents of intervention in what was traditionally the private
sphere. The cases are not discussed in detail as such. The attempt has been to cull
out those parts where the judges have discussed (or mused about) what the state
ought to look like rather than limit ourselves to a traditional (and purely legal)
discussion.
II. Indian Scenario
Rajasthan State Electricity Board v Mohan Laliv (hereinafter Rajasthan State

Electricity Board) In Article 12 of the Constitution, the bodies specifically named
are the Executive Governments of the Union and the States, the Legislature of the
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Union and the States, and local authorities. The contention from the electricity
board was that the expression "other authorities", if read ejusdem generis with the
other terms, could not cover it (the board) which was a body corporate having a
separate existence and had been constituted primarily for the purpose of carrying
on commercial activities.vThe argument of ejusdem generis was rejected because
the court contended that there was no common thread running through the entire
article and thus the term other authorities could not take its meaning from just
governmental functions; commercial activities of the state would be included.viThe
rule of ejusdem generis means that specific words must apply not to different
objects of a widely differing character but to something which can be called a class
or kind of objects. Where this is lacking, the rule cannot apply, but the mention of a
single species does not constitute a genus.vii
As far as the word authority was concerned the court (speaking through Bhargava
J.) ruled that the dictionary meaning of the word "authority" is clearly wide
enough to include all bodies created by a statute on which powers are conferred to
carry out governmental or quasi-governmental functions.viii It did not matter
whether it was for a commercial or a so-called purely governmental function.
Bhargava J. said;
Art. 12 will include all constitutional or statutory authorities on whom

powers are conferred by law. It is not at all material that some of the
powers conferred may be for the purpose of carrying on commercial
activities. Under the Constitution, the State is itself envisaged as
having the right to carry on trade or business as mentioned in Art,
19(1)(g). In Part IV, the State has been given the same meaning as in
Art. 12 and one of the Directive Principles lid down in Art. 46 is that
the State shall promote with special care the educational and
economic interests of the weaker sections of the people. The State, as
defined in Art. 12, is thus comprehended to include bodies created for
the purpose of promoting the educational and economic interests of
the people. The State, as constituted by our Constitution, is further
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specifically empowered under Art. 298 to carry on any trade or

business.ix
The idea that emerged was that the term would include those created by statute as
well as those under the control of the government; regardless of the kind of
function they were carrying out.It was a rather broad definition of the state; one
based on recognizing the increasing role of a public corporation in modern states.
Shah J gave a concurring opinion but the reasoning was different. The board was a
repository of sovereign power because it could impose important restrictions on
basic fundamental freedoms. It could engage in certain incidental undertakings; to
organise and carry out power and hydraulic surveys; to conduct investigation for
the improvement of the methods of transmission; to close down generating
stations; to compulsorily purchase generating stations, undertakings, mains and
transmission lines; to place wires, poles, brackets, appliances, apparatus, etc; to fix
grid tariff; to issue directions for securing the maximum economy and efficiency in
the operation of electricity undertakings; to make rules and regulations for carrying
out the purposes of the Act; and to issue directions under certain provisions of the
Act and to enforce compliance with those directions.xThat was the essence of what
made it a stand-in for state rather than anything else.
Shah J. felt that it was necessary to consider article 12 in the context of article 13.
Article 13 prohibits the State from making any legislative or executive direction
which takes away or abridges the rights conferred by Part III and declares any law
or executive direction in contravention of the injunction void to the extent of such
contravention. Thus it would be necessary to bear in mind not only whether
against the authority,fundamental rights in terms absolute are intended to be
enforced, but also whether itwas intended by the Constitution-makers that the
authority was invested with thesovereign power to impose restrictions on very
important and basic fundamentalfreedoms.xi In essence sovereign power was the
power to make rules and regulations and enforce them to the detriment of citizens;
with the power to punish for violation of the same. The reasoning is important
because this is where we can trace the beginnings of the idea that private entities
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may be held liable for violation of fundamental rights because they are in a position
to do so.
Sukhdev Singh v Bhagatramxii(hereinafter Sukhdev v Bhagatram)The court

decided that only a body which had the power to issue directions the disobedience
of which could be criminally punished or it had the power to make, administer and
enforce rules and regulations. It affirmed Shah J.s view from Rajasthan State
Electricity Board that only those institutions which partake of the states sovereign
power can be liable as state under article 12. It was clear to the court at each stage
that the creation, composition of membership, the functions and powers, the
financial powers, the audit of accounts, the returns, the capital, the borrowing
powers, the dissolution of the Commission and acquisition of and for the purpose of
the company and the powers of entry are all authority and agency of the Central
Government.xiii
The respondents contention was that (service) regulations do not have a statutory
binding character, terms and conditions of employees as laid down in the
regulations are not a matter of statutory obligations, regulations are binding not as
law but as contract and thus regulations have no force of law.xiv The idea was to
compare the government corporation with a normal company incorporated under
the Companies Act and argue that they were essentially the same and hence there
could no liability as state for the ONGC, LIC or IFC. The court disagreed and said
that a company incorporated under the Companies Act is not created by the
Companies Act but comes into existence in accordance with the provisions of the
Act. It is not a statutory body because it is not created by the statute. It is a body
created in accordance with the provisions of the statute.xv The court further
distinguished it;
The regulations containing the terms and conditions of appointment

are imperative. The administrative instruction is the entering into
contract with a particular person but the form and content of the
contract is prescriptive and statutory. The noticeable feature in that
these statutory bodies have no free hand in framing the conditions
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and terms of service of their employees. These statutory bodies are

bound to apply the terms and conditions as laid down the regulations.
The statutory bodies are not free to make such terms as they think fit
and proper. Regulations prescribe the terms of appointment,
conditions of service and procedure for dismissing employees.xvi
The rules and regulations around service, even though contractual, were actually
derived from statute and thus their true nature was not really contractual. This
gives service rules and regulations the force of law and makes the institutions liable
as state.
The more significant part of the judgment, as far as normative ideas about the state
are concerned, actually comes from Mathew J.; even if it is obiter. He provided a
slightly different analysis and calls it the agency and instrumentality approach. It
matters not for him whether the corporation in question is statutory or has the
power to make regulations, enforce them and punish for non-compliance. What
matters is whether the corporation has the power to significantly change legal
relationships with citizens who interact with it in any capacity. He notes the
importance of applying the constitution to prevent arbitrary application of power
against individuals by centers of power. The idea of a constitution is to protect
against this arbitrary exercise of power. If that is indeed the case then the
provenance of the entity exercising the arbitrary power should not matter. xviiHe
notes that the essential problem of liberty and equality is one of freedom from
arbitrary restriction and discrimination whenever and however imposed. xviiiHe
discusses Harold Laskis idea that different powerful social groups need to be
recognized as holding sovereignty in a way that only the state exclusively did in the
past. He acknowledges this reality when speaks of the power of labour unions and
industrial giants and argues that it compels a reassessment of the relation between
group power and the modern state on the hand and the freedom of the individual
on the other.xix He points out the blurring lines between private and public and
notes;
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The corporate organisations of business and labour have long ceased

to be private phenomena. That they have a direct and decisive impact
on the social, economic and political life of the nation is no longer a
matter of argument. It is an undeniable fact of daily experience. The
challenge to the contemporary lawyer is to translate the social
transformation of these organisations from private associations to
public organisms into legal terms. In attempting to do so, we have to
recognize that both business and labour currently exercise vast
powers. First, they have power over the millions of men and women
whose lives they largely control as employees or as members. Second,
they exercise power more indirectly, though not less powerfully, over
the unorganized citizens whose lives they largely control through
standardized terms of contract, through price policy, through the
tempo of production and the terms and conditions of labour. Last,
they exercise control over the organized community, represented by
the organs of State, in a multitude of ways; direct lobby pressures,
control over election and policies of the elected representatives of the
peoples and far-reaching control over the mass media of
communication.xx
However, Mathew does not pursue this argument to its logical conclusion (possibly
because no private corporations were in question) and hold private corporations to
the same standards of constitutional liability as the state. He simply uses the
abovementioned line of reasoning to say that public corporations would indeed be a
part of the definition of state. He does however note in passing that large
corporations are not (always) powerful because they are state created but because
they provide goods and services which the community comes to rely on.He
concludes that despite the fact that there are no provisions for issuing binding
directionsto third parties the disobedience of which would entail penal
consequence, thecorporations set up under statutes to carry on business of public
importance or which isfundamental to the life of the people can be considered as
'state' within the meaning ofArticle 12.xxi In support of his contention that the
public corporation has indeed become the third arm of the government he quotes
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the Government of India resolution on industrial policydated April 6, 1948 which

stated, among other things, that "management of state enterprisewill as a rule be
through the medium of public corporation under the statutory control ofthe Central
Government who will assume such powers as may be necessary to ensurethis.xxii
Mathew raised another important point with regard to the nature of the function
carried out which the court had not (up until this point) discussed as significant for
a finding of liability under article 12. An important public service combined with
state financial aid would lead to a finding of liability. But there can be no definite
answer as to the quantum of state aid provided.Mathew goes on to say that if the
public function is such that it is most definitely something the government should
be doing then even the question of financing is irrelevant. If the function does not
fall within such a description, then mere additionof state money would not
influence the conclusion.xxiii It was not necessary for him to conclude substantially
about the functional aspect of the doctrine because all three organizations in
question fulfilled the other criteria i.e they were statutory bodies with the power to
make their own rules and enforce compliance with the same.
RD Shetty v International Airports Authorityxxiv (hereinafter RD Shetty) The

government, even as a contractor, is bound by public law obligations like fairness,
non-discrimination and non-arbitrariness. In a welfare state this is necessary to
protect people from excesses of power.xxv The frequency with which the citizen
comes in contact with the state increases with the increase in socio-economic
functions. It is necessary to restrict the power of the government. Authority may act
through the instrumentality of natural or juristic persons. How do we determine if
the corporation was the agency or instrumentality of the state? The court gave its
answer in terms of financial and administrative control of an unusual degree. It
also discussed the nature of the function discharged by the authority in question i.e
whether the function discharged was an important public function. If the functions
were of public importance and closely related to government functions, it would be
a relevant factor in determining liability. This is what set this case apart from the
previous ones; the ratio clearly sets out the nature of the function being performed
as one of the criteria to take into account when deciding the limits of constitutional
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liability.xxvi The court mentions that it has decided to follow Mathew J.s broader
approach as opposed to the narrower approach of the majority in Sukhdev v
Bhagatram. The court understands the difficulty in setting out these functions
exhaustivelyxxvii and in fact says that the distinction of government and private may
no longer be valid. What is required instead is an understanding of government
activities which may be private in nature and private activities which may be
governmental in nature.xxviii It stands to reason that the court had to use some
criteria to decide what an essential government function is and what is not. The
idea is set out by the court in a descriptive fashion i.e they have looked at the then
current socio-economic scenario come to a conclusion about the Airports Authority.
Unlike Mathew J. who speaks of a slightly more normative understanding when he
speaks of centres of power, the majority in this case stuck rather closely to the task
at hand and declined to make any comments on the telos of constitutions.
Generally speaking the court should only discuss the matter at hand and flights of
legal fantasy have traditionally been frowned upon. However, as Mathew himself
says in Sukhdev v Bhagatramxxix there are times when a constitutional court is
called upon to reflect (even if its obiter) on society in a manner which is not purely
legal and which involves some political understanding and moral judgment. This
was an opportunity for the court to do that; especially since the functional test in
this judgment was inspired by a similar reflection on Mathews part in the previous
celebrated case.xxxIn the absence of such musing on part of the court, what happens
when a state withdraws from function it used to perform?In the post-liberalisation
era many of the functions traditionally performed by the state (or public
corporations) have been outsourced to private corporations. How then are we
engage with these questions without a discussion on the minimum normative
criteria for what state functions are? Unless this exercise is normative there is a
danger that this question (and the larger question of rights) may become appended
to economic policy. Todays description of the welfare state may be different from
the one that we find twenty years down the line. The obvious answer to this is that
rights and their substance are always in flux. While admitting that this is true, we
have to note that the sole criteria for determining the extent of those rights cannot
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be economic policy. The right in question here is of course is the right to claim
fundamental rights against entities analogous to the government.
The court in RD Shetty relied on Marsh v Alabama from the US Supreme Court.
However the considerations, though similar, were slightly different there. It was a
question of whether the first amendment right of free speech was applicable to the
sidewalks of a company township. One of the criteria for deciding in favour of free
speech (along with the public function test) was also the fact that there was no
viable alternative for the people living in the township to demonstrate. The Indian
Supreme Court seems to have not taken this particular aspect of the Marsh
judgment into account. They do take into account the US Supreme Courts opinion
that when there is town and a municipality there is no question of not being liable
even if its a private town because running a township is unquestionably a
government function. They conclude that the public nature of the function
impregnated with governmental character and entwined with some government
function would render a corporation an instrumentality of the government.
However, the exact nature of these terms or indeed the idea of sovereignty and
contracting sovereignty are not discussed in any significant detail. The other
interesting thing to note in this judgment is the lack of importance accorded to the
statutory nature of the corporation.
Ajay Hasia v Khalid Mujibxxxi (hereinafter Ajay Hasia)- The approach of the court
was the piercing the corporate veil approach that is employed in company law. The
criteria devised in RD Shetty were laid out in a more explicit manner. The six
parameters were share capital, financial assistance, state backed monopoly, deep
and pervasive state control, functions of public importance, transferring functions
to a corporation.xxxiiSome have suggested that the function test was reduced in
importance in this case by making it one of the six tests. xxxiii But a plain reading the
relevant passage from the RD Shetty case does not make it seem as if the court in
that case had accorded the function test any special importance as such. It was
simply one of the five criteria that the court seemed to set out to deal with the issue.
It is true that the first three had to do mostly with the management and control
(whether there is any financial assistance given by the State, and if so, what is the
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magnitude of such assistance whether there is any other form of assistance, given
by the State, and if so, whether it is of the usual kind or it is extraordinary, whether
there is any control of the management and policies of the corporation by the State
and what is the nature and extent of such control, whether the corporation enjoys
State conferred or State protected monopoly status) and only the last criteria had to
do with the functional aspect. But the way they set the criteria out in RD Shetty is
pretty much the same as the way they set these out here. It was held that the idea
behind article 12 was to not allow the government to evade its responsibility by
setting up corporations which were (ostensibly) independent of it. Hence the
analysis had to proceed so as to prevent this fraud from occurring. Hence the
reason for the overwhelming importance attached to the control test and the
relegation of the function test. The court in its analysis of facts seems to have paid
no attention to the nature of the function performed by the body in question i.e
higher education.As discussed earlier the ramifications of this lack of deliberation
was to have an idea of the state shorn of value judgments of what the state should
look like.
Pradeep Biswas v Indian Institute of Chemical BiologyxxxivThe court read the

history of article 12 slightly differently. The distinction was not made out in terms
of a broad and narrow approach. Essentially the narrow approach is one where
the statutory status of the entity in question is important and the broad approach
is when control is the most important consideration, regardless of statutory
status. The functional criterion is not spoken of; rather it is subsumed within the
control test. The real (and only) question to be determined is whether the body is
financially, functionally and administratively dominated by the government. If
control is merely regulatory, then it would not render the body state under
article 12.
Zee Telefilms v Union of Indiaxxxv(hereinafter the BCCI Case)The BCCI does not
satisfy five of the six criteria laid out above in RD Shetty. Thus the court held that
even though there was an element of public duty involved in the case because
BCCI had a monopoly on the game of cricket in India, by itself this could not offset
the absence of the other factors. The fact that the BCCI was a centre of power
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which could alter legal relationships to the extent of infringing on fundamental

rights of the petitioner (article 19(1)(g) i.e the freedom to carry on a trade,
business or profession, in this case) was not something that the court took into
account. The argument advanced was that the court state had chosen to leave this
particular function to the BCCI and had never showed any intention of interfering
with this monopoly. Hence it was not tenable to hold that the BCCI was state
under article 12. However there was no discussion about the fact that the BCCI
had complete monopoly over what is essentially a primary cultural good i.e
cricket.
This raises an important question already highlighted in the previous cases; what
if the state withdraws from other functions too. In fact the court takes not of it and
holds that Rajasthan Electricity and Sukhdev were decided in different socio-
economic circumstances. Now the state is concentrating on governance rather
than business. As argued earlier it appends the right to claim fundamental rights
to economic policy, which seems rather strange to say the least. The court also
takes note of the fact that the BCCI does discharge a public duty in the sense that it
selects the team which represents the country and for that there are certain
obligations which it will incur.xxxviThese obligations cannot be wished away but
there cannot be finding of liability under article 12 as state. Instead there is
always the option of article 226 which deals with fundamental rights (claimed
against the state) as well as other legal rights (claimed against all entities
including state).
III. United States of America
Gompers v USxxxvii This was one of the first significant cases involving the state
action doctrine in the USA. The Texas legislature enabled the Democratic Party to
exclude blacks from voting in its primary elections; each of these measures was in
turn struck down by the Supreme Court as state action in violation of the non-
discrimination principle. Texas repealed these laws, leaving the matter to the
discretion of the party convention, which renewed the racial exclusion. For a time
the party appeared to have succeeded: the Court upheld the exclusion as the action
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of a private group entitled to select its own members. Political parties are indeed
hybrids, each group in principle espousing distinctive ideas and programs, yet each
an integral part of an electoral process that is plainly official and governmental. The
Court later repented of its permissive decision (in Smith v Allrightxxxviii), overruled
it, and held that in the electoral process a political party, like the state itself, must
conform to non-discrimination requirements of the US Constitution. There is an
important question that needs to be flagged here; does this categorization of state
action in one sphere attach itself to others as well? For example, does the right to
vote in the primary also entail that one gets a chance to speak at the convention?
Marsh v Alabamaxxxix We have already discussed this case briefly. Essentially the
Supreme Court held that the corporation in question was akin to a surrogate
municipal council due to the fact that there was no viable alternative for residents
to exercise their free speech rights. Thus its action in preventing Jehovahs Witness
members from distributing pamphlets violated constitutional provisions. We see
that eventually the scope of this protection, when it came to picketing, was whittled
down using the spheres of influence argument. It was first limited to labour
disputes with shopowners and eventually in Hudgens v NLRB shopping centres
were completely removed from the ambit of state action. This is an interesting
practical demonstration of the problem of limiting the application of law which was
flagged earlier.
Shelly v KraemerxlThe matter at hand was a property covenant specifying that the
land in question could be sold only to whites. The land was sold in contravention of
this covenant and the state courts nullified the sale by giving effect to the covenant.
Unlike the previous case, the Supreme Court steered clear of a functional test and
simply held that the state court, by giving effect to a restrictive covenant, had
violated the constitution and it was certainly an arm of the state and hence there
was no difficulty in calling this state action. It left unanswered the question of how
to deal with restrictive covenants if the courts or general administration does not
get involved and it is just a matter between private parties. In short there was an
easy way out and the court took it.
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IV. Hohfeldian Categories
Wesley Newcomb Hohfeld wrote an important legal essay in 1913 where he used
the Aristotlean square to analyse legal rights. He claimed that our use of the word
right was too liberal and this conceptual incoherence stopped us from developing
a proper theory of rights.xli He gives the example of the word property and
discusses the various ways lawyers and laymen use it to connote different things.xlii
According to him the issue arises partly from the fact that their use in connection
with legal relations is, strictly speaking, figurative or fiction. xliii Words like power,
liberty, claim, etc have been borrowed by law from everyday usage and have been
changed, subtly or otherwise, for use in the legal field. Hence it becomes important
to see what meaning they occupy in the legal world. He demonstrates it as a few
jural correlatives; 1) (claim)right-duty, 2) privilege-no-right, 3) power-liability and
4) immunity-disability. When the relationship is that of claim right and duty, it is
imperative that everybody other than the one who claims the right assist in the
fulfillment of this right like it is their duty to do so. If however, I have a privilege
then a no-right can be claimed against me. If an institution, such as the
government, has power over me then I am liable under that power. It is only if I
have a special immunity that I escape from this power. In the legal world these
distinctions are important because they establish burden of proof. In terms of
state-citizen relationships this is important because the nature of the right should
play an important role in deciding whether constitutional liability is to be imposed
on an entity or not.It is interesting to surmise if the Indian Supreme Court would
have looked at the BCCI case differently and made an explicit pronouncement on
the nature of the good that the BCCI controlled if a cricket fan had simply filed a
case because his right to participate in an important cultural phenomenon was
being affected. This is where it becomes important to look at it in the Hohfeldian
sense and decide whether, given the current cultural expectations of the citizenry, it
is a right or a privilege to watch cricket in India.
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V. Public Sphere
Habermas says that only when the exercise of political control is effectively
subordinated to the democratic demand that information be accessible to the
public, does the political public sphere win an institutionalized influence over the
government through the instrument of law-making bodies.xliv The separation of
the princes household from what would come to be known as the public sphere
was visibly manifested in the separation of the public budget from the private
household expenses of a ruler. In her book Searching for the State in British Legal
Thought: Competing Conceptions of the Public Sphere; Janet McLean says that
this distinction is still a problematic one in Britain because of the nature of a
constitutional monarchy. It is claimed that the Crown has been a poor substitute
for the state mostly because with an actual monarch it becomes very difficult to
separate the personal from the political.xlv The legal implications are clearly
brought out in cases involving government servants where one of the questions is
whether they are acting in personal or professional capacity. Hence it is not as if
courts dont decide on such matters on a regular basis in administrative law. What
makes article 12 different is the generic pronouncement that has to come regarding
the nature of the state. This is possibly also why courts have been reluctant to
engage in a more abstract debate on the essentials of the state.
Gradually in early modern Europe, institutionsof public authority, like the

bureaucracy, the military and the courts, asserted their independence fromthe
privatized sphere of the princely court.xlvi What essentially happened as a result of
this was that the mediating authorities changed and the location of negotiations
about rights and liabilities changed. Describing this Habermas says;
Conflicts hitherto restricted to the private sphere now intrude into the
public sphere. Group needs which can expect no satisfaction from a
self-regulating market now tend towards a regulation by the state.
The public sphere, which must now mediate these demands, becomes a
field for the competition of interests, competitions which assume the
form of violent conflict. Laws which obviously have come about under
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the "pressure of the' street" can scarcely still be understood as arising

from the consensus of private individuals engaged in public
discussion. They correspond in a more or less unconcealed manner to
the compromise of conflicting private interests.xlvii
Historically this is one of the ways of tracing how these structural changes lead to
demands from hitherto unrepresented sections of society (mostly the third estate)
for more rights and less onerous duties. If we look at the above passage carefully we
can see an echo of Mathew J.s ideas about the transformation of the public sphere
and the how the private now spills over to the public because there are organized
centres of power which partake in the power of a sovereign state because they
control labour or capital.
It is important to understand the roots of public sphere and understand that

sometimes what seems to play out in the public sphere is a question of private
interest. The US courts dealings with racial discrimination in privately owned
housing blocks are an example of this. When we speak of a right to dispose of
property in accordance with ones wishes, as far as possible, it may be advisable to
take into account the historical and cultural factors responsible for such
acquisition. Essentially this is, more generally, an argument about privilege;
another manifestation of which may be seen in the affirmative action/reservation
debate. Ideas about the state have been contestations of ideologies and a clash of
world-views. These ideas are at some level value judgments. A more comprehensive
judicial engagement with the relevant literature will certainly lead to judges being
in a better position to make these judgments.
VI. Conclusion: A notional public sphere
How then do we translate ideas of how the state ought to look into a useful legal
framework? Should judges be making normative judgments about what the public
sphere should look like or is this a question best left to the political process? The
basic structure doctrine is in essence an idea of what the state ought to look like in
the arena of civil and political rights. Why then can we not have a similar judgment
about economic and social rights? The answer lies in the deceptively simple nature
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of civil and political rights because they are, superficially at least, costless and
hence raise no questions of economic allocation. The reluctance stems from our
traditional understanding of the civil-political and economic-social as watertight
compartments. Of course, the judicial activism of the past thirty years has
challenged this understanding with regards to specific fundamental rights. Why
then can we not engage in the larger project of imagining the state in a certain way?
How are we to do it in a way that ensures that judges do not indulge in flights of
fantasy but remain committed to a fair and just society?
Perhaps, the answer lies in Mathew J.s idea that instead of government and private
functions we should look at government activities which are private and private
activities which are governmental in nature. Every time a question arises under
article 12 our endeavour should be to check if the entity (as well as the transaction)
fulfils the criteria of what might be called the notional public sphere. These criteria
could include the nature of the entity (is it a salon or a drugstore), the nature of the
transaction (the right of a salon owner to refuse service is not on the same pedestal
as the right of a drug store owner to refuse service), the transactions cost which
arise on refusal/denial/lacunae in service (which includes how easily replicable this
service is in the immediate neighbourhood i.e. if there are other medicine stores in
the immediate vicinity which are accessible conveniently), the relative bargaining
positions of the parties involved (which lets us know if a finding of liability under
article 12 is the quickest and most convenient remedy) and of course the immediate
socio-economic context and the expectations of the citizenry. There is no fixed
answer to the question posed by article 12. However, idea of a notional public
sphere might help us move away from a false dichotomy of government and private
and lets us concentrate on the real purpose of constitutional law i.e the protection
of individual liberty against the exercise of arbitrary and untrammelled power, and
in the process might give us a more holistic and just concept of the state.
References:
*Ph.D. Scholar at Jawaharlal Nehru University
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iGautam Bhatia, What is the State? I: Article 12 and Constitutional Obligations, April 26th, 2014
at https://indconlawphil.wordpress.com/2014/04/26/what-is-the-state-i-article-12-and-
constitutional-obligations/ (last viewed on 5/12/16)
iiIbid
iiiIbid
ivAIR 1967 SC 1857
vPara 3 Rajasthan State Electricity Board Case
vi Ibid Para 5
vii Ibid Para 4
viii Ibid Para 6
ix Ibid Para 7
x Ibid Para 10, Shah J; The Board is also invested bystatute with extensive powers of control over
electricity undertakings. The power tomake rules and regulations and to administer the Act is in
substance the sovereign power of the State delegated to the Board.
xi Ibid Para 12, Shah J.
xiiAIR 1975 SC 1331
xiii Ibid Para 44
xiv Ibid Para 10
xv Ibid Para 25
xvi Ibid Para 23
xvii Ibid Para 90, Mathew J.
xviii Ibid Para 90, Mathew J.
xix Ibid Para 91, Mathew J.
xxIbid
xxi Ibid Para 78, Mathew J.
xxii Ibid Para 89, Mathew J.
xxiii Ibid Para 98, Mathew J.
xxivAIR 1979 SC 1628
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xxvGautam Bhatia, What is the State III: Adopting the Instrumentality or Agency Test, 15th
August, 2014 at https://indconlawphil.wordpress.com/2014/08/15/what-is-the-state-iii-adopting-
the-instrumentality-or-agency-test/ (last viewed on 5/12/16)
xxviPara 16 RD Shetty
xxvii Ibid Para 19
xxviii Ibid Para 18
xxixPara 79 Sukhdev v Bhagatram, Mathew J. : One of the greatest sources of our strength in
Constitutional law is that we adjudgeonly concrete cases and do not pronounce principles in the
abstract. But there comes amoment when the process of empiric adjudication calls for more rational
and realisticdisposition than that the immediate case is not different from preceding cases.
xxxPara 28 RD Shetty
xxxiAIR 1981 SC 487
xxxii Ibid Para 9
xxxiii Gautam Bhatia, What is the State IV: Agency/Instrumentality as a Function of State Control,
17th August, 2014 at https://indconlawphil.wordpress.com/2014/08/17/what-is-the-state-iv-
agencyinstrumentality-as-a-function-of-state-control/ (last viewed on 5/12/16)
xxxiv (2002)5 SCC 111
xxxvAIR 2005 SC 2677
xxxviPara 31 BCCI Case
xxxvii233 U.S. 604 (1914)
xxxviii321 U.S. 649 (1944)
xxxix326 U.S. 501 (1946)
xl 334 U.S. 1 (1948)
xliWesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial
Reasoning, The Yale Law Journal, Vol. 23, No. 1,November 1913, pp. 16-59 ; the term "rights" tends
to be used indiscriminately to cover what in a given case may be a privilege, a power, or an immunity,
rather than a right in the strictest sense... at 30
xliiIbid at 21-22
xliiiIbid at 24
xlivJrgen
Habermas, Sara Lennox, Frank Lennox, The Public Sphere: An Encyclopedia Article, New
German Critique, No. 3 (Autumn, 1974), pp. 49-55. See also Jurgen Habermas, The Structural
Transformation of the Public Sphere, Cambridge, Mass., 1989
Cambridge, UK, 2015 at 133 discussing Loughlin, The State, the Crown and the Law and
xlv
Kantorowicz, The Kings Two Bodies: A Study in Medieval Political Theology.
xlvi Habermas et al supra note 14 at 51
xlvii Ibid 54
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Writ Jurisdiction and Stock Exchanges in India
Satish Padhi*
ABSTRACT
This article examines the manner in which Indian Courts have

construed the stock exchanges in respect of writ jurisdiction. The
article focus on examining the manner in which the courts have
perceived the stock exchanges in respect of writ jurisdiction under
Article 226 of the Constitution and Article 12 of the Constitution.
Thereafter, the article scrutinizes the contours of stock exchange
liability under Mandamus and Certiorari and analyses the effect of
demutualization of stock exchanges on the applicability of writ
jurisdiction to stock exchanges. The article concludes by stating that
the judgment of the Supreme Court and the division bench of the Delhi
High Court in K.C Sharma wherein they have held that the Delhi Stock
Exchange is covered within the ambit of other authorities under
Article 12 and therefore the jurisprudence of fundamental rights
applies to it is a sound one. Post demutualization, the above two
judgments will still remain the correct law as the basis on which the
Stock Exchange was held to be a state was by applying the tests laid
down laid in R.D Shetty and Biswas and stating that the tests of
various kinds of control are applicable to the stock exchange.
Keywords: State, Other authority, Writ, Jurisdiction, Mandamus,

Certiorari, stock exchange etc.
I. Introduction
Stock Exchange means, any body of individuals, whether incorporated or not,

constituted for the purpose of assisting or controlling the business of buying, selling
or dealing in securities.i The history of stock exchanges in foreign countries, as well
as in India, shows that the development of joint stock enterprise would have never
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reached its present stage, but for the facilities which the stock exchanges provided for
dealing in securities and they have a very important function to perform in a
countrys economy.ii Their main function, in the words of an eminent writer, is to
liquefy capital by enabling a person who has invested money in, say, a factory or a
railway, to convert it into cash by disposing of his share in the enterprise to someone
else.iii Without the stock exchange, the capital would become immobilized. iv
In 1925, the Bombay Securities Contract Control Act was passed to regulate and
control contracts for the purchase and sale of securities in the City of Bombay and
elsewhere in the Bombay Presidency. After the Second World War, the post-war
boom gave an unhealthy impetus to the stock exchange transactions.v Various expert
committeesvi appointed by the government from time to time considered the
question of regulation of stock exchanges and the latest of those committees was the
Gorwalla Committee and the report of that committee was circulated to the principal
stock exchanges, Chambers of Commerce, and other interested associations and
individuals resulting in the enactment of Securities Contracts (Regulation) Act, 1956
(hereinafter Act).vii The Act was passed so as to prevent undesirable transactions in
securities by regulating the business of dealing therein. Section 4 of the Act
empowers the Central Government to recognize stock exchanges. Section 5 of the Act
empowers the Central Government to withdraw the recognition granted under
Section 4. Section 13 enables the Central Government the Central Government to
issue a notification that in a particular state or area every contract which is entered
into after the date of the notification otherwise than between members of a
recognized stock exchange in such state or area or through or with such member
shall be illegal.
Writ Jurisdiction provides an effective safeguard against the violation of the

fundamental rights. The writ jurisdiction of the High Court and the Supreme Court
arises out of Article 32 and Article 226 of the Constitution respectively. Most of the
fundamental rights are guaranteed against the state. An entity must satisfy two tests
that it is not State under Article 12, and also that it is not a person or authority
under Article 226 to fall outside the scope of writ jurisdiction, otherwise it has to be
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prepared to abstain from acting in breach of fundamental rights enlisted in Part III of
the Constitution.
A petition challenging the decision of the governing board of the Stock Exchange not
to grant membership and seeking mandamus would be maintainable only if stock
exchanges are under the purview of an authority within the meaning of Article
226.viii Similar would be the situation in case of a petition against the action of a
stock exchange in the matter of admission of a member or expulsion thereof ix and
seeking membership without imposing any unreasonable and arbitrary terms. x The
writ of Mandamus is issued to provide for remedies where a fundamental right is
infringed by a statute, statutory order or a non-statutory executive order.xi This is the
significance of writ jurisdiction against Registered Stock Exchanges.
It is not always possible to get a clear cut answer whether writ jurisdiction applies to
a certain body. Courts may regard an entity amenable to writ jurisdiction in respect
of certain functions that it may undertake while with respect to certain other
functions, it may not be covered.xii For instance, The Karnataka Stock Exchange was
held to be not amenable to writ jurisdiction as it was not performing a sovereign
function.xiii In this backdrop, the following questions are examined in this article:
1. How the courts have perceived the stock exchanges in respect of writ
jurisdiction under Article 226 of the Constitution?
2. Whether the Stock Exchanges fall within the ambit of Article 12 under other
authorities?
3. How have courts interpreted the contours of stock exchange liability under
Mandamus and Certiorari?
4. What is the effect of demutualization of stock exchanges as regards the
applicability of writ jurisdiction?
The article examines the manner in which Indian Courts have construed the stock
exchanges in respect of writ jurisdiction. This article is, however, restricted to the
examination and scrutiny of judicial process.
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II. Stock Exchange: A State under Article 12?
The issue of Stock Exchanges being amenable to the writ jurisdiction of the High
Court was first raised in SejalRikeenDalal v. Stock Exchange, Bombayxiv
(hereinafterDalals Case). The question before the Bombay High Court was whether
the Bombay Stock Exchange can be considered to be to be amenable to the
jurisdiction of the High Court under Article 226 of the Constitution. It was contended
by the Stock Exchange, Bombay that it is not an authority within the meaning of
Article 226 of the Constitution of India. The Court referred to the judgment of the
Supreme Court in Shri Anadi Mukta Sadguru Shree
MuktajeeVandasjiswamiSuverna Jayanti Mahotsav Smarak Trust v. V.R Rudani xv
(herein after referred as Anandis Case), where in the court had held that the term
authority used in Article 226 must receive a liberal meaning unlike the term in
Article 12 of the Constitution. It had said, The words any person or authority used
in article 226 are, therefore, not to be confined only to statutory authorities and
instrumentalities or the State. They may cover any other person or body
performing a public duty. The form of the body concerned is not much very
relevant. What is relevant is the nature of the duty imposed on the body. The duty
must be judged in light of the positive obligation owed by the person or authority to
the affected party. If a positive obligation exists mandamus cannot be denied.xvi
The Bombay Stock Exchange is also a recognized Stock Exchange under the
Securities Contracts Regulation Act, 1956. The Court speaking through Mrs. Sujata
Manohar J, began by stating that the Bombay Stock Exchange is, therefore a
statutory body and the Central Government is vested with supervisory powers under
the said Act.xvii Moreover, the Stock Exchange is, inter alia, established to assist,
regulate and control dealings in Securities and to ensure fair dealings and these are
objects of public interest. So, it held following the principle laid down in Anandis
Casexviii that the Bombay Stock Exchange is amenable to the jurisdiction of the High
Court under Article 226 of the Constitution.
Subsequently the issuexix was agitated before the Kerala High Court in Satish Nayak
v. Cochin Stock Exchangexx (hereinafterSatishs Case). The Court looked at the tests
laid down by the Supreme Court in Ajay Hasia v. Khalid Mujibxxi and R.D Shetty v.
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International Airport Authority of India and Othersxxii and held that there is no
existence of deep and pervasive state control. The Court speaking through
Shanmugam J, began by stating that the state does not lay down policies for the stock
exchanges and apart from being represented by certain Government owned
Corporations the management is totally independent of the Government control and
there is no material to say that the Stock Exchange is an agency of the Government.
The Memorandum of Association does not show that the stock exchange discharges
any public duty. Public Education is the duty of a welfare state and if the said duty is
performed by a private institution it could be held to be discharging a public duty.
But in this case there is no duty cast upon the Government to run stock exchanges
and in the absence of it the stock exchange which does the business of securities
cannot be termed as discharging public duty.xxiii The Kerala High Court also stated
expressly that the Decision of Bombay High Court in Dalals Casexxiv has not been
correctly decided and it failed to take note of the ratio laid down in Anandis Case.xxv
The Court held that a writ of a certiorari is not maintainable against Cochin Stock
Exchange Ltd. as it is not amenable to writ jurisdiction. We find a complete contrast
in decision making where in the Bombay High Court xxvi states that the Stock
Exchange is dealing with objects of public interest whereas the Kerala High Court xxvii
stating that the Stock Exchange cannot be termed as discharging public duty.
The Karnataka High Court in R. Jagadeesh Kumar v. P. Srinivasan and Othersxxviii

followed the principle laid down in Satishs Case.xxix The Court speaking through
Rajendra Babu J, stated that the Bangalore Stock Exchange in exercising its powers
under the Articles of Association in the matters of admission or expulsion of
members only owes a duty to that particular member and not to the public at large
and does not discharge any public duty which is amenable to writ jurisdiction. xxx It
stated that the nature of the control that is exercised by the central government from
a perusal of provisions referred to from Sections 3 to Section 12 of Act xxxi would only
indicate as to making provisions for carrying on effective functioning of the Stock
Exchange and does not take away the powers of a stock exchange in the matter of
internal regulation, namely, to take a decision as to whether a person who is a
member of the Stock Exchange should continue to be so or whether a person is
entitled to be a member of the stock exchange, as long as the power that is exercised
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by the stock exchange is within the framework of the statute.xxxii Therefore, by no

stretch of imagination can it be said that the stock exchange in the matter of
regulating as to who should be its members and who should be expelled exercises any
public duty or discharges any duty to the public at large.xxxiii
Subsequently, the Madras High Court in A. Vaidyanathan v. Union of Indiaxxxiv,

speaking through P. Sathasivam J, stated that the regulatory measures by itself are
not sufficient in the absence of any other factors like financial assistance, control of
management and policies, State protected monopoly status and public functions to
make an entity amenable to the writ jurisdiction under Article 226 of the
Constitution.xxxv So the Court held that the Madras Stock Exchange Limited is not an
authority under Article 226 of the Constitution.
So, we find three High Courtsxxxvi stating that their respective Stock Exchanges as not
coming under the purview of an authority under Article 226 of the Constitution.
These three decisions appeared to have settled the controversy.
The Madhya Pradesh High Court was confronted with the question whether the M.P
Stock Exchange was State within the meaning of Article 12 and if not whether it
could still be amenable to the writ jurisdiction under Article 226 of the Constitution
in Rajendra Rathor v. M.P Stock Exchange and Others.xxxvii The Court speaking
through B.A Khan J, began by stating that a body or association, a society or a
corporation may not strictly fall within the definition of "State" under Article 12 and
yet may be amenable to writ jurisdiction under Article 226, if it satisfied the newly
evolved tests of being engaged in discharge of public duty/functioning and
responsibility and disclosing an element of public interest in its
functioning.xxxviiiGone are days when the writ was believed to run only up to the
"State" under Article 12 and the concept has undergone a sea change and made
spectacular advance over the years widening the frontiers and horizons of the writ
jurisdiction.xxxix Now it is available even against private persons, bodies, associations
and corporations if it is found that a statutory public duty was cast on these and an
element of public interest was present in their functioning. xl The court then made
some pertinent observations: The stock exchange possesses all the trappings so
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much so that it owes its existence to the Central Government because it could not be
set up without its permission and recognition.xli It could be also superseded by it
and its business suspended in the interest of trade and public. Its rules and bye-laws
are also subject to the approval of the Government or SEBI. Three of its members of
the governing body are also nominated by the Government. Its accounts and affairs
are subject to Government audit and scrutiny and so on. What is, however, missing
is that the Central Government has no hand in its internal functioning and
management, or any financial involvement nor any domination in its
management. It then held that eligibility of Stock Exchange as a State under
Article 12 is a border line issue and even it is not a State under Article 12 it could still
be amenable in certain cases where it was shown that it was performing
statutory/public duty cast on it under the statute and it would all depend on the facts
and circumstances of each case.xlii
We find similar analogy also in Rakesh Gupta v. Hyderabad Stock Exchange

Limitedxliii, the court speaking through P.S Mishra J, had observed that if the
Exchange fails to perform its public duty in the sense that it goes beyond the
mandates of its rules and its bye-laws, or in the performance of the same has violated
any of the fundamental rights, then a petition under Article 226 is legitimately
maintainable.xliv Thereby, it had issued a writ of mandamus to the Hyderabad Stock
Exchange to issue orders to remove members wrongly admitted as members of the
Stock Exchange.
Later in Trilochana K. Doshi v. The Stock Exchange of India and Anotherxlv, the
same issue was once again raised before the Division Bench of the Bombay High
Court. It referred to the decision in Corporation of City of Nagpur v. Nagpur Electric
Light and Power Company Limitedxlvi, wherein it was stated that a public utility has
the duty to supply a commodity or to furnish service to the public. This duty exists
independently of statutes regulating the manner in which it shall do business or of
contracts with municipalities or individuals, and is imposed because the utility is
organized to do business affected a public interest and holds itself out to the public as
being willing to serve all members thereof and such being the position, a writ can be
issued at the instance of any consumer to a public utility concern xlvii. The court
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speaking through S. Radhakrishnan J, began by stating that the jurisdiction of the

High Court under Article 226 of the Constitution of India, can be exercised against
any person or authority rendering a public utility service. xlviii It then went on to see
the way the Mumbai Stock Exchange is regulated by the Central Government under
the various statutory provisions of Securities Contracts Regulation Act, 1956.xlix
Under Section 11 of the Securities and Exchange Board of India Act (herein after
referred as SEBI Act), 1992, the SEBI can regulate the business and the functions of
the Exchange, its Governing Board and the members of the Exchange. Under
Sections 16, 17 and 18 of the SEBI Act, the Central Government has total control over
the SEBI. Ultimately, it was held that a writ of mandamus would lie against the
Mumbai Stock Exchange under Article 226 of the Constitution. We find the Court
adopting and following the rationale laid down in Dalals Case.l
III. The Realm of Other Authorities
In Delhi Stock Exchange v. K.S Sharmali, a letter patent appeal before the Division
Bench of the Delhi High Court, the Court for the first time had to answer whether the
Delhi Stock Exchange is a State under Article 12 of the Constitution. It is to be
mentioned that before the courts had been called upon to decide whether Stock
Exchanges were amenable to Writ Jurisdiction under Article 226 of the Constitution
of India but the question of Stock Exchanges being state under Article 12 was never
before decided by the courts directly. The Court speaking through S B Sinha J, began
by examining the control of the Central Government /SEBI over the stock exchange
in terms of the 1956 Actlii in order to bring it within the authority contained in Article
12. The Court came to the conclusion that not only stock exchanges perform an
important function, its control by the Central Government/ SEBI is deep and
pervasive.liii The Court also took note of the fact that even the writ petitioner
preferred an appeal before SEBI against the impugned order and filed a
representation before SEBI which was entertained. The SEBI constituted an
independent committee and despite pendency of writ petition before this court
arrived at his own finding. This the Court held goes on to show that not only the
Central Government but also a statutory authority exercises deep and pervasive
control over the Stock Exchange. It further emphasized that it may be that it does not
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receive any financial assistance, but receiving the financial assistance is not the only
criteria for holding that an instrumentality of the state would come within the
purview of the definition of other authorities.liv So, it held that the Delhi Stock
Exchange would come under the purview of other authorities under Article 12. This
judgment was appealed before the Supreme Court in K.C Sharma v. Delhi Stock
Exchangelv. The Court speaking through Srikrishna J, simply stated that they were in
agreement with the conclusion of the Division Bench that the Delhi Stock Exchange
is amenable to the writ jurisdiction.lvi But the Apex Court did not give any reasons for
being in agreement or arriving at the same conclusion. The judgment of the Apex
Court has settled the controversy and now stock exchanges are amenable to the writ
jurisdiction of both High Court and Supreme Court.
IV. K.C Sharma v. Delhi Stock Exchange: A Critique
Since the Court has stated that they were in agreement with the conclusions of the
Division Bench in Delhi Stock Exchange v. K.C Sharmalvii, we have to look at the
reasoning laid down by the division bench. The Division Bench had held that the
conditions formulated by the Apex Court in Ramana Dayaram Shetty v. International
Airport Authority of Indialviii were satisfied by the Delhi Stock Exchange. The Court
held that 1) there is control over the management of the Corporation by the State; 2)
the Corporation enjoys state conferred or state protected monopoly status; 3) the
functions carried out by the Corporation closely relate to the Governmental functions
in as much as a) that it is under deep rooted, all pervasive and extensive control of
the Government through the Securities Exchange Board of India under the SEBI Act,
1992 and SCRA of 1956; b) it has a complete monopoly status within the specified
territorial limits; c) it carries out important public/state functions that of completely
controlling and regulating the transactions in securities in the country.lix The
judgment of the Division Bench can be state d to be a detailed and well reasoned one.
It has simply been reaffirmed by the Supreme Court in K.C Sharma v. Delhi Stock
Exchange. In this backdrop, Aditya S. Bapatlx submits in his article that the
Judgment of the Apex Court has been wrongly decided. lxi He states that the Supreme
Court did not appreciate the effect of some of its earlier decisions especially Federal
Bank v. Sagar Thomaslxii.lxiii The Apex Court in Federal Bank was called upon to
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decide whether Federal Bank, a Private Bank is a private body or falls within the
definition of the State or local or other authorities under the control of the
Government. The Court speaking through Brijesh Kumar J, stated that the control
exercised over the Bank by the Banking Regulation Act, 1941 and the Reserve Bank of
India Act, 1934 is similar to the control exercised over the companies under the
Companies Act, 1956.lxiv It termed such powers as drastic; nonetheless they remain
regulatory in nature.lxv The Court held that these companies would usually not be
amenable to the writ jurisdiction under Article 226 of the Constitution and therefore,
Federal Bank also is not amenable to writ jurisdiction.lxviBapat argues that similar is
the position of Stock Exchanges under the Securities Contract Regulation Act, 1956
and so the Apex Court erred in holding that the Delhi Stock Exchange is a state under
Article 12.lxvii
At this juncture, it is pertinent to look at the intention of the drafters and see the
meaning they attributed to the term other authorities mentioned in Article 12. Dr.
B.R. Ambedkar while replying to Mahmoob Ali Baig Sahib Bahadur stated on 25 th
November, 1948 that:
The object of the Fundamental Rights is two-fold. First, that every citizen must be in
a position to claim those rights. Secondly, they must be binding upon every
authority- I shall presently explain what the word Authority means- upon every
authority which has got either the power to make laws or the power to have
discretion vested in it. Therefore, it is quite clear that if the Fundamental Rights are
to be clear, then they must be binding not only upon the Central Government, they
must be binding not only upon the Central Government, they must not only be
binding upon the Provincial Government, they must not only be binding upon the
Governments established in Indian States, they must also be binding upon District
Local Boards, Municipalities, even village panchayats and taluk boards, in fact, every
authority which has been created by law and which has got certain power to make
laws, to make rules, or make bye-laws.lxviii
The Registered Stock Exchanges are incorporated under the Companies Act, 1956.
The Stock Exchanges certainly have power to make rules, bye-laws and discretion is
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generally vested with them. Therefore, it is submitted that the judgment of the Apex
Court and Delhi High Court in K.C Sharmas case is in consistent with the intention
of the framers of the Constitution and it does not suffer from any fallacy. The
judgment is also in line with other judgments of the Supreme Court like Rajasthan
State Electricity Board v. Mohan Lallxix, where in the Court speaking through
Bhargava J, opined that the expression other authorities in Article 12 will thus
include all constitutional or statutory authorities on whom powers are conferred by
law.
Moreover, the tests laid down in R.D Shetty can be safely stated to be the latest law
on the issue of Article 12 as these have been reaffirmed in Pradeep Kumar Biswas v.
Union of Indialxx with an additional requirement of brooding presence of
government or deep and pervasive control.
V. Post K C Sharma Developments
In MCX Stock Exchange v. Securities and Exchange Board of India,lxxi the SEBI
noted that the Delhi High Court in National Stock Exchange of India Ltd v. Central
Information Commissioner and otherslxxii has held that a stock exchange is a public
authority as defined by Section 2(h) of the Right to Information Act, 2005 and
observed that the short point that emerges is that a stock exchange enjoys a state
conferred or state protected monopoly status; carries out important public/state
functions that of controlling and regulating the transactions in securities in the
country and is a State under Article 12 of the Constitution of India.lxxiii It then went
on to state that the realization that recognized stocks exchange is a State and is an
extended regulatory arm of the Central Government and SEBI, is reflected in the
provisions of SCRA itself.lxxiv
VI. Regulatory Role of Stock Exchanges
Stock Exchanges brings together sellers and buyers, investors and issuers and
through information distribution, informed and uninformed market participants.lxxv
What makes stock exchanges institutions with a distinctive character is that they are
both regulators and regulated entities. They are regulators because they oversee the
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market which they organize. They are regulated because they are subject to the
control and supervision of a regulator (SEBI in India).lxxvi Five important functions of
the Stock Exchange stated by Fleckner can be summarized as follows: 1) Stock
Exchanges are Market organizers; 2) Stock Exchanges are information distributors;
3) Stock Exchanges are regulators of the market which they organize. This ranges
from compliance surveillance to enforcement; 4) Stock Exchanges set standards of
corporate governance through their rules; 5) Stock Exchanges carry on business
enterprises.lxxvii The Bombay High Court also stated that Stock Exchanges provide
what is described as the first layer of oversight as in many areas stock exchanges
are self regulators.lxxviii
VII. Effect of the Demutualization of Stock Exchanges on the

Writ amenability of Stock Exchanges
Demutualization has been defined in Section 2 (ab) of the SCRA, 1956 and it means
the segregation of ownership and management from the trading rights of the
members of a recognized stock exchange in accordance with a scheme approved by
the Securities and Exchange Board of India. Section 4B provides the procedure for
corporatization and demutualization. So as a result of demutualization, the
traditional not for- profit stock exchanges into a for profit company. lxxix To put it
differently, this process of transition from "mutually-owned" association to a
company "owned by shareholders", in other words transforming the legal structure
from a mutual form to a business corporation form and privatizing the corporations
so constituted, is referred to as demutualization.lxxx
The question as to whether a private corporation, such as Sriram Fruits and Fertilizer
Industries, would come within the ambit of Article 12 was examined to some extent
keeping in view the functions discharged by this corporation, but then no definite
pronouncement was made.lxxxi The Court stated that, But we do not propose to
decide finally at the present stage whether a private corporation like Shriram
would fall within the scope and ambit of Article 12, because we have not had
sufficient time to consider and reflect on this question in depth.lxxxii From a closer
scrutiny of the judgment, and the court before declining to give a pronouncement
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had observed, It is through creative interpretation and bold innovation that the
human rights jurisprudence has been developed in our country to a remarkable
extent and this forward march of the human rights movement cannot be allowed to
be halted by unfounded apprehensions expressed by status quoists.Their
observations of the bench can safely to be stated to be inclining towards making
Shriram a state. Also, it is to be noted that R.D Shetty v. International Airport
Authoritylxxxiii, has brought public sector corporations within the scope and ambit of
Article 12 and subjected them to the discipline of fundamental rights.
VIII. Conclusion
This article started by looking into the meaning, origin and the present status of
Stock Exchanges. It then looked at the regulatory framework as applicable to Stock
Exchanges. It then examined the significance of Writs against Recognised Stock
Exchanges. It then proceeded to examine the amenability of stock exchange to writ
jurisdiction under Article 226. Subsequently, the scope of the phrase other
authorities under Article 12 was seen with respect to stock exchanges. Thisarticle
then critically examined the judgment of the Apex Court in K.C Sharma v. Delhi
Stock Exchange and otherslxxxivin light of other Apex Court Judgments and the
intentions of the drafters of the Constituent Assembly. It then looked at the
developments post K.C Sharmas Case. It then looked at the regulatory role of stock
exchanges. Finally, the effect of Demutualization on writ liability on Stock Exchanges
was examined andanalyzed.
It is to be stated that the judgment of the Apex Court and the division bench of the
Delhi High Court in K.C Sharma wherein they have held that the Delhi Stock
Exchange is covered within the ambit of other authorities under Article 12 and
therefore the jurisprudence of fundamental rights applies to it is a sound one. Post
demutualization, the above two judgments will still remain the correct law as the
basis on which the Stock Exchange was held to be a state was by applying the tests
laid down laid in R.D Shetty and Biswas and stating that the tests of various kinds of
control are applicable to the stock exchange and moreover, there is a deep and
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Volume III Issue II
pervasive control of the Central Government. These are the settled indicia on which
an entitys purview under Article 12 is to be examined.
References:

* The author graduated from National Law University Odisha with a BBA LLB (Hons) degree and is a

currently a lawyer based out of New Delhi. Author can be reached at satishpadhi007@gmail.com
i Securities Contracts (Regulation) Act, 1956, 2(j)
iiMadhubai Amathalal Gandhi v. Union of India, AIR 1961 SC 21
iiiId., p. 24
ivIbid
vId., p. 25
viGorwalla Committee, Kania Committee etc.
viiIbid
viiiSejalRikeenDalal v. The Stock Exchange, Bombay, AIR 1991 Bom 30
ix R. Jagadeesh Kumar v. P. Srinivasan, AIR 1995 Kant. 420
x A. Vaidyanathan v. Union of India, AIR 1999 Mad 11
xi Prabodh v. State of Uttar Pradesh, AIR 1985 SC 167
xiii R. Jagadeesh Kumar v. P Srinivasan, AIR 1995 Kant. 420
xiv AIR 1991 Bom 30
xv AIR 1989 SC 1607
xviId., p. 1613, para 19
xviiSecurities Contract Regulation Act, 1956, 3, 4
xviiiSupra note 16
Whether the Cochin Stock Exchange Limited, a Company registered under the Companies Act is
xix
amenable to Writ Jurisdiction?
xx AIR 1995 Ker 373
xxi AIR 1981 SC 487
xxii AIR 1979 SC 1628
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xxiiiId., p.376, para 13
xxivSupra note 15
xxvSupra note 16
xxvi See SejalRikeenDalal v. Stock Exchange, Bombay, AIR 1991 Bom 30
xxvii See Satish Nayak v. Cochin Stock Exchange, AIR 1995 Ker 373
xxviii AIR 1995 Kant. 420
xxixSupra note 21
xxxSupra note 29
xxxi Securities Contract Regulations Act, 1956
xxxiiSupra note 29 at 425, para 9
xxxiiiIbid
xxxiv AIR 1999 Mad 11
xxxvId., p. 22, para 26
xxxvi Kerala High Court, Karnataka High Court and Madras High Court
xxxvii [2000] 102 Comp Cas 300 (MP)
xxxviiiId, para 7
xxxixIbid
xl Ibid
xliSecurities Contract Regulation Act, 1956, 4
xliiSupra note 3, 8para 26
xliii AIR 1996 AP 413
xlivId., p. 434, para 34
xlv [2000]100 Comp Cas 649
xlvi AIR 1958 Bom 498
xlviiId., p. 506, para 47
xlviiiSupra note 46 at. 657, para 20
Section 3 read with section 19 of the Act states that the said exchange is recognized by the Central
xlix
Government. Section 5 empowers the Central Government to withdraw the recognition, thereby to
shut down the exchange.
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lSupra Note 15
li 98 (2002) DLT 234
liiSupra note 50
liiiSupra note 52, para 20
livIbid
lv AIR 2005 SC 2884
lviId., p. 2887, para 13
lviiSupra note 52
lviii AIR 1979 SC 1628
lixSupra note 58, para 61
lx Advocate, Bombay High Court
lxi Aditya S. Bapat, StockExchanges and their Amenability to Writ Jurisdiction, available at:
http://www.airwebworld.com/articles/index.php?article=1405 last visited on 22/3/12
lxii (2003) 10 SCC 755
lxiiiSupra note 59
lxivSupra note 60 at 755, para 25
lxvIbid
lxviId., p. 756, para 27
lxviiSupra note 59
lxviii VII, CONSTITUENT ASSEMBLY DEBATES (NOVEMBER 25, 1948), p. 610
lxix AIR 1967 SC 1857
lxx(2002) 5 SCC 111
http://www.sebi.gov.in/cmorder/MCXExchange.pdf last visited on 19/4/2012 (CORAM: DR. K.M

lxxi
ABRAHAM)
lxxiiWRIT PETITION (CIVIL) NO. 4748 OF 2007, accessed from

http://indiankanoon.org/doc/845252/ last visited on 20/4/2012 (CORAM:HON'BLE MR. JUSTICE
SANJIV KHANNA)
lxxiiiId., para 106
lxxivId., para 107
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Volume III Issue II
MCX Stock Exchange Limited v. Securities and Exchange Board of India, WRIT PETITION NO.
lxxv
213 of 2011 (CORAM: JUSTICE D.Y. CHANDRACHUD AND ANOOP V. MOHTA,JJ). See also Andreas M
Fleckner, Stock Exchanges at the Crossroads, 17 FORDHAM LAW REVIEW 213
lxxviId., para 48
lxxviiSupra note 76, para 49
lxxviiiId., para 51
Report of the Group on Corporatization and Demutualization of Stock Exchanges available at

lxxix
http://www.sebi.gov.in/circulars/2003/smdcir03.html last visited on 19/4/2012.
lxxxIbid
lxxxi M.C Mehta v. Union of India, AIR 1987 SC 1086
lxxxiiIbid
lxxxiiiSupra note 59
lxxxivSupra note 56.
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Note on Contributors
Prof. Krishan Mahajan
Professor Krishan Mahajan is Additional Registrar, Supreme Court of India. He has

been a Professor of Law at Rajiv Gandhi National Law University, Punjab and
National Law University Odisha. He is a Sterne Fellow, Columbia Law School, USA
and Fellow Japan Foundation. He has a diverse background of corporate
management from shop floor to Board of Directors in one of Indias largest multi
product manufacturing and marketing company; media, from legal correspondent
and columnist to national law editor; private and Govt. practice across almost all
areas of law spread across constitutional and district courts, tribunals ,statutory
appellate authorities in the Union Govt on SEBI, anti dumping and cooperative
banking; arbitration and Supreme Court mediation; drafting of Union Government
Bills and Notifications. Prof. Mahajan was appointed by the Supreme Court amicus
in murder appeals and for over a decade in the Taj Heritage Corridor and Ganges
Pollution Cases. He has been a Consultant to NHRC and honorary coordinator of the
National Judicial Academy Bhopal. He has contributed chapters to books and articles
to several peer reviewed law journals on constitutional, poverty, economic
environmental, international, gender justice, right to service and right to information
laws.
Dr. Afroz Alam
Dr. Afroz is teaching Political Science at MANUU, a Central University at Hyderabad.

He is a Gold Medalist in M.A. (Political Science) and Ph.D. from Aligarh Muslim
University. His doctoral thesis entitled Caste and Community in U.P.: A Study of
Electoral Politics since 1990 was acknowledged as a significant contribution to the
understanding of voting patterns in the Uttar Pradesh. He was awarded the UGC-
Junior Research Fellowship in 2001. He has also designed the course material and
written 16 course booklets for the B.A. program of the Centre of Distance Education,
A.M.U. A keen researcher, Afroz Alam has contributed more than 20 research
articles in the field of political sociology and electoral studies and 11 book reviews in
both national and international journals. He has also authored two books. He has
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Volume III Issue II
also supervised number of survey programs in Uttar Pradesh organized by the Centre
for the Study of Developing Societies (CSDS), New Delhi. He has previously served at
the Department of Political Science, A.M.U., Aligarh, as Lecturer for two years
(2005-2007). Dr. Afroz has been awarded the Shah Waliullah Award-2005 jointly
with Prof. Faizan Mustafa for the Best Essay of the Year by IOS, New Delhi.
Dr. Yogesh Pratap Singh
Dr. Yogesh Pratap Singh is an Associate Professor of Law at National Law University
Odisha and currently on deputation as Deputy Registrar, Supreme Court of India. He
earned his LLM from National Law School of India University (NLSIU), Bangalore.
His doctoral thesis Contribution of Dissenting Opinions of Indian Supreme Court
Judges to the Indian Legal System: A Critical Evaluation is acknowledged as a
significant contribution to the understanding of voting patterns of judges in the
Supreme Court of India. Dr. Singh has worked as a Legal Researcher in the Rural
Litigation and Entitlement Kendra (RLEK), Dehra Dun. He participated in the 39th
Annual Session on International Human Rights Law organized by International
Institute of Human Rights, Strasbourg, France. Dr. Yogesh has also been a part of
Ciedhu programme in France conducted for University Teachers. He was a founding
faculty of KIIT Law School, KIIT University, Bhubaneswar. He is consistently writing
in the field of law in reputed law chronicles, national, international law journals and
national dailies. He is at present credited with two books and 15 research articles.
Dr. Jasmeet Gulati
Dr. Jasmeet Gulati, is an Assistant Registrar (Research) in the Centre for Research
and Planning, Supreme Court of India, on deputation from University Institute of
Legal Studies, Punjab University, Chandigarh (India). Her qualifications include-
Ph.D (Law) from Punjab University (India), Masters of Laws (LLM) from University
of Cambridge (UK). Her other qualifications include M.A. (Public Administration),
LL.B (Professional) and B.A. (English Hons.), PG Diploma Cyber Laws, General
Course in IPRs and Management Development Program (Indian Institute of
Management, Ahmadabad).She is an online instructor for LLM with University of
Liverpool in association with Laureate Online Higher Education. She has a teaching
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Volume III Issue II
experience of more than 15 years and teaches Public International Law, Intellectual
Property Laws and Cyber Laws. Dr. Jasmeet has authored two books and many
research papers in reputed journals.
Dr. Nachiketa Mittal & Ms. Amrita Singh
First author: Dr. Nachiketa Mittal is an Assistant Professor of Law in the National
Law University Odisha (NLUO), Cuttack and presently serving as Assistant Registrar
(Research) in the Supreme Court of India on deputation. Dr. Mittal has an extensive
experience of conducting empirical studies at the grass-root in India. He has worked
with reputed NGOs in different parts of India. Dr. Mittals doctoral thesis was an
evaluation of the institutions of Gram Nyayalayas through an empirical study in the
villages of Odisha. Dr. Mittal has been an invited speaker in USA in the conferences
and lectures organised by the Northwestern University School of Law, Chicago;
Atlanta International Arbitration Society, Georgia and the University of Toledo
College of Law, Ohio. Dr. Mittal is also a visiting faculty in the Indian Law Institute,
Delhi and Pandit Deendayal Upadhyaya National Academy of Social Security,
Ministry of Labour and Employment, Government of India, New Delhi.
Second author: Ms. Amrita Singh is an independent researcher. She is an alumnus

of two national law universities and has keen interest in the areas of dispute
resolution, intellectual property law and international trade law.
Dr. Rangin Pallav Tripathy
Dr. Rangin Pallav Tripathy has been teaching at National Law University Odisha
since 2010. He completed his Ph.D from National Law University Odisha in the area
of judicial performance evaluation and statistical profiling of judges. He completed
his B.A. LL.B (Hons) from University Law College, Utkal University, Bhubaneswar
and LL.M from National Law School of India University (NLSIU), Bangalore. He has
several publications in referred journal to his credit in the area of judicial
appointments, access to justice and judicial performance evaluation, defining
misbehaviour as a ground for removal of judges, doctrine of consideration, rational
choice theory in criminal behaviour, rights of victims, rights of refugees etc. He has
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Volume III Issue II
also authored a book titled Rights Without Law dealing with the power of the
Supreme Court to implement norms of international law in its domestic jurisdiction.
He has participated in several national seminars on various topics including
surrogacy, role of Indian judiciary, judicial performance index, performance
evaluation of teachers, right to information and juvenile justice.
Mr. Parikshet Sirohi
Mr Parikshet Sirohi currently teaches at Campus Law Centre, Delhi University. He

has presented Research Papers at various seminars and workshops, and published
articles in journals of repute. He is a sought-after speaker and has delivered lectures
at several prestigious institutions in the areas of Intellectual Property Law,
Constitution Law, Competition Law, Consumer Protection Law and Criminal Law.
An avid debater and sportsman since his school days, Mr. Sirohi has authored a book
titled Interface of Design Law with Copyright Law and Trademark Law. He has also
co-edited a book titled 'A Critical Approach to the Right to Information Legislation in
India' and is pursuing his Ph.D. from Jamia Millia Islamia on the topic Food
Security Law: An Endeavour to Tackle the Problem of Hunger through Legislation.
Mr. Ayaz Ahmad
Ayaz Ahmad is Head of Glocal Law School. He completed B.A.LLB from Aligarh
Muslim University (AMU) where he secured first position in the Departmental Merit
Scholarship Test. He got his LLM from Delhi University (DU) securing first position
in his batch. His LLM dissertation is first dissertation in the country on National
Green Tribunal Act, 2010 slated to be a transformational legislation for
environmental adjudication system in India. Mr. Ayaz qualified UGC NET and JRF
in the very first attempt. Mr. Ayaz has participated in several national and
international conferences, seminars and workshops. He was selected by the
International Academy for Leadership, Germany through an On-line Seminar-cum-
Competition from amongst 100 participants from all around the world to participate
in an International Workshop in Germany. Member of Liberal Youth Forum he is
working to promoting civil liberties and individual freedom. He also provides free
legal aid to the poor and needy.
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Volume III Issue II
Mr. Arpan Acharya
Mr. Arpan Acharya is a lawyer by training and presently pursuing his PhD at
Jawaharlal Nehru University. Mr. Acharya completed his BALLB from Symbiosis
Law School, Pune. During graduation he was a keen mooter and NSS volunteer. He
then completed his Master of Laws (LL.M.) from National Law University Odisha. He
aspires to flourish in the field of academics. He has presented papers in national and
international seminars and conferences.
Mr. Satish Padhi
Mr. Satish Padhi is a graduate and gold medalist of National Law School Odisha. Mr.
Padhi has developed an expertise in the domain of commercial laws and corporate
laws having undertaken a specialization in it during his undergraduate programme.
Thereafter he has continued to practice and advise corporate clients at top notch law
firms in the country. He has managed to publish most of his work at various peer-
reviewed journals and most of his articles have been original in thought.
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B-3, VARDHMAN GREEN PARK ASHOKA GARDEN
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journal@rostrumlegal.com

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SPECIAL ISSUE

LAW REVIEW ISSN: 2321 - 3787

RostrumLegal - A Platform for Online Law Courses

Mode of Citation: RLR (2) 2016

2016. All Rights Reserved

From the Desk of Guest Editor

With much enthusiasm and pride, I present to you this issue.

Dr. Yogesh Pratap Singh

2. Decline of Parliamentary Governance: Indian Scenario (1952-2014)

3. The Endangered Institution (of Governor): Problems and Prospects

4. Constitutional Commitment to International Obligations

6. Appointment of the Judges of the High Court in Australia: A Critique

7. An Evaluation of the Working of the Right to Information Legislation in Contemporary

8. Environment Protection Authority, National Green Tribunal and Environmental

10. Writ Jurisdiction and Stock Exchanges in India

11. Note on Contributors 216

Judicial Office as Public Service:

There is a need to look at the judicial system in India on the basis of

Keywords: Judiciary, Judicial System, Public Service, Research,

The debate on the judiciary in India revolves around number of judges,

be broadly summed up as a cultural way of looking at courts and justice or court

III. Valuing Litigants Time

IV. Courts as Social Multipliers

V. Courts as Public Service Centres

VI. Ongoing Court Research & Innovation

VII. In Situ Research Units

Law Commission reports concerning the district judiciary (unfortunately called by

VIII. Law-Development-Justice Gap

IX. District Court as an Innovation Centre

X. Two Conditions Precedent

But for such re-engineering of district courts as active deliverers of constitutional

[a]. All India Lawyers Service

[b]. Right to be Informed

XI. Legislative, Administrative and Court Justice

XII. Constitutional Consumers into Market Consumers

The work will be inter-disciplinary as entitlements cover a range of disciplines and

XIII. Judicial Leadership & Careers

XIV. Law Innovation Centers & A Service Chain

Department of Justice, Ministry of Law, Government of India.

in court and another outside the court.

Decline of Parliamentary Governance: Indian Scenario

Just as government is accountable to Parliament, Parliament as the

Keywords: Parliament, Parliamentary Democracy, Constitution,

Nevertheless, a careful analysis of the parliamentary proceedings, academic writings

II. Preliminary Observations

The realistic appraisal of the working of Parliament in the post-Nehru India is

attributes to the increasing competitiveness amongst the political parties. v Even G.

Second, there is the democratic paradox of first-past-the post system which

Third, there is the aspect of digitalisation of parliamentary records and televising of

In these preliminary observations, we hope to have drawn attention to the different

III. The Extent of Parliamentary Decline

[a] Number of Parliamentary Meetings and Sitting Hours

Study by PRS Legislative Research in its vital stats named 60 Years of

Study by PRS Legislative Research in its vital stats named Parliament in

Second, as a result of fewer deliberations by the Parliamentarians, most of the work

Study by PRS Legislative Research in its vital stats named Parliament in

Third trend is speedy decline in duration of budget session in Lok Sabha.

statements of a democracy, so elected leaders should be paying attention.xviii Even

Study by PRS Legislative Research in its vital stats named Parliament in

[b] Poor Attendance of MPs in Parliamentary Sessions

Absenteeism of our parliamentarians during the sessions is another major challenge

Second, age-wise analysis indicates, questionably, the similar stories. Absenteeism

He also communicated to the Prime Minister Singh in writing asking that no

[c] Poor Participation by MPs in Parliamentary Debates