International Journal of Multidisciplinary Approach and Studies Judiciary: A Ladder between Inevitable Administrative Discretion and Good Governance (original) (raw)
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Administrative Discretion and Judicial Review: Dimensions in India
isara solutions, 2020
A phenomenon generally discernible in democratic countries is the vesting of large discretions in the hands of administrative authorities under the impact of modern philosophy of welfare state as well as that of emergency situations. The basic principle of modern administrative process is the conferment of large discretionary powers on the administration to be exercised according to its subjective satisfaction, without relevant legislation laying down clearly the conditions and circumstances subject to which, and the norms with reference to which the executive is to exercise the powers conferred.
RULE OF LAW AND GOOD GOVERNANCE IN INDIA
This paper makes an effort to provide an outline of the Dicey’s Rule of Law and concept of Good Governance. The paper intends to locate the principle of Rule of Law in the Indian Constitution and the manner it is followed and implemented in the public institutions. The paper focuses upon the evolution of good governance in India by identifying its essential features in its working and emphasizes need for innovative approaches. No theory of governance could be intelligible unless it is seen in the context of its time. India’s democratic experience of the past seven decades has clearly established that good governance must aim at expansion of social opportunities and removal of poverty. Good governance, according to the author, means securing justice, liberty, rule of law, empowerment, employment and efficient delivery of services. The paper deals with the concept of Rule of Law and its role in establishing Good Governance throughout the country. This paper also makes an effort to highlight the attempts made by the Indian Judiciary to promote Rule of Law and Good Governance through her valuable and significant judicial pronouncements.
The uneasy relationship between the executive and judicial organs is not new. The souring relationship dates back to the colonial period. It augmented in the post-independence era and continued in the unending manner. The executive enacts the law and amends the Constitution and sometimes it faces resistance from the judiciary for such acts. On the contrary, the Judiciary is criticised for overstepping its limits and excess interference in the executive functions. It has been happening since the promulgation of the Constitution. Contextualising this, this submission attempted to analyse the relations between the two organs of the government. The paper examined the relationship in the pre-independent era and post independent India citing the reference of land marks cases. This submission highlighted the divergent stands of executive and judiciary on the issue of the recruitment, superannuation, transfer, promotion of the judges and pendency of cases in the courts. All have been examined in the national and state context. Policy guidelines for both the executive and judiciary were issued towards the end of the paper. The paper added new perspectives to the executive and judicial functionaries, which shall influence their relations. It evaluated the executive action and judicial judgments by analysing the Constitutional Law, Case Law, public records, media reports and secondary information. It proposes ways to improve the balance between judiciary and executive.
Judicial Conduct Regulation in India
Indian Law Review, 2022
In India, judicial discipline is exclusively enforced by the judiciary through in-house mechanisms, except for the constitutional removal procedure. The founding justification for in-house mechanisms is that they are indispensable to uphold judicial independence. In this milieu, the paper attempts to answer the following question: do in-house mechanisms in India uphold judicial independence and effectively enforce judicial conduct? The study, by analysing quantitative and qualitative data from 110 subject experts (judges, lawyers, and academics), offers an initial assessment of the implications of in-house mechanisms on judicial independence and judicial conduct regulation in India. The study lays special emphasis on the efficacy of in-house mechanisms in upholding “individual” and “internal” judicial independence. It also assesses the effectiveness of in-house mechanisms in enforcing judicial conduct. It concludes that in-house mechanisms, for both higher and subordinate judiciary, undermine individual and internal judicial independence. They are also ineffective in enforcing judicial conduct.
Indian Law Review, 2018
In Krishna Kumar Singh v. State of Bihar, the Supreme Court of India (SCI) considered the legality and repercussions of a series of re-promulgated ordinances by the Governor of Bihar. I critically analyse the judgement on four counts: conditions for valid promulgation of an ordinance, the survival of actions under failed ordinances, justiciability of executive satisfaction over necessity of promulgating an ordinance, and legality of re-promulgating ordinances. I suggest that while the SCI authoritatively establishes the conditions for valid promulgation of an ordinance, its holding on the legality of re-promulgation and the survival of actions under failed ordinances are not adequately narrow to prevent the possibility of abuse by the executive. Further, the Court’s unwillingness to apply a more searching standard of review for executive satisfaction when promulgating ordinances also does little to advance its existing jurisprudence and may prove to be unhelpful in deciding future cases where the existence of emergent conditions is in question.
ADMINISTRATIVE ACTIONS IN INDIA AND DOCTRINE OF PROPORTIONALITY Vis-a-Vis THE COMMON MAN
Paripex Indian Journal Of Research, 2021
In India, the post independence period has witnessed a tremendous growth in administration, because it was ushered into a welfare state. But unfortunately, the administration may become authoritative, trampling the civil liberties of the people. Doctrine of Proportionality is the latest recruit for checking the abuse of exercise of administrative power.The article explores the effectivity of the doctrine and its need for application in cases of different types to fulfill the growing needs of justice,
CASCADING ROLE OF GOVERNANCE IN ENSURING JUDICIAL ACTIVISM IN INDIA
Bihar Journal of Public Administration, UGC CARE, ISSN 0974-2735, 2022
It is crucial that all three branches of government work in unison if the country is to advance. But the situation today is worrying. The legislature and the executive either struggle to carry out their responsibilities with the utmost earnestness or try to dodge them. Therefore, the judiciary, the third organ, is the only one left to use judicial activism to address the complaints of the public. There has been activist approach by the judiciary especially for the disadvantaged or downtrodden sections of the society. It has delivered justice to the people keeping in its mind the limitations mentioned in our Indian Constitution. On the other hand, the judges may have crossed the line and forgotten what was acceptable. According to Montesquieu's "separation of powers" philosophy, there should be no crossing of boundaries. However, the judicial inventiveness that hasn't been focused on and used by the other machinery is what the public see and view as the judiciary overstepping the other organs.
RULE OF LAW IN INDIA-A JUDICIAL PERSPECTIVE
Dicey 1 said: "It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else. It means, again, equality before the law, or the equal subjection of all classes to the ordinary law courts; the 'rule of law' in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals; there can be with us nothing really corresponding to the 'administrative law' (droit administratif) or the 'administrative tribunals' (tribunaux administratifs) of France. The notion which lies at the bottom of the 'administrative law' known to foreign countries is, that affairs or disputes in which the Government or its servants are concerned are beyond the sphere of the civil courts and must be dealt with by special and more or less official bodies. This idea is utterly unknown to the law of England, and indeed is fundamentally inconsistent with our traditions and customs.
European Journal of Law and Politics
The structure of Indian Judiciary is very similar to the common law British structure and it was designed to be exploitative in nature. It being a power institution that constitutes a part of the modern state, Indian Judiciary not only exercises authority over all of India it is also at the same time a democratic institution. The structure of the colonial euro-centric institutions is such that the locus and focus of responsibility can never be realised at the same time and at the same place. This naturally creates the paradox in institutional responsibility which is a natural consequence of irrational bureaucratic structure within the institution of judiciary. The first half of this paper starts critically reviewing the problems facing the Judiciary in India from the point of view of its euro-centric structure and the various malaise that this irrational structure results into. In the second half the paper reviews and recommends the application of New maanagerial philosophies to the structural aspects of Indian Judiciary with the aim of structurally rationalising it.
Rule of Law: A Far Cry in Indian Democracy
SOCIAL SCIENCE AND RESEARCH, 2013
Abstract: India is a great democratic state and the UPA-2 is trying to establish Rule of Law by providing socio-economic and political justice to its citizen and also actively helping to ensure equality, liberty and human dignity. Now days the Right to Information Act and the cyber technology are trying to establish the Rule of Law in India. Rule of Law which is Supremacy of Law, Equality before Law and the Predominance of Legal Spirit is the basic pillar of the British Constitution propounded by Prof. Dicey to protect the citizen from the arbitrary power of the state. Supremacy of law, according to Dicey, the Englishmen are ruled by the law and the law alone. A man may be punished for a breach of law, but can be punished for nothing else. Equality before law means subjection of all classes to the ordinary law of the land administered by ordinary law court. This means that no one is above law. Predominance of legal spirit means that the source of the right of individual is not the written constitution but the rules as defined and enforced by the courts. Keywords: The Concept of Rule of Law, Rule of Law in India, A Cry For Rule of Law In Indian Democracy, Question Mark on Independent Judiciary, Judicial Corruption, Caste Base Reservation Against The Notion of Secularism Within Rule of Law, Corruption or Horse Trading in Parliament, Fake Encounter and Violatio