3 thoughts on “156. Judicial Control of Administration 4

  1. 1. Suo moto is a plenary and a residuary power exercisable outside the purview of ordinary law to meet the demand of justice. This power is given by the Constitution under article 136. The Supreme Court can exercise this power when the compelling grounds for its existence exist. When there is manifest injustice, apparent irregularity and situations which cannot be effectively tackled by the existing provisions of the law, suo moto can be exercised. Injustice or irregularity can be in the form of orders passed by High Court or any issue happening in public which is unlawful.

    2. A writ is an order or directions by the Supreme Court to protect the Fundamental Rights of the people. If a Fundamental Right of a Citizen has been encroached upon, he can move the Supreme Court and the Court issues a writ to regain his Fundamental Rights back. Article 32 of the Constitution i.e. Right to Constitutional Remedies deals with enforcing Fundamental Rights (writs). Hence Article 32 is itself a Fundamental Right. The writs issued by the SC are Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto.

    3. If an act of the Executive is against the law and if the laws passed by the Parliament and State Legislatures is against the Constitution, the Supreme Court considers these actions to be Ultra Vires or unconstitutional. It strikes down the law and acts of the Executive and upholds the Constitution. This power of the SC is known as Judicial Review. However SC cannot pass orders unless someone has filed a case on such unconstitutional activities. If the case is severe then SC can exercise suo moto.

    4. In USA the three organs of the Government are independent of each other. The Judiciary would not involve itself even if the laws passed by the Congress are against the Constitution as it considers the Congress to be Supreme. For the first time power of Judicial Review was exercised in the case of Marbury Vs Madison by the Supreme Court of United States. This case was a landmark in the SC of United States as this decision helped define the boundary between the separate Executive and Judicial branches of American form of Government.

  2. 1) In Suo Moto, a judge acts without request by either party to the action before the court. Court can act suo moto when the existing provisions of the law cannot be used in a case.

    2) Article 32 of the Constitution of india, 1950 guarantees the right
    to move the Supreme Court for enforcement of fundamental rights. Supreme Court has power to issue directions or orders or writs including the writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari, whichever may be appropriate, for enforcement of these rights.

    3) The object clause of the Memorandum of the company contains the object for which the company is formed. An act of the company must not be beyond the objects clause, otherwise it will be ultra vires and, therefore, void and cannot be ratified even if all the members wish to ratify it. This is called the doctrine of ultra vires. When the companies go beyond the objects clause, supreme court can resort to this power.

    4) Marbury v. Madison was one of the most important cases in US Supreme Court history, was the first case to apply the principle of “judicial review” — the power of federal courts to void acts of Congress in conflict with the Constitution. Written in 1803 by Chief Justice John Marshall, the decision played a key role in making the Supreme Court a separate branch of government on par with Congress and the executive.

    5) Public Interest Litigation (PIL) is a judicial proceeding taken up by the courts in order to protect public interest or address public grievance when fundamental rights or constitutional law enforcement are at stake. Any citizen regardless of his relationship with the victim, can file a PIL in the Supreme Court under Art 32, or in the .High Court under Art 226 of Indian Constitution

    6) When a public servant has misinterpreted the law and may impose upon the citizen duties and obligrations which are not required by law, the citizen has the right to approach the court for damages. This is Error of Law. In Error of fact finding, the official has erred in discovering facts based on which he has acted. This may affect the citizen adversely and so there may be a ground for bringing a case in a court of law. In Error of Procedure, when the public officials don’t follow the prescribed procedure laid down by law, the courts have the right to question the legality of their action.

    7) A court has jurisdiction over a matter only to the extent granted by the Constitution and the legislature of the state in which the court is located. There is Lack of jurisdiction when this conditions are not met.
    Abuse of authority is the improper use of authority by someone who has that authority because he or she holds a public office.

    9) In India, Section 197 of the Code of Criminal Procedure, 1973 gives protection to a person who is still a Public Servant at the time the prosecution is launched, and also when he is no longer a public servant. This is to protect the Public Servant from a case being filed against him after his retirement. When the government servant or the employee is not removable from his office without the sanction of the Central Government, then the same is necessary. Sanction under this section is not necessary before a Public Servant could be prosecuted for an offence of bribery under Section 161 of the Indian Penal Code, 1860.

  3. 6. Judiciary cannot intervene in the matters of administration on its own accord unless invited to do so by any person who’s Fundamental or other essential Rights have been violated. Judiciary cannot interfere in each and every matters of administration, as too much interference will make bureaucrats over conscious. At the same time too little interference will make the bureaucrats negligent and ignore the welfare of the citizens. Hence Judiciary must follow a middle path. On this point, Prof. L.D. White remarks, “At one extreme, the vigour of judicial control may paralyse effective administration, at the other, the result may be an offensive bureaucratic tyranny”.

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