This blog originated in the felt need to ponder where it is found that Indian
Public authorities are fascinated to interprete laws to their convenience and
logic and issue notices as they deem fit, completely devoid of spirit of the
enacted laws.
In modern democracies, wide powers
vest with Legislators, Judges, with Govt, and with Bureaucrats. Each group, if
it so wishes, may act quite fancy, in any or all the ways thus far specified
hereinafter. Nevertheless, the authorities in charge may be disproportionately
rude if you happen to be in even irrelevant shortcoming. The Scent of power is
immense.
The Public Servants / Officials
were deemed heard, saying, in the words of learned Professor Upendra Baxi-
(1)As an Authority of Public Power,
I have this and that power. I exercise it in this or that manner because I so
wish. The only good reason which I exercise my power this or that manner is
that I wish to exercise it in this or that manner;
(2) As an Authority of Public
Power- I may so act as to favour some and disfavour others;
(3) As an Authority of Public
Power- I may so act as to give an impression that I am acting within my powers
but in reality I may be acting outside it;
(4) As an Authority of Public
Power- I may decide by myself what your rights and liabilities are without
giving you any chance to be heard, Or I may make your opportunity to be heard a
meaningless ritual;
(5) As an Authority of Public
Power- I may decide but declines to let you know the reasons or grounds of my
decisions or provide reasons without being reasonable;
(6) As an Authority of Public
Power- I may use my power to help you only if I am gratified in cash or in
kind;
(7) As an Authority of Public
Power- I may choose to use my power only after a good deal of delay and
inconvenience to people;
(8) As an Authority of Public
Power- I may just refuse to exercise the powers I have regardless of my legal
obligation to act and regardless of social impact of my inaction.
Also, I am given to understand
that, all Writs that are filed before High Courts’, 70% of it constitutes the
illegal notices that are challenged, so issued by army of public authorities in
India, in the pretence of their implied and undefined discretionary powers.
The Supreme Court of India in
Nawabkhan Abbaskhan v State of Gujrat allows every person the discretion to make his own
decision and disobey the order of the government, if in his opinion, it is
illegal. Of course he is answerable and liable, if he turns out to be wrong.
(1974) 2 SCC 121; AIR 1974SC 1471.
This is how the above proposition
came to establish in our land--
(1) An externment order was passed
against one person. He refused to obey that order.
(2) He was prosecuted under section
142 of the Bombay Police Act 1951 because he had violated the externment order
passed by the Police commissioner.
(3) He was acquitted by lower
court.
(4) The State went into appeal to
High court. The accused challenged the validity of the externment order itself.
The High court posed a question to itself- “Whether a person can disobey the
order with impunity which he thinks is illegal although the order subsequently
may have been quashed for being illegal”.
(5) This is what High court said-
“There is no principle in upholding the Respondent's (accused) claim that he
has a right to violate an order passed by an authority having jurisdiction to
pass it, although subsequently he can persuade the court that there was an
inbuilt lacuna or latent defect in the said order. In other words he claims to
have a right to judge for himself whether it is legal or illegal and in
anticipation of court upholding his contention, the right to violate it with
impunity.”
(6) The accused went into appeal to
Supreme Court. The Supreme Court reversed the order of the High court and said-
“The individual decision making by private persons of public actions may be
considered as a very radical approach. Grave consequences are involved in
allowing discretion to disobey, someone may argue, may first lead to anarchy
and then to tyranny. But what is the remedy available to a person who has been
subjected to an illegal order. Our legal system does not recognize the right to
compensation for damage suffered by a person in obeying an invalid order.
Thus the Supreme Court allows every
person the discretion to make his own decision and disobey the order of the
government, if in his opinion, it is illegal order. Of course he is answerable
and liable, if he turns out to be wrong.
However, today any talk about
discretion to disobey may sound seditious. In India where judicial process grinds dead slow and grievance
procedures are feeble and inefficient, perhaps the discretion to disobey may
provide an effective check on the operation of the government machinery in a
reckless manner.
There can be many different
legitimate ways of dealing with served illegal Orders/ Notices. In my limited
knowledge as on today, there can be two ways to deal with those illegal Orders
/ Notices.
ONE- The one who is served a Order
/ Notice, which he thinks as patently illegal, should in the first place, make
a suitable Written representation before that issuing authority. If the
authority refuses to relent / listen, then, should file a Writ Petition in the
High Court concerned under Article 226, not for quashing of that Order /
Notice, but for directing the public authority concerned to pass appropriate
speaking Order on the basis of Written representation made to that authority.
The Orders passed by Public authorities, generally termed as administrative
Orders, though are not judicial Orders, yet, the Public authorities are bound
to listen to the affected persons where it seeks to interfere with the rights
of the persons / or when Orders / Notices entails “Civil consequenes” and they
are bound to assign reasons for their decisions.
TWO- The one who is served a Order
/ Notice, which he thinks as patently illegal, should file a Writ Petition in
the High Court concerned under Article 226, asking the Hon'ble Court to dwell
upon the limited issue of interpretation of that law, in the exercise of which
the illegal Order / Notice was issued and asking the Hon'ble Court to settle
the position of law, so that all litigation in respect of that law, that may
arise in future, may be avoided. And once the Court ventures to settle the
position of law, you win. The relief you get of quashing of that impugned
notice is consequent and automatic of that settling of that law. Therefore, it
is quite important to frame appropriate question of law that may be posed
before the presiding Judge to dwell upon and adjudicate thus.
It is not desirable to seek
directly the quashing of order, in my view. There can be two reasons for not
directly asking this Relief before the Hon'ble Court . One- the High Court may refuse to exercise its
extra-ordinary jurisdiction under Writ, and may in certain cases, say, you have
alternate remedy and remedy under Writ is yet to crystallize. Second- it is
quite likely, I feel that, unless the Petitioner specifically ask the Hon’ble
Court to decide the question of law involved, the Hon'ble High Court may
venture to refuse to give you any relief, even without dwelling upon the letter
& spirit of law under scrutiny.
There is, I think, fundamental
difference between asking the High Court to quash the illegal notice or asking
the High Court to settle the position of law. The High Court may refuse to
exercise its jurisdiction in the former case, but it cannot refuse to exercise
its jurisdiction in the latter, for it is the prerogative of the High Court to
settle the law.
And I tell you, in Writ cases, in
my strong view, if you succeed in satisfying the Court about jurisdiction, you
have won half the battle.
In a case before it, the Hon’ble SC has said – Show Cause
Notice – Must be issued with open mind – vitiate entire proceedings – Breach of
Article 14 – 2011 (1) AIR Bom R 626 – Paras – 25, 28, 29, 36, 38, 39, 42, 44 –
SLP (C) No. 27615/2008 – Judg date: 29.10.2010.
However, there may be cases where the aggrieved person may
not have immediate access to High Court; and also the fee of lawyers practicing
in the High Court are generally high; and in such circumstances, the aggrieved
may approach the District Court and may file a Suit for Injunction and obtain
the necessary relief.
Sandeep Jalan
(advocate)
Legal issues !!
If you are facing any of these issues like (a) Recovery of Moneys (b) Immovable property disputes (c) grievances against Municipalities & Govts., including challenge to legitimacy of laws etc. (d) grievances against illegalities and highhandedness of Police like illegal arrests, refusal to register FIR, deliberately flawed investigations, etc (e) False FIRs (f) False Claims (g) False evidences (h) Grievances against Judges (i) Illegal or perverse Orders of the Courts / Tribunals, among others.
or
If you are looking for draft of any legal proceeding; or if you want to know the nature and attribute of any legal proceeding; or if you want to know the procedure followed in any legal proceeding; or if you want to know the grounds on which any order of the court / tribunal is challenged; or if you are facing any frivolous litigation.
Sandeep
Jalan
Advocate
Law
Referencer: https://www.litigationplatform.com/
Thank you.
Comments
I just wanted to know whether the Supreme Court can punish the State government for Contempt of Court as per Article 129 of the Constitution of India.
The best example is the Shivaji Book Banning case where the State of Maharashtra has disregarded the Apex Court's ruling and have decided to pass a Bill to protect their interests.
This thought process deserves to be propagated. A large number of Indians should think along these lines.
REgards,
Krish
Thanks