Friday, May 28, 2010

How to deal with illegal Orders / Notices of Indian Public authorities

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
Mumbai- 400057.


Ravindran said...

Thank you, Adv Sandeep for these very useful info you are communicating through your blogs. Even in the army I used to refuse to obey orders which in my view were illegal. My approach was to just ask the authority to give the order in writing and sure as hell nobody would give it if it was illegal.

Sandeep Jalan said...

you know... our courts give in writing too....

captainjohann said...

Who decides the ILLEGALITY of the government order?

J. P. SHAH said...

Thanks for such blogs.

Arpita said...

This article is superb!!
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.

Sahasi Padyatri said...

This is very good indeed! Kudos!

This thought process deserves to be propagated. A large number of Indians should think along these lines.


captain chagla said...

eain india the current government of any state, gives a hang-to-legal/illegallity as judge's just talks in a court,really 99.999corrupt politicians/powerful companys use jungle-warfare;the educated persons are just doing bla bla or rather poetry !and in debate's, rightfully the wrong must get a cane (as in/was singapore)=regards/capt.s.chagla

Alok Tholiya said...

Suberb and very useful.