Abstract

In the paper, the author dwells upon the enforceability of the administrative direction in the Indian courts. Administrative directions have remained an important tool in the hands of the executive to fill up the gaps present in the law. However, Indian court has taken a varied stance with respect to the enforcement of such directions. The paper discusses the benefits of administrative directions in the present legal system, and analyse various judgments to gain an insight on the enforceability of these directions. While doing so, a timeline is drawn which shows the position taken by the court with respect to issues arising from administrative directions. In the end, a conclusion is drawn highlighting the positive approach of the Indian courts towards the enforceability of administrative directions. 

Keywords: Administrative directions, Administrative law, Executive, Enforceability, Indian judiciary.

Introduction

The administrative direction in an essence is a power given to the executive to fill in the gaps prevalent in the existing law. The objective is to prevent arbitrary exercise of power. Mostly, a higher authority issues it to a subordinate authority or to the public to inform them about the change in the policy decisions. However, it always lacks statutory backing. It is in the sense that no statutory authority is required for the executives to give a valid administrative direction. The power to issue directions flows from the general administrative powers under Articles 73 and Article 162 of the Indian Constitution. The instructions/directions issued can vary from being binding or directory and generic or specific in nature. It all depends on the source of the power from where it has been conferred which determines the nature of these instructions. However, in most cases, they do not create a right or impose an obligation against any person or the administrator because of which they are unenforceable in the Courts. Administrative directions are generally issued through a Circular, letter, Memo, Public notices, Pamphlets, press notices, and notification in the government gazettes. Now, one of the issues existing in the administrative directions is that a specific direction issued even without statutory backing is mandatorily followed by the administrative officers. It happens because unfollowing can always lead to disciplinary actions against them. But it is important to note that such directions can never be granted protection or enforced by the judicature.

Need for Administrative Direction

This concept of issuing an administrative direction is a modern function of the executive. However, it has been preferred by them in certain situations. Sometimes, administrators prefer to use direction over statutory rule to save them from the hassle which is caused while enforcing the latter like laying before parliament for approval, publishing in the official gazette, etc. The fact that these directions are not rigid, it a great way for the administrator to use this flexibility on time when any new problems arise in any law affecting a lot of people, and prompt action is required by them which can be fluid and changed at a later stage. Using directions as a prompt action at times when the situation is new leads to gain in experience which can be used later while making the statutory rules.  At the time of temporary usage, administrative directions are better than rules as through the former creating an administrative guideline will provide a quick, easy solution to the public affected by it.  The Supreme Court in the case of P.H. Paul Manoj Pandian v. P. Veldurai has talked about the legal importance of the Administrative Direction at length.

Can Administrative directions be held enforceable in the Court?

The Indian Judicial system has always taken a contrary stance on the issue of when can an Administrative direction be held enforceable. Judges in different cases have provided different reasons leading altogether to confusion for the general public. However, one of the important factors considered by them while giving their judgments was whether the particular administrative direction had statutory backing or not and in cases of no statutory backing if it is going against the already existing rules or not. In the case of Delux Land Organisers V. State directions were issued by the central government under the Urban Land (Ceiling and Regulation) Act, 1976 and they were held valid. In State of Punjab & Anr. v. Hari Krishan Sharma the directions issued were not backed by any statutory rule. So, it was held that no direction can be issued. Both these cases are an example of the relevance of statutory backing. 

In G.J. Fernandez v. State of Mysore, there was no statutory backing making the directions issued unenforceable in the court. However, one interesting thing, in this case, was a violation of these directions by the administrator leads to disciplinary action. A similar view was also taken by the court in the case of Chief Commercial Manager, South Central Railways, Secundrabad v. G. Ratnam where not following the administrative direction exposed the investigating officer to disciplinary action. An interesting stance was taken by the court in Raman and Raman Ltd. v. State of Madras where it was held that the direction issued under Section 43-A of the Motor Vehicles Act, 1929 lacked the force of law. 

Usually, this was not the case, but this specific judgement shifted the focus from the statutory backing to other factors like the context, object, occasion of the issuance of instruction, etc. The judgment amplified the portfolio for future judgments deciding on the enforceability of the administrative direction. The Indian Judiciary also created confusion with respect to whether the administrative direction can supersede the statutory rules or can only supplement them. One of the prime examples is the case of Jagjit Singh v. State of Punjab where the Supreme Court held that administrative directions when do not go against the statutory rules become both binding and enforceable. However, a contrary stance was taken by the court in the case of Amitabh Shrivastava v. State of Madhya Pradesh where the administrative instructions modified the statutory rights but were still held enforceable through the court and the justification for this was that the government who made the rules never contended the enforceability of such administrative direction in this case. This is an incorrect interpretation as it clearly shows bias on the part of the government for a specific individual and the court rather than doing their job of keeping a check on the actions of the legislatures rendered an unjust decision. The whole reasoning was based on the strict interpretation of law where the judiciary recognizing the separation of power did not step in between the working of the legislatures. However, as an aftermath, the Supreme Court finally in the case of C.L. Verma v. State of M.P. cleared the confusion created by them and held that administrative direction cannot go against the statutory provisions. 

The current situation on this can be explained through the case of Mahadeo Bhau Khilare v. State of Maharashtra where the Court held any scheme formulated by the administrative direction against the statutory regulations cannot be sustained. Apart from the presence of statutory backing, there are other factors on which the enforceability of the administrative directions depends. Like in the case of Union of India v. K.P. Joseph it was held that because the direction contained assurances based on which the third party acted, it created justiciable right. In B.S. Minhas vs Indian Statistical Institute the court held that the bye-laws in this case which were administrative directions will be enforceable and followed as they avoid arbitrariness and promote fair play. In State of Uttar Pradesh v. Chandra Mohan it was held that when the administrative directions fill the gap in the provisions, they become binding in nature. A similar view was taken by the Court in State of Gujarat v. Akhilesh C. Bhargav & Ors and Sant Ram Sharma v. State of Rajasthan that when the rules are silent on a point then the government can use administrative directions to fill up the gaps and supplement the rules.

Conclusion

From the above discussion, it can be determined that the concept of administrative direction even when is relatively new but is an important function of the executive. The judiciary always had a contrary stance on which administrative directions are enforceable in the court of law. Theoretically, it is not supposed to create a right or impose an obligation on any individual but in some cases court has held it to be enforceable depending on different factors. It seems very discretionary of the judges to allow the direction enforceable in some cases, but this discretion cannot be made into proper guidance as the enforceability of the administrative direction should always be decided on the case-to-case basis. However, while analysing the case laws there are some instances where the judiciary has always taken a stance in the favour of administrative direction like when it fills the gap, promotes fair play, creates a right, etc.

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Introduction

Rule of law is classical principle of administrative law. As a matter of fact this principle was one of the principles that acted as impediment development of Administrative Law principles. The irony further is that the rule of law is now an important part of modern Administrative Law. Whereas the rule of law is still the one of the very important principles regulating in common law countries and common law derived countries modern laws has denied some of the important parts of rule of law as proposed by Dicey at the start of 19th Century.

Dicey defined rule of Law as the “absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of prerogatives or even wide discretionary power on the part of government”. Dicey asserted that wherever there is discretion, there is room for arbitrariness which leads to legal insecurity of citizens.

Other aspect of Dicey’s Rule of Law is equality before law or equal subjection of ordinary law to all class of people by ordinary court. Whereas he asserted that the French Droit Administratif is a bad law where there are separate tribunals for different matters, he further insisted that England hadn’t any of similar or same system existed. 

The later view of Dicey about the equality and dominance of law over arbitrariness set standard of most civilized Constitutions of world. However, the later views on droit administrative impaired the development of Administrative law at very early stage where it required a support. The Administrative Law was, for almost all the time, including Dicey’s dominion, was present, but, was never recognized as it should have been for a neat and satisfactory development in common law countries. 

The presence of Administrative Law and its inevitable nature is clear by the recognition of some of the scholar’s contemporary to Dicey. Maitland was one of those scholars who have recognized the presence of Administrative Law in England. It is also evident that the presence of Administrative Law was substantial but was ignored by Dicey in his early era.

The famous case of Board of Education v. Rice and Local Government Board v. Arlidge affirmed the practice of Administrative Law in England. It is evident that it is after this case that Dicey realized the presence of Administrative Law in a positive form. He however maintained that the presence of Droit Administratif in England is no body’s case and that rule of law must be preserved. 

The rule of law, as propounded by Dicey has its own advantages and disadvantages. Apart from setting the base for all common law country, it has also provided the base for Administrative law principles are set. It is a method by executive in general and government in particular is kept in control against the misuse of wide power vested in them.

It also eliminates unreasoned discretion, bias and arbitrariness in governance that emanates from wide power of executive. Moreover, the rule of law gives supremacy of Courts over all other functionaries of State. This leads to the further curbing where government can’t be judge in his own cause. 

Dicey’s submission of rule of law has its disadvantages as well. Where the Dicey’s rule of law eliminated presence of arbitrary power in government, it also eliminated the “wide discretionary” power from the government. The protest of Dicey in presence of wide discretionary power in government would lead to the failure of policies and implementation of law as required apart from bad assessment before the formulation of policy. The biggest mistrust being the efficacy of judiciary in managing affairs of the state in the Dicey’s Rule of Law.

Development of Rule of Law in India

Fundamental rights enshrined in part III of the constitution is a restriction on the law making power of the Indian Parliament. It includes freedom of speech, expression, association, movement, residence, property, profession and personal liberty. In its broader sense the Constitution itself prescribes the basic legal system of the country. To guarantee and promote fundamental rights and freedoms of the citizens and the respect for the principles of the democratic State based on rule of law. The popular habeas corpus case, ADM Jabalpur v. Shivakant Shukla is one of the most important cases when it comes to rule of law. In this case, the question before the court was ‘whether there was any rule of law in India apart from Article 21’.

This was in context of suspension of enforcement of Articles 14, 21 and 22 during the proclamation of an emergency. The answer of the majority of the bench was in negative for the question of law. However Justice H.R. Khanna dissented from the majority opinion and observed that “Even in absence of Article 21 in the Constitution, the state has got no power to deprive a person of his life and liberty without the authority of law. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning…”                                                                                

The secondary meaning of rule of law is that the government should be conducted within a framework of recognized rules and principles which restrict discretionary powers. The Supreme Court observed in Som Raj v. State of Haryana that the absence of arbitrary power is the primary postulate of Rule of Law upon which the whole constitutional edifice is dependant. Discretion being exercised without any rule is a concept which is antithesis of the concept.

The third meaning of rule of law highlights the independence of the judiciary and the supremacy of courts. It is rightly reiterated by the Supreme Court in the case Union of India v. Raghubir Singh that it is not a matter of doubt that a considerable degree that governs the lives of the people and regulates the State functions flows from the decision of the superior courts.

Although, complete absence of discretionary powers, or absence of inequality are not possible in this administrative age, yet the concept of rule of law has been developed and is prevalent in common law countries such as India. The rule of law has provided a sort of touchstone to judge and test the administrative law prevailing in the country at a given time. Rule of law, traditionally denotes the absence of arbitrary powers, and hence one can denounce the increase of arbitrary or discretionary powers of the administration and advocate controlling it through procedures and other means.

Rule of law for that matter is also associated with supremacy of courts. Therefore, in the ultimate analysis, courts should have the power to control the administrative action and any overt diminution of that power is to be criticized. The principle implicit in the rule of law that the executive must act under the law and not by its own fiat is still a cardinal principle of the common law system, which is being followed by India.

In the common law system the executive is regarded as not having any inherent powers of its own, but all its powers flow and emanate from the law. It is one of the vital principles playing an important role in democratic countries like India. There is a thin line between judicial review and judicial activism.

Rule of law serves as the basis of judicial review of administrative action. The judiciary sees to it that the executive keeps itself within the limits of law and does not overstep the same. Thus, judicial activism is kept into check. However there are instances in India where judiciary has tried to infringe upon the territory of the executive and the legislature.

A recent example of this would be the present reservation scenario for the other backward classes. The judiciary propagated that the creamy layer should be excluded from the benefits of the reservation policy, whereas the legislature and the executive were against it.

As mentioned before Dicey’s theory of rule of law has been adopted and incorporated in the Indian Constitution. The three arms judiciary, legislature and executive work in accordance with each other. The public can approach the high court’s as well as the Supreme Court in case of violation of their fundamental rights.

If the power with the executive or the legislature is abused in any sorts, its malafide action can be quashed by the ordinary courts of law. This can be said so since it becomes an opposition to the due process of law. Rule of law also implies a certain procedure of law to be followed. Anything out of the purview of the relevant law can be termed as ultra vires.

No person shall be deprived of his life or personal liberties except according to procedure established by law or of his property save by authority of law. The government officials and the government itself is not above the law. In India the concept is that of equality before the law and equal protection of laws. Any legal wrong committed by any person would be punished in a similar pattern. The law adjudicated in the ordinary courts of law applies to all the people with equal force and bidingness. In public service also the doctrine of equality is accepted. The suits for breach of contract etc against the state government officials, public servants can be filed in the ordinary courts of law by the public.

In Chief settlement Commr Punjab v. Om Prakash, it was observed by the supreme court that, “In our constitutional system, the central and most characteristic feature is the concept of rule of law which means, in the present context, the authority of law courts to test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the matter into notice.”

In India, the meaning of rule of law has been much expanded. It is regarded as a part of the basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by Parliament. The ideals of constitution; liberty, equality and fraternity have been enshrined in the preamble. Constitution makes the supreme law of the land and every law enacted should be in conformity to it. Any violation makes the law ultra vires. In Kesavanda Bharti vs. State of Kerala the Supreme Court enunciated the rule of law as one of the most important aspects  of the doctrine of basic structure.

In Menaka Gandhi vs. Union of India The Supreme Court declared that Article 14 strikes against arbitrariness. In Indira Gandhi Nehru vs. Raj Narain Article 329-A was inserted in the Constitution under 39th amendment, which provided certain immunities to the election of office of Prime Minister from judicial review. The Supreme Court declared Article 329-A as invalid since it abridges the basic structure of the Constitution.

In Secretary, State of Karnataka and Ors. vs. Umadevi and Ors a Constitution Bench of this Court has laid down the law in the following terms “Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution.”

Moreover, In the case of Bachan Singh vs. state of punjab Singh Justice Bhagwati has emphasized that rule of law excludes arbitrariness and unreasonableness. To ensure this, he has suggested that it is necessary to have a democratic legislature to make laws, but its power should not be unfettered, and that there should be an independent judiciary to protect the citizens against the excesses of executive and legislative power.

Criticism

Dicey’s first principle (supremacy of regular law as opposed to the influence of arbitrary power) has been seriously challenged, due to the proposition that the rule of law excludes even wide discretionary authority by the government. The modern government depends on many discretionary powers granted to the executive by the large numbers of statutes annually passed by parliament or other legislature.

It seems that Dicey’s theory may be interpreted to reject the thousands of rules in our society made through the discretion of delegated authorities. This first principle also cancel out the fact that, as a matter of essential competence, many present day statutes allow police the power to detain people for a short period of time due only to a reasonable suspicion. Ivor Jennings has also indicated that arbitrary power may be increased in national emergencies, such as war. This was reflected in the drastic powers given to the English government by the Defense of the Realm Act in 1914. 

Dicey’s second meaning stresses the equal subjection of all persons to the ordinary law. What a constitutional guarantee of equality before law may achieve is to enable legislation to be invalidated which discriminates between citizens on grounds that are considered irrelevant, unacceptable or offensive. These views of Dicey long impeded the proper understanding of administrative law, but today the need for such law in a democracy cannot be denied. Administrative courts as they may exist protect the individual against unlawful acts by public bodies.

Dicey’s second principle (equality before the ordinary law of the land) may also be challenged in today’s law. Although it is true that public officials who commit crimes or torts are liable before the ordinary courts (except for circumstances of non-justifiability, such as in The Church of Scientology v Woodward, it is not true that those public officials and private citizens have the same rights, and are thus equal.

“A tax investigator, for example, has powers which the taxpayer does not possess”. Furthermore, members of the police force may be able to exercise considerably more lawful power over members of society than the average citizen lawfully could.

The principle of equality before the law has raised significant problems for the rule of law. It would be unjust if the law failed to account for social difference and disadvantage, and simply presumed that everyone was equal and should be treated equally.

This led Hayek to attempt to adapt the rule of law in a manner that Joseph Raz thought created “exaggerated expectations” for it .

Hayek stated: “The requirement that the rules of true law be general does not mean that sometimes special rules may not apply to different classes of people if they refer to properties that only some people possess… Such distinctions will not be arbitrary; will not subject one group to the will of others, if they are equally recognized as justified by those inside and those outside the group”.

This statement lead Raz to allege it was a guarantee of freedom and a “slippery slope leading to the identification of the rule of law with the rule of good law”.

Dicey’s third meaning of the rule of law expressed a strong preference for the principles of common law declared by the judges as the basis of the citizens‟ rights and liberties. Dicey had in mind the fundamental political freedoms- freedom of the person, freedom of speech, freedom of association.

Today it is difficult to share Dicey’s faith in common law as the primary legal means of protecting the citizen’s liberties against the state. First, fundamental liberties at common law may be eroded by Parliament and thus acquire a residual character. Secondly, the common law does not assure the citizen’s economic and social well-being.

Third, while it remains essential that legal remedies are effective, there is value in a declaration of the individual’s basic rights and in creating judicial procedures for protecting those rights.

Diceyan theory may be further criticized due to his perception of the “sovereignty of Parliament and the supremacy of the rule of (ordinary) law”. Keith Mason has pointed out that Australian parliaments may be supreme, but they are not sovereign. “The rule of law affirms parliament’s supremacy while at the same time denying it sovereignty over the Constitution.”

Criticisms of Diceyan theory have lead to different formulations of the rule of law; but Dicey’s formulation still reflects some of the fundamental principles of the rule of law. In following his formulation some commentators prefer the narrow term „government under law‟ rather than „rule of law‟.

However some commentators prefer to formulate the rule of law, not as an actual rule of law in itself, but as a “statement of constitutional and juridical principle, a juristic reserve, an idea of a profound legality superior, and possibly anterior, to positive law. It is not easy to define with precision, because in part it manifests itself more as an absence than a presence, rather like those other great negatives, peace and freedom”. 

Conclusion

The rule of law is central theme to all democratic and civilized society of this world. The concept forms the basic framework of all legal system. It is one of the tools by which the unfettered power of executive is kept under control through supremacy of Courts.

Though the rule derives from common law system, particularly from Dicey and it met terrible opposition due to other option of much efficient system of Droit Administratif, it still forms the backbone of all civilized legal system of world. The rule of law and supremacy therein, however, shouldn’t be the only principle engraved in a legal system. This further becomes true when the legal system has large domain of implementation and further when there are expertise require in various domain for the several issues. 

In conclusion, a fine system and a well homogenized solution of rule of law and Droit Administratif is the most optimum solution for the efficient dispute resolution system. The two systems shouldn’t be staged inferior to one another and basic constitutional principles must be followed for the most optimum solution.  

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Amazon has addressed several letters to the authorities to bring the stake sale deal to their notice but has not received any remedy.

In response the Future Retail Ltd. has filed for an injunction in December 2020 before the Delhi High Court to prevent Amazon from issuing these letters. 

Though the Court held that the case of Future Retail Ltd. prima facie has merit, the injunction was not granted.

Amazon in its injunction petition plead before the Delhi High Court to implement the stay order passed by the Singapore International Arbitration Centre on the said stake sale deal worth of Rs. 24,000/-.

It was contended by the advocate appearing for Amazon that, since the respondents failed to raise objections or take action against the order delivered by the Emergency Arbitrator the parties would be required to abide by the order. 

It was further contended that the letters directed to the authorities like SEBI and CCI by the Future Retail Ltd seeking the award to be ignored do not hold any value.

Section 17(2) of the Arbitration and Conciliation Act expressly provides that interim awards are to be considered as orders of a court and no party can unilaterally declare it to be a nullity. 

The e-commerce giant also prayed for a restraining injunction order against the respondents to prevent them disposing any of the retail assets and sought damages.

In addition, they sought for civil detention of the Directors and promoters of the Future Group. 

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Lockdown through the Eyes of The Common Man: A Constitutional Enquiry

The onset of the havoc brought in by the ongoing pandemic struck the biggest democracy and second most populous country of the world on January 30^th, 2020 in the southern state of Kerala.[1] The nomenclature of the virus, i.e. SARS-CoV-2 or COVID-19 (severe acute respiratory syndrome coronavirus 2), could be traced to the earlier similar pandemics caused due to SARS-CoV and MERS-CoV in 2002 and 2012 respectively. With an infection rate of 1.7, the virus has infected around 4.5 million people worldwide and killed around half a million in the past 4 months itself[2]. As an immediate response to the pandemic, the Indian government invoked the Epidemic Diseases Act, 1897 to implement the nationwide ‘lockdown’, i.e. essentially shutting down all educational, commercial, and governmental establishments, cancelling large scale events, including competitive exams, along with an absolute prohibition on the movement of people.

The outbreak of COVID-19 was brought into the light of the world community on December 31^st, 2019 after China informed the World Health Organisation (WHO) about a cluster of highly infectious pneumonia-like disease in the city of Wuhan. Within the following three months when the world was still trying to wrap its head around the virus, the number of cases rose exponentially (13-fold increase) making Dr Tedros Adhanom Ghebreyesus (Chief of the World Health Organisation) declare it a global pandemic on March 11^th, 2020.[3] The announcement followed with the generally advisory urging all governments worldwide to take ‘urgent and aggressive action’[4] in this regard.

The Indian government applied its set of first preventive measures during the last week of January by beginning thermal screening of passengers coming from China. By February, the screening was extended to passengers coming from Thailand, Singapore, Hong Kong, Japan and South Korea[5]. On March 17th, 2020, an advisory was released by the government seeking the states to implement the strategy of social distancing[6]. On March 22nd,2020, PM Narendra Modi ordered a nationwide 14-hour public curfew, calling it ‘Janata Curfew’. This was followed by the implementation of the first lockdown or ‘lockdown 1.0’ starting March 24^th, 2020 that extended for 21 days, curtailing the movement of the entire 1.3 billion people (apart from the bare essentials). Post the 21-days period, two subsequent lockdowns were announced allowing minimal movement of people in areas with low incidence of cases.

In the light of the entire country moving towards the lockdown 4.0 from May 18^th, 2020, it is pertinent to launch an enquiry into the critical constitutional questions that arise as a result of the policy decisions being taken by the government to deal with this pandemic. The direct or incidental impact of the pandemic as well as the ‘lockdown’ over certain sections of the populace (especially the economically and socially weaker sections such migrant labourers, daily wage workers, self-employed people, contractual workers, tenants etc.) has brought out ghastly and disheartening plight of suffering, shared regularly via images that circulate the print and the electronic media across the country. The pandemic or the preventive measures that have been or need to be taken have raised certain fundamental and core constitutional rights issues surrounding Articles 14 and 21 of the Indian Constitution, which deal with right to equality and right to livelihood respectively.

The main idea of equality enshrined under Article 14 of the Constitution revolves around the concept of no direct segregation (discrimination) of any sort between people belonging to different groups or classes. The major issue surrounding this topic is that even if a law that is neutral on its face and does not single out any group or individual nonetheless can have a disproportionate/discriminatory impact on certain groups and people (i.e., discrimination). The current lockdown situation appears to be neutral on its face as it is equally imposed on all class and sections of the society; but the impact cast by the same has far-reaching, deep and discriminatory consequences as can be observed. 

Article 21 of the Indian Constitution that talks about right to life and personal liberty, not only involves judicial activism but also judicial creativity. Life being a very subjective term, the Indian Constitution protects ‘life’ not only by the meaning of mere animal-like existence but through the inclusion of several other factors essential to the maintenance of life such as the right to healthcare and majorly right to livelihood as further illustrated in the case of Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni.[7] In this regard there also exists the landmark judgment of Olga Tellis v. Bombay Municipal Corporation[8] which described how the periphery of ‘right to life’ is wide and far-reaching and not a single pronged one, and how “an equally important facet of the right to life is the right to livelihood because no person can live without the means of livelihood.” 

A holistic understanding of both the aforementioned provisions in consonance with the socio-economic realities in the country brings out the verity of Indian populace where some people have to pay a heavier price and work much harder for maintaining their life and securing the lives of their respective families, and those who are doing so, are already economically and socially marginalized (mainly the migrant labourers, daily wage workers, street vendors etc.).

Speaking of the nationwide lockdown and its ill-effects, what is highly noticeable is the large-scale violation of the basic fundamental rights of certain selected groups of people, hence highlighting the need and obligations of the state authorities for introducing various policies for mitigating the infringement of these fundamental rights. The duty of the State to secure the rights of all the citizens doesn’t emanate merely as social or moral responsibility but also forms an intrinsic part of its constitutional duty towards the populace. In this respect, the unfortunate instances of labourers walking hundreds of kilometres across the states, or people dying of starvation and lack of basic amenities and livelihood clearly forces us to rethink the entire paradigm of human existence vis-à-vis constitutional responsibility of a State.

In circumstances like these, when the fundamental rights of people are thrown out of the window and side-tracked in most of the policy decisions, the most effective recourse is to approach the judiciary of the state. However, the judicial arms is at times ill-equipped in terms of resources and scientific know-how to deal with health emergencies of this magnitude. This is no way relieves the Courts of its responsibility of maintaining the fundamental rights and overall law and order in the society. The judiciary is still accountable to ensure the efficacy of mitigation measures undertaken by the governments, if not directly direct them to undertake one specific course of action.

It is the judiciary that acts as the legal beam-balance for the country and in exceptional situations where the positive rights of people are being abrogated, such as the present one, it is the duty of the state governments to come up with various remedial structures providing for appropriate and legitimate amounts of compensation and the availability of the adequate amount of comprehensive relief package which is legally enforceable in nature. The responsibility and the duty of the judiciary of the country is to regulate that such compensation is legitimate, appropriate and satisfactory enough with respect to the minimum core socio-economic conditions that are necessary for the citizens of the country to live a dignified life and enjoy core essential fundamental rights enshrined in the Constitution.

The Central Government introduced the nationwide lockdown on 24th March 2020 to follow the policy of social distancing, allowing movement outside the residence only for bare essential subjects. This measure included the shutting down of major public places, institutions as well as corporations for avoiding overcrowding and also launched other platforms such as online courses and ‘work-from-home’ allowing people to be able to keep up with their work without being hindered by their physical absence from their respective workspaces. However, like every coin has two sides, even these measures have a certain fallout. The population of our country consists of two economically divided classes, one being people belonging to the higher economic strata and the other belonging to the labourer or lower economic status. Hence, the preference towards policy of online work or work-from-home although proves to be an effective platform for those who are into the corporate and the service sectors, it has no positive effect on daily wage earners or the labour class whatsoever. This policy is highly based on the working of the corporate sectors only leaving the menial wage earners haywire as to how to earn a living during these tough times to maintain their lives. It is not an alien reality that higher economic status or nature of job allows much greater flexibility of working from home rather than the ones in the lower strata.

To provide support to the ongoing situation, the Central Government came up with the State Disaster Response Fund (SDRF) for providing food and shelter to the migrant laborers who are being hit hard by the lockdown. The fund has a total budget of INR 29,000 crores.[9] Apart from these policies, several other provisions have been made such as hiking up of the wages under the MGNREGA plan and provision of one-time ex-gratia amounts in the accounts of around 3 crore senior citizens, disabled people and widows and people below the poverty line. But the findings of the Stranded Workers’ Action Network (SWAN) under their study of ‘32 Days and Counting: COVID-19 Lockdown, Migrant Workers, and the Inadequacy of Welfare Measures in India’, showed that out of the 17,000 workers who had contacted them, only 6% were paid their full salary and more than 99% self-employed workers did not receive payments, including painters, welders, electricians[10]. Most of them happen to be contractually employed and send their revenue home. The lockdown affected them the most when it was announced initially because they were unable to come back home overnight, in such a situation all that one can expect at the least is a basic and clean accommodation facility which was not properly provided to them. Hence as observed, the policies and provisions of the government didn’t really have an all-over positive effect on the highly economically stratified population of the country.

Now in these difficult times, when what the country requires is a united front to face the pandemic situation together, the Indian states have been posing greater difficulties by the means of inter-state rivalry in terms of hiding data, fabricating data, lack of conducting regular tests, irregular economic policies such as revoking labour legislations, and worst of the worst inter-political disputes that is posing a greater threat to the country than the loss of the population at the hands of the pandemic. The lockdown thereby has started seeming more like an experiment that is being conducted by the government and the political parties, diminishing the citizens of the countries to the status of mere lab-rats.

The lockdown was and still is being managed by a multitude of more than 3,000 orders placed in bureaucrats, commanding both citizens as well as bureaucrats and threatening them with criminal prosecution, but never offering a rationale for decision-making. Orders may force citizens to comply with the state lockdown rules, but they cannot force citizens to open up to them. Firms and workers face an uncertain future, and they need the confidence to be able to make rational choices. This can only come from a completely different type of communication that can possibly replace such orders with a credible road map for the economic revival of the nation. The inability of the governments to be able to provide such a specialised yet holistic guide to the country even after being in the lockdown for several weeks is what the greatest barrier to recovery is.

In this entire conundrum, the Hon’ble Supreme Court of India has relinquished its responsibility of interfering in most of the matters related to the pandemic. At this risk of venturing into the domain of the Executive by policy-making or judicial-overreach, the Judiciary must expediently take note of certain measures taken by the governments that are in gross violation of the basic constitutional morals and values. By the invocation of the Natural Disasters Management Act, the Centre has given birth to a number of broad clauses allowing the government a lot of liberty to act on its own. However, the checks and balances on such an Act can only be ensured by swift and timely judicial intervention. This clearly illustrates the high need and responsibility of the judiciary to be active and at times pro-active in terms of their constitutional validity and application. The discourse surrounding the contours of judicial overreach vis-à-vis judicial activism would seem fruitful only if we are left with a dignified citizenry at the end of this unfortunate dark tunnel.

[1]Vasanti Vara, Coronavirus in India: how the COVID-19 could impact the fast-growing economy, PHARMACEUTICAL TECHNOLOGY, 30, May 2020, https://www.pharmaceutical-technology.com/features/coronavirus-affected-countries-india-measures-impact-pharma-economy/.

[2] Amitabh Sinha, One COVID-19 positive infects 1.7 in India, lower than in hot zones, THE INDIAN EXPRESS, May 8, 2020.

[3]According to Merriam Webster dictionary a pandemic isan outbreak of a disease that occurs over a wide geographic area and affects an exceptionally high proportion of the population.

[4] Who.int. 2020. ‘WHO Director-General’s Opening Remarks At The Media Briefing On COVID-19 – 11 March 2020’. Available at https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19—11-march-2020 [Accessed 8 May 2020].

[5] Neetu Chandra Sharma, Nidheesh M.K, Passengers arriving from Japan and South Korea will also be screened for COVID-19, all 3 patients in India recovered, Live Mint, 15 Feb 2020.

[6] Leroy Leo, Neetu Chandra Sharma, Govt calls for social distancing as confirmed coronavirus cases rise to 124, Live Mint, 17 March, 2020.

[7] 1983 AIR 109, 1983 SCR (1) 828

[8] 1986 AIR 180, 1985 SCR Supl. (2) 51

[9] Govt Changes Rules to Help Migrant Workers Amid Covid-19 Lockdown, State Disaster Funds to be Used for Providing Food, Shelter, NEWS 18, March 28, 2020.

[10] Devparna Acharya, COVID-19 Lockdown: 50% of stranded migrant labourers have less than Rs 100; 97% didn’t get cash transfer from govt, finds report, FIRSTPOST., May 12, 2020.

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How to file an FIR online?

First Information Report (FIR) is a very vital document as it sets the process of criminal justice in motion. Once FIR is filed, Police start the Criminal Investigation. It is a fact that people hesitate to approach Police Station to lodge any complaint. There is a stereotype that filing an FIR would be a cumbersome process. There are many reportings that Police often discourage to file FIR, to show a low crime rate of such concerned area. Now, with the help of online FIR, people will able to register cases easily as compared to physically registering of FIR.

What is FIR?

First Information Report (FIR) is a written document prepared by the police when they receive information about the commission of a cognizable offence i.e. offences where police can arrest a person without any warrant. It is a report of information that reaches the police first in point of time. Any person can report the commission of a cognizable offence either in writing or orally to the Police. The First Information Report is generally filed by the victim of the cognizable offence or by someone on his/her behalf. The Procedure to file an FIR is prescribed under Section 154 of the Code of Criminal Procedure.[2]

Is the Procedure to file an online FIR is same in all states?

Yes, in most states/cities the procedure to file an FIR online is more or less similar, the complainant is simply required to visit their official Police website and fill the necessary details correctly.

To get the overview on how to file an online FIR, the procedure to file an online FIR in the state of Uttar Pradesh is discussed below

Procedure to file an Online FIR [in Uttar Pradesh]

Step 1: Visit the official website of the concerned police station of that city/state. For example: For Uttar Pradesh police, visit the official website of Uttar Pradesh police i.e. https://uppolice.gov.in/#Home.

Step 2: On the Home page, there will be an option, ‘e-FIR’. Search for the tag and click on that icon for further filling of complaint.

Step 3: Once you will click that option, you will be directed to a new window, where you have to register yourself by entering necessary details, such as: Mobile Number and Email id etc.

Step 4: Once you register yourself, then you will be drop-down with many options such as personal details, place of occurrence and missing item. If you have filled all these details and submitted then you will receive an OTP at your registered mobile number for confirmation. Please, be careful when submitting the details and try to re-check again once you filled it. 

Step 5: When you enter the correct OTP, then you will receive a copy of the FIR via your registered email address. 

In case, the complainant has to view their complaint, then they have to again login to the website of the concerned police station, as an existing user. Once they will login as existing user, then an option of ‘view registered report’ will be displayed on their screens. On clicking that option, the complainant can see their registered report.

Within 24 hours the complainant will receive the details of their Investigating officer (“IO”). Further, the Investigating officer will visit to your registered address to get the exact necessary details.

Can we file FIR online?

Yes, some states/cities in India allow for online submission of FIR/Complaint. They are:

[1] https://timesofindia.indiatimes.com/city/lucknow/up-cop-masturbates-in-front-of-women-at-police-station-video-goes-viral/articleshow/76722680.cms

[2] S.154, The Code of Criminal Procedure, 1973.

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In one of the major decision, Govt. has banned 59 Chinese apps including TikTok citing the security issue. This move is apparently targeted toward the safety and interest of Indian mobile users. “The Ministry of Information Technology invoked its power u/s 69A of the Information Technology Act read with various concerned rules.

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Chaman Lal & Ors vs State Of J&K And Ors

                   To quash Order issued by Chief Engineer, Public Health Engineering Department, Jammu by filing a writ petition. The case of petitioners herein for regularization of their services came to be rejected and to release the unpaid wages.

Facts:

• The petitioners, seventeen in number and belonging to District Kathua, came to be engaged as Daily Rated Labourers in Civil as well as Mechanical Divisions of PHE, Kathua between the period October 1994 to January 2000 and since then they have been discharging their duties, which has also been certified and authenticated by the respondents themselves in the year 2005.
• It is averred that the petitioners during all these years made a number of representations to the respondents for regularization of their services and when nothing fruitful came out, they filed SWP. The said writ petition was filed by as many as including the petitioners herein, which came to be disposed of on with a direction to the respondents to accord consideration to the petitioner’s case for regularization in the light of averments made in the petition.

Petitioners Submission:

• Respondent did not consider the case of petitioners in an effective and bonafide manner nor respondent No.2 while passing the impugned order had taken into consideration that the petitioners have been working since the dates of their respective engagements without any break in service. Thus, the action of respondents is per se illegal and arbitrary.
• State Government from time to time has framed various policies for regularization of daily rated workers but the benefit of said policies has not been extended to the petitioners herein, more particularly when the petitioners have already rendered more than qualified service, thus are entitled for regularization of their services and respondents have also not paid the petitioners their legitimate wages.

Respondents Submissions:

• The petitioners were engaged for a specific period and work. It is further averred that at present the petitioners are not working in the department and have left the department on their own. The wages in respect of petitioners were calculated on individual basis and were deposited before this Court in the form of cheque, as such the claim of petitioners do not sustain for any monetary benefit.

Decision:

The court did not find any merit in the writ petition and the same is, accordingly, dismissed. However, respondents are directed to release the unpaid wages, if any due in respect of any of the petitioners, within a period of four weeks from today. Registrar (Judicial) is also directed to release the wages in favour of petitioners as per their entitlement after proper verification and identification.

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INDIBILITY CREATIVE PVT LTD AND ORS VS. GOVT OF WEST BENGAL AND ORS (WRIT PETITION (CIVIL) NO 306 OF 2019) 

FACTS OF THE CASE: 

The Petitioner produced a Bengali film (a socio-political satire) titled Bhobishyoter Bhoot, holding a U/A certification. Four days before its release, the Director of the film received a call saying the State Intelligence Unit of the Kolkata Police wanted a private screening for some of its senior officials as it was concerned that the film could lead to a grave law and order situation if not properly censored. It wanted to ensure itself of the correctness of the content so as to uphold public safety. Since the film had already been duly certified and the Kolkata Police had no power to demand a special private screening, the same was not done by the Petitioners. Subsequently, within 24 hours of its release in 48 theatres, major distributors like INOX, PVR and Cinepolis abruptly suspended the screening without any explanation or communication with the Petitioners.

Further, tickets for the film were reimbursed to the public. Desperate to understand what caused this intervention, the Petitioners requested more information from all the cinema halls as well as the local police. No one responded to their queries but eventually, INOX Leisure Ltd. confided that unnamed “higher authorities” asked them to do so. Other exhibitors shared that various station-house officers from local police stations visited them threatening to destroy their cinema halls if the orders were not complied with. 

The Supreme Court in this case was called upon to issue Mandamus to the concerned authorities so as to stop their obstruction of the free exhibition of the film and related reliefs. To that effect, the Court expertly toes the fine line between freedom of speech and expression and its limitations as envisaged holistically under Article 19 of the Indian Constitution. 

ISSUE: 

1. Whether the Government was justified in its actions, regard being had to the fundamental right of free speech and expression under Article 19 and its accompanying reasonable restrictions? 

JUDGEMENT: 

To understand the complex dynamic of freedom of speech and expression and reasonable restrictions, this judgement closely evaluated the ideological, philosophical and moral origins of free speech as enumerated in celebrated historic writings. In doing so, the Court highlighted the true nature of this right. It enumerated that, “Commitment to free speech involves protecting speech that is palatable as well as speech that we do not want to hear.” Therefore, any true democratic polity would allow not just the opinions that are in line with its thinking but also those that are in total opposition. 

Any civilized society is characterized by its support of conflicting ideologies. One may not agree with something that is said or done but such disagreement does not take away the other’s right to continue doing what he deems best. Setting aside any doubts to the contrary, this judgement once again declared that free speech is crucial and inalienable to a democratic structure.

The Court clarified its stand by reiterating the principle of harm built into the liberties envisaged by Article 19. Thus, there can be no question that even fundamental rights are not absolute in nature, they can be curtailed to prevent harm to others. But in S. Rangarajan v P. Jagjivan Ram¹, the Apex Court held that limitations on freedom of speech should be strictly and narrowly construed as per Article 19 (2). Moreover, mere criticism of a Government and its policies can never be good ground to subjugate public liberty. Limitations are to be used out of necessity, not intolerance of criticism. 

To that effect, in the present circumstances, it was seen that satire is a literary genre that brings attention to socio-political issues by ridiculing them. It has in the past successfully drawn people’s attention towards many a pertinent cause and continues to flourish as an artistic style of expression. Citing LIC V Manubhai Shah², it was explained that citizens have every right to express themselves through any type of media. Effectively, artists are also protected and their work cannot be made subservient to a popular, majoritarian thought process. Such liberty advances public dialogue on socially relevant topics, which in turn is essential for the upkeep of a thriving democratic structure. In fact, any attempt to gag free speech should be condemned; for rigidity of thought and shackles on speech pave the way for an autocratic rule that turns a deaf ear to its retractors. 

With respect to the concern for law and order raised by the Respondents, the Court referred to its decision in K. M Shankarappa v Union of India³ where it was held that once an expert authority has considered all possible effects of a film on the society and given a certification, the Government’s interference is wholly unnecessary. It is rather the Government’s responsibility to ensure that society runs peacefully. But this responsibility cannot be carried out prospectively, fearing a future breach. All executive actions are regulated by rule of law and no authority can overturn that boundary. 

Additionally, the Court held that artistic rights do not originate solely through Article 19. As per the decision in Anant Chintamani Dighe v State of Maharashtra⁴, people’s right to know and the right to information is inherent in Article 21, the golden Constitutional component that guarantees right to life and personal liberty. Thus art and artists’ rights are to be upheld not only for the purposes of Article 19 but also for those of Article 21. 

Lastly, sounding a death knell to the Government’s stance of morality and public welfare, the Supreme Court declared in no uncertain terms that Governments should leave the citizens to their own decisions and have no authority to decide what kind of content is fit for the citizens and what isn’t. Moreover, the police in a democratic society like India cannot function as “self-appointed guardians of public morality”. Authority is shaped by rule of law, not personal opinions or ideology of the individual wielding it. The police therefore cannot voluntarily make themselves party to a unilateral, pre-meditated attempt to suppress free speech as seen in this case. 

The limitations set out in Article 19 (2) impose negative restraints on the State but they also imply a positive mandate to create an atmosphere conducive for the enjoyment of free speech and expression. It is therefore the State’s duty to ensure that people can be free. In its own words, “The instruments of the State must be utilized to effectuate the exercise of freedom.” Furthermore, statutory authority to certify films for an audience lies with the CBFC as per the Cinematograph Act, 1952 and not the local police. 

As such, the Respondents’ actions were held to be unconstitutional and in complete derogation of the high ideals envisioned by Article 19 and 21. The Court recognized the wrongful attempt to suppress criticism and enunciated that the same was not in line with India’s Constitutional values. A Mandamus to restrain obstruction of the film’s exhibition was duly issued.

1. (1989) 2 SCC 574
2. (1992) 3 SCC 637
3. (2001) 1 SCC 582 
4. 2001 Cri LJ 2203

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THE STATE OF TELANGANA v. SRI MANAGIPET @ MANGIPET SARVESHWAR REDDY

Facts of the case

Through these Criminal appeals before the Apex court the order date 24^th December, 2018 passed by the High Court of Judicature Hyderabad is being challenged by the State and by the accused.

The impugned order by the Hon’ble High Court was passed as a result of petition of the Accused officer under Section 482 of CrPC for quashing of the charge sheet filed on 9^th October 2017. The accused officer was charged with possession of assets worth Rs.3,18,61,500/- alleged to be disproportionate to his know sources of income.

The High Court quashed the charge sheet, holding that there was a lack of authorization to register the Crime under section 13(2) and 13(1)(e) of the Prevention of Corruption act, 1988 and that the informant (i.e. the Deputy Superintendant of Police in this case) cannot be the Investigating officer. (Para 5)

The appealed against the above two finding of the Hon’ble High Court, whereas the Accused officer challenged the findings of the High Court not accepting the grounds pressed by him in seeking the quashing of the charge sheet – that there is no preliminary inquiry before the registration of the Crime’ that there is no sanction and that there is a delay in the completion of the investigation which has prejudiced the rights of the Accused officers.

What was held?

Issue 1.  Whether the Joint Director, Anti-Corruption Bureau was discharging his duties as a Government servant or as a Contractual employee?

The Apex court found a glaring irregularity in the findings of the Hon’ble High Court. The High Court held that the Joint Director, Anti-Corruption Bureau K Sampath Kumar was re-employed and his age of Superannuation was extended without the Compliance of Article 16. Article 16 ensures equality of opportunity for all citizens in the matters relating to employment to any office under the State. This would require the State to issue public advertisement for filling of the office till an appropriate candidate is appointed by the UPSC or the candidate should be put before the body authorised under the relevant rules for his selection. Which was not proved to be complied before the High Court and hence it held that the appointment of the Joint Director was purely contractual and hence he cannot be called a government servant. The Apex Court Stating Article 310 which states that all members of the defence services or of the civil services and other posts connected to defence or civil services under the Union holds office at the pleasure of the President and under any State holds that office at the pleasure of the Governor. It held that K Sampath Kumar was re-employed by the State Government in exercise of the powers conferred under Article 162 of the Constitution of India. It also held that there is no prohibition in any of the service rules that there cannot be any re-employment of a person who was once in a civil service. After being re-employed he was holding a civil post as his salary was being paid from the state exchequer and was discharging duties in responsibility in the Anti-corruption Bureau.

Thus the Supreme Court held that Sri K Sampath Kumar was discharging his duties as Joint Director in the Anti-Corruption Bureau in exercise of powers conferred by the State Government and thus was in fact a Government Servant.

Issue 2.  Whether Joint Director Anti-Corruption Bureau was within his powers to authorise the registration of the case against the accuse officer?

 The Court held that K. Sampath whilst discharging his duties as Joint Director, Anti-corruption Bureau had full authority of the office he held. It held that if the action taken by such officer is in public interest and not for his own benefit then it will be taken to be valid.

The court based its findings on the de facto doctrine. The doctrine basically says that a Judge is not a mere intruder or a usurper but is one who holds the office under the colour of lawful authority. Which essentially make the office the essence of the matter? Even though the appointment of an officer may carry some defects, the actions taken by him are in the name and power of the office and thus would carry the same power as if there are no defects, unless such actions are unlawful.

Issue 3.  Whether an informant can be an investigating officer in the same case?

 The Court found that the Judgement in the case Mohan lal v State of Punjab on which the High Court based its order on was held to be prospective in the Judgement in the case of Varinder Kumar vs State of Himachal, the court in this case held that there should be a balance in the rights of the accused and the prosecution and the Criminal Justice system cannot be allowed to veer exclusively on the side of the accused.

Issue 4. Whether preliminary inquiry before registration of a crime is mandatory?

The counsel appearing for the accused heavily relied on the judgement reported as Lalita Kumari v Government of Uttar Pradesh & Ors. in which case it was laid down that preliminary inquiry is warranted so as to avoid an abuse of the process of law. Where the police officer is doubtful of the veracity of an accusation, he has to conduct a preliminary inquiry. To which the court replied that if the information given by informant discloses a cognizable offence registration of an FIR is mandatory and no preliminary inquiry is permissible in such a situation.

Preliminary inquiry is not a must in all cases and may be conducted pertaining to Matrimonial disputes/family disputes, Commercial offences, Medical negligence cases and Corruption cases etc. The Judgement of the Apex Court in Lalita Kumari  case does not state that proceedings cannot be initiated against the accused without conducting a preliminary inquiry.

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1.     WHAT IS GLOBAL ADMINISTRATIVE SYSTEM

Global administrative law can be understood as comprising the legal rules, principles, and institutional norms applicable to processes of ‘administration’ undertaken in ways that implicate more than purely intra-State structures of legal and political authority.[1] While few scholars like Armin Von Bogdandy of German School of Heidelberg called global administrative systemas ‘exercise of international public authority’[2] and Eyal Benvenisti Professor of International Law at the University of Cambridge calls it as law of global governance.[3] Evidently, the reason as to why Global administrative system thrives is that global problems require global institutions. To control doping in sports, to control epidemics, to organize Olympic Games, to control world trade, international finance, to protect highly migratory species, to reduce global warming and to monitor the internet, one country cannot administer in such a wide issue cribbing itself in national realm, it has to seek global institution for all.[4] There are numerous international organization which has international influence and has binding effects across various matters upon a sovereign country. Here is the list of ten major international bodies that author find to have very influential position at global scenario.

2.     LIST OF IMPORTANT INTERNATIONAL BODIES

I.            United Nation[5]

United Nation, hereinafter referred as UN is an international organization, which came into force on 24^th October 1945. It is having 193 member states. It has replaced League of Nation[6]

II.            International Monetary Funds[7]

International Monetary Funds, hereinafter referred as IMF, was established in 1945, it was formed to promote and facilitate the world trade, secure financial stability, sustainable economic growth and to decrease poverty globally; as of now it has 189 member countries.

III.            World Health Organization.[8]

World Health Organization hereinafter referred as ‘WHO’ is the subsidiary body of United Nation (UN), which works to consolidate the plan of healthy society and concerned with International Public Health. The Constitution of WHO has been signed by 61 countries, the institution itself works with 149 member states.

IV.            World Bank[9]

It is an international financial institution which lends funds to poorer or developing states for the purpose of development. The very recent goal that the institution envisage is to reduce global poverty.[10] India[11] and China[12] were the two largest recipients of the funds with 859 million $ and 370 million $ in year 2018 respectively.

V.            World Trade Organization[13]

WTO is an international organization or intergovernmental organization which is concerned with the international trade. In the era of Globalization, international trade is the reason for upliftment of society, increasing the GDP of a country etc., hence it is an important sector. It was established under Marrakesh Agreement which was signed by 123 countries. It is the largest economic based organization in the world.[14]

1.     ARRAY OF AREA AFFECTED BY THE GLOBAL ADMINISTRATIVE LAW

There are those international institutions which channelizes the flow of power which affects the sovereign activity of a country and some of the array which is determined by such global administrative systems are arms control,[15] competition law,[16]environmental protection,[17]food safety,[18] intellectual property protection,[19] labor standards,[20]pharmaceuticals regulation,[21]refugee protection.[22] Discuss about ki importance of globalization kikaiseuskebaadjaa k cheeze change huiooper die huyicheezo k liye plus health and wars and arms race… and all… applying all shit to india.

I.            Constitutional Provisions to facilitate implementation of Global Administrative Law.

       I.            Article 51 of the Indian Constitution

This article provides the power to implement various international treaties. The wording of the said section describes that State shall endeavor to foster international peace,[23] maintain honorable relation between countries,[24] foster international law and treaty[25] and finally to encourage arbitration to foster international settlement.[26] Courts in its various judgment has stated that international instrument by the virtue of this article, those international instrument for which India is a party becomes the law of the land as long as they are consistent with the Constitution.[27] It is pertinent to note that, Extradition is considered as a contract,[28]which is enforceable in the court of law.[29] Other principles that circumscribe Article 51, which the court has settled repeatedly, are[30]:

1. International treaties automatically don’t assimilate into a national law but they are incorporated by due process of law.
2. National Courts in regards to international treaty, interpret them in such manner which maintain the harmony between international and national law.
3. National law, if is contrary to the international law, the national law shall prevail.
4. It is the power of Union to enact the international treaties under Article 253.

    II.            Article 253 of the Constitution and Entry 14 of the Union List

Entry 14 of the union list confers the power to the Union, to make laws w.r.t., entering into international treaties or agreement and implementing of treaties.[31] It is clear that, any law passed by the Parliament to give effect to the international treaty will not be invalidated on any absurd ground.[32]

1.     ARMS CONTROL

International laws and treaties govern production, stockpiling, usage, sale or arms, weapon and weapon of mass-destruction.[33] Arms control is initiated through diplomacy in which the consenting parties are obliged to follow the restriction and guidelines for the arms control. Such restriction is enforced by treaties, agreements and conventions.

I.            Reason

The main reason international forces interfere with the arms management is that to avoid the arms race[34] which will in future help the consenting party to move toward future peace.[35]

II.            How it get Enforced

The enforceability of arms control agreement is a difficult task, decision to continue or abort the agreement is still upon the choice of participant country. One such example is Washington Naval Treaty,[36]

III.            During the 19^th Century

The very first treaty of the said era was that of ‘Rush Bagot Treaty’ which was between US and UK, which was entered in 1817, led to the dematerialization in various regions of North America.[37] This era is an important portion in the human history because of the rapid industrialization.[38] Due to the industrialization there was rapid growth in the mechanization of warfare, development in the arms technology which increased the potential threat of the weapons.

These developments and threats which arose from such development raised the security issue of various country. Tsar Nicholoas II (Russia) called together 26 nations for the conference, also called First Hague conference in the year 1899.[39] In the said conference rules were framed in regards to the way war is supposed to be conducted and the use of weaponry and more importantly led to the establishment of the Permanent court of Arbitration.[40]

IV.            (1900 – 1945) Era

As been discussed about the first Hague conference, in this era two Hagueconference were called first one in 1907[41] and second was in the year of 1915.[42] Later on, it was abandoned due to ongoing World-war.[43]

V.            1945 onward

United Nation was formed after World War I[44] in order to promote international security and

Peace.[45] US propounded the Baruch Plan to deter nuclear arms race but was rejected by Soviet

Union.[46] Later on International Atomic Energy Agency was set up in 1957 in order to promote the peaceful use of Nuclear Energy.[47] In the year 1968 after the nuclear test at Pokhran by India, The Nuclear Non-Proliferation Treaty was established, stating that no other country except US, UK, Soviet Union, France and China will possess the Nuclear weapon.[48]

VI.            How it affected Indian Administration

After introduction of NPT, India cannot procure nuclear arms expressly anymore. It changed the way administrative function was functioning till now. Even if the arms are being procured; total secrecy is maintained.  No other country will sell its Uranium to India for the purpose of procuring nuclear arms.

2.     TRADE LAW

It is in the recent times that various National markets have started to act interdependent.[49] Earlier, i.e., before World War II governments were reluctant to open their economy. They had fencing around their economy which they created by charging enormous tax for importation, due to which no market had influence over other market.[50] But after the end of World War II, the said fences weakened. Government decreased the importing cost and this led to the collaborative trade that we see today.[51]

I.            Efforts to increase co-operation in Company Law and Policy

In Historic times and in recent times, Global Administration or countries had and have taken various steps to foster international cooperation in trade and business. The present research will bifurcate such cooperation in two parts, first being Historical aspect and then the current aspect.

       I.            Historical aspect

        i.            The Havana Charter

After World II, United Nation established a mechanism through which it would prevent any event which will cause restrictiveness in the international trade. Such mechanism was the result of the establishment of the institution, which was International Trade Organization (ITO).[52]

UN conducted a Conference on Trade which took place in Havana, also known as Havana Charter, for empowering ITO to specialize in not only governmental trade but any event restricting international trade.

    II.            Present aspect

        i.            The OECD

The OECD, which is The Organisation for Economic Co-operation and Development (OECD) is an international organization whose goal is to promote such policies which has the potential to let its member to achieve the highest sustainable growth in the World’s Economy.[53]

      ii.            The UNCTAD

The UNCTAD, which is The United Nations Conference on Trade and Development was formed to prevent any restrictive business practice.[54]

    iii.            The WTO

WTO is an international organization or intergovernmental organization which is concerned with the international trade. In the era of Globalization, international trade is the reason for upliftment of society, increasing the GDP of a country etc., hence it is an important sector. It was established under Marrakesh Agreement which was signed by 123 countries. It is the largest economic based organization in the world.[55]

II.            Its effect in Indian Administration

India is a member of WTO, and if Indian administration goes against the notion of WTO, it can face sanctions. In the today’s world of Globalization, where economies are interdependent and require optimal export, if any sanction is put upon, then that nation’s whole purpose of economical growth will go down as well.

3.     ENVIRONMENTAL PROTECTION

In the present time, the climate is changing and heading toward a very uncertain direction.[56] World is now taking the issue of climate control very seriously,[57] and stepping out to convince the world collectively to take some measures. Here are the lists of Conventions, treaties and institutions of which India is a partner and which pertains to the Environmental protection.

I.            Forestry

1. International Tropical Timber Organisation (ITTO)[58]
2. The Cartagena Protocol on Bio-safety (TCPB)[59]
3. UN Convention to Combat Desertification (UNCCD)[60]
4. Commission on Sustainable Development (CSD)[61]
5. United Nations Framework Convention on Climate Change (UNCCD)[62]
6. International Network for Bamboo and Rattan (INBR)[63]
7. Asia Pacific Forestry Commission (APFC)[64]
8. Asia Pacific Forest Invasive Species Network (APFISN)[65]

 II.            Wildlife Conservation

1. Convention on International Trade in Endangered Species of Flora and Fauna (CITESFF)[66]
2. IUCN: World Conservation Union (IUCN)[67]
3. UNESCO World Heritage Program- Cultural and Natural Sites (UNESCO-WHP)[68]
4. Convention on Conservation of Migratory Species of Wild Animals (CCMSWA)[69]
5. International Whaling Commission (IWA)[70]

4.     INTELLECTUAL PROPERTY PROTECTION

Intellectual property can be said to be such kind of property which is in intangible form made out of human intellect.[71][72]  There are many types of such kind of property; the very well known are Copyrights, Patents, Trademarks, and trade secrets.[73] The very purpose the intellectual property laws are to encourage the people, the developer to create numerous intellectual goods.[74]

The Intellectual Property Laws prohibits such deceptions, as has been depicted in the image above given.

I.            Kinds of Intellectual Properties

There are various kinds of Intellectual Properties such as Patents, Copyright, Trademarks, Geographical Indications, Industrial Design Rights, Plant variety rights, and Trade dress.[76] Out of which the concerned properties has been elaborated:

       I.            Patents

There exist a problem for which a new approach is required, which can be done by the mean of inventions or discovery only. In order to encourage inventions or developments, Government reward certain rights to the inventor over its inventions, i.e., it is up to his decision to decide if such invention will used for selling, importing, exporting, exchanging or public disclosure of its fact.[77] The Indian Patent Law gets it historical root from the English Law,[78] it corresponds to the theory that it stimulates the technological progress,[79] and to encourage the flow of inventions.[80] There are restrictions in patent system, when it comes to Indian panorama. It is not considered in the public interest to grant the patent rights which do monopolization[81]

    II.            Copyright

  One of the main objects of copyright is to promote production of materials related to science, literature, arts etc. Copyright ensures that authors has the right over his creation but also promote and encourages others to use the idea of prior authors.[82] Copyrights protect the creator of the content, because they have invested their capital into it,[83] In India such protection is given for 60 years after the death of the creator of the content.[84]

 III.            Industrial Design Rights

In order to make any product appealing, the specification has to be top notched but with specification, its design also needs to be appealing. Thus from the perspective of IPR, such design need to be protected.[85] The present Indian Act governing the Industrial design is ‘The Design Act, 1911’.

 IV.            Trademark

The laws were developed in regards to the trade which can be traced back to the initial period of Industrial Revolution.[86] Normally these are the following functions of the Trade mark:

• It identifies goods of one trader and distinguish it from the goods sold by others
• It denotes that a trade mark bore by the product or good belongs to that single source only
• Such trade mark is crucial for selling of such goods.[87]

    V.            How it affected Indian Administration

In the year 2005, India became the member of an agreement on Trade-related Aspects of Intellectual Property (TRIPS)[88]. Due to which it now had become mandatory for India to bring Trade Mark Laws in accordance with that of TRIPS Agreement.[89] Later on India became party to the Paris Convention for Protection of Industrial Property in the year 1998,[90] which also had the same conditions. Now India has ‘The Trade Marks Act, 1999’, which is in conformity with both the treaties now. It reflected as to how this global administrative laws actually bended the ongoing law prevalent then, in the India.

5.     REFUGEE PROTECTION

The matter pertaining to the migration is important because it denotes the importance of sovereignty. According to which under the sovereign power of the state, state will decide if the non-citizen of the country shall be allowed to enter into the State or be compelled to leave.[91] After second World War, the matter of Refugee got politicized to such extent that UN’s agency ‘The International Refugee Organization (IRO)’ was getting funds only from the 18 countries out of 54 UN Members.[92] It is pertinent to understand that thousands of refugees were resettled under the jurisdiction of IRO.[93]

Later on, IRO was replaced by UN General Assembly to find the permanent solution to Refugees issue. Then The Statute of the United Nations High Commissioner for Refugees (UNHCR) was adopted, which is on 14^th December 1950.[94]

I.            India’s Stance over Refugee Crisis

It is pertinent to note that, India is not a party to the 1951 Refugee Convention or any of its protocol and do not have any national framework for the same.[95] However on contrary it respects the convention and moreover it does grant asylum to the large number of refugees from Neighboring countries.[96] Given below is the figure stating refugee status in India.

6.     CONCLUSION

It is pertinent to understand that, unlike at the times of Cold-War, present time doesn’t witness the bipolar distribution of powers, but all the nations are interconnected and intermingled. The main reason is the decaying of the sovereign attributes, after the introduction of International bodies. Now through collective efforts of nations, International bodies like U.N., can force a Nation to be working under certain standards. 

Considering this aspect, the present paper has first defined the meaning of Global Administrative System, then the meaning of Indian Administrative System because the research is based upon the contrast in between these attributes. List of total five international bodies has been referred, which authors believes to be the most influential bodies in their counterpart functions, which have been also explained in brief.

There are arrays of area which are being controlled by these institutions. Author has enlisted five such areas, which are having substantial effects upon an individual’s life as well as sovereign status of a country, which are (i) Arms Control, (ii) Trade Law, (iii) Environmental Protection, (iv) Intellectual Property Rights and (v) Refugee Protection. These areas of Global Laws are crucial and there was a need to research upon these aspects.

The enforceability part of the said rules, conventions, and treaties comes from Indian Constitution only. Article 51 and Article 253 empowers the Parliament to enforce such international instrument. Aspects like human right violation arising from such enforcement are well within the control of the Supreme Court and if any laws are violative of Part III of the Constitution, i.e., Fundamental Rights, then it will get struck down by the Hon’ble Court.

7.     SUGGESTIONS

It is settled that, most of the times International Treaties which have been ratified is for the welfare of the State as well as the World as a whole. Weapon of mass destruction, environmental pollution, etc are not only dangerous to a State but to the whole world. It is also settled that, enforcement of International treaty most of the times goes to vain because of inaccuracy and feasibility issues pertaining to the process of ‘Verification’. As has been stated Verification is the process in which the country gives the report as to about the implementation of any treaties or rules. Following are the suggestions that Author believes that implementing them will be feasible.

1. To give clear transparency, in related to the said issue, there shall be a Constitutional Amendment in Article 51 and Article 253 of the Constitution through which there shall be a 3^rd party neutral body appointed by the concerned international body to analyze and give the report for the purpose of Verification.
2. Introduction of the clause in bi-lateral or multi-lateral treaties, according to which all the concerned member state shall be subjected to the appointment of the 3^rd party neutral body for the purpose of Verification.
3. Such appointment of 3^rd party neutral body shall not subject to hap hazarding the National Security at stakes.

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