Saturday 21 July 2012

Accountability of Election Commission vis-à-vis free and fair elections

Elections form the backbone of a democracy and the conduct of elections is a very strenuous activity. But for a successful democracy, it is essential that elections to various public posts are held in a very independent and free manner to ensure people’s faith in democracy.

Article 324 of the Constitution of India provides for an independent body of Election Commission to superintend, direct and control the preparation of electoral rolls to the conduct of all the elections in India. The election process starts from the preparation of electoral rolls and delimitation of constituencies and announcement of election schedule and ends when an elected candidate is returned. The Election Commission is made independent by the Constitution, to ensure that the elections held are free and fair. In Indira Nehru Gandhi v Raj Narain, the Apex Court had observed that free and fair elections are the basic structure of the Constitution.

The sanctity of the election process can be vitiated by various attempts of influencing the voter by means of bribery, appealing on religious grounds, publishing false statements, taking assistance of public servants, booth capturing, etc[1]. It is essential that the Election Commission works in an independent manner to ensure that the various electoral offences are avoided or if they occur then they are brought to notice and action is taken against those involved. The corrupt politicians can by wielding their muscle and money power turn the entire democratic process into a sham.

The various safeguards provided under the Constitution for ensuring that the Election Commission works independently without any fear or favor are the security of term and emoluments. The Chief Election Commissioner cannot be removed except by an impeachment proceeding in the same manner as that of a judge of Supreme Court and other election commissioners and regional commissioners cannot be removed without consulting the Chief Election Commissioner.[2] Further, the salaries of the Election Commissioners and their staff cannot be reduced during their term of office and is charged upon the Consolidated Fund of India.

The Election Commission along with the Supreme Court, the Comptroller and Auditor General and the Public Service Commission is the pillar of the Constitution. The independence of these bodies is essential to ensure that the Constitutional structure is able to stand and function. By making the election Commission accountable to any of the organs of the government will be striking at the very foundation of the democratic setup. The independence of the Election Commission is the very base of free and fair elections and a proper functioning democracy.



[1] Section 123 of the Representation of People Act, 1951 and Sections 171 A to 171 I of the Indian Penal Code, 1860
[2] Article 324(5)

Friday 20 July 2012

Rule of law

Rule of law is the basic principle of any free legal system. It states that an individual is not above law, but that law treats all as equal before it. Equality means that similar shall be treated in same fashion in similar circumstances. Rule of Law provides for equality, freedom and accountability.

Dicey’s principle of ‘rule of law’ can be defined as:

(i)                  Absence of arbitrariness in action

(ii)                Equality before law, and

(iii)               Independence of judiciary

In India, the principle of Rule of Law has been provided under Article 14 of the Constitution that states that: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

In the case of ADM Jabalpur v Shivkant Shukla (Habeas Corpus case), an appeal was put forward claiming that the detention orders during Emergency violated the Rule of Law. But this contention did not succeed in the court of law.

However, later in the case of Kesavand Bharti v State of Kerala, the basic structure doctrine was laid down and Rule of Law was declared to be the basic structure of the Constitution.

The principle of equality means that no person shall be subjected to discrimination on arbitrary grounds. Article 14 provides for reasonable classification so that there is no injustice on the part of government in dealing with individuals.

In Indira Nehru Gandhi v Raj Narain, the Supreme Court invalidated Article 329 A (4), that sought to immunize the election to the post of Prime Minister from judicial review as being against the tenets of Rule of Law.

In the case of Som Raj v State of Haryana, it was declared that the absence of arbitrary power is the first postulate of Rule of Law. Absence of arbitrariness means that the principles of equality, justice and fairness are followed.

In Sheela Barse v State of Maharashtra, fairness was declared to be the essence of Rule of Law.

The Rule of Law, thus, stands for the principles of equality, freedom and accountability of administrative action. It stands for individual’s freedom and seeks to protect the individual from any arbitrary administrative action. The principle of Rule of Law implies that the functions of the government in a free society should be exercised in a manner to create conditions in which the dignity of an individual is upheld.

Thursday 19 July 2012

New anti rape law

The cabinet has passed the proposal of enhancing the punishment for rape to life imprisonment. Along with it, the cabinet has passed a resolution to make the Section on rape (section 375 IPC) as gender neutral, making it an offence to sexually assault men as well. This will go a long way in protecting young boys from sexual exploitation. The term ‘rape’ is replaced by the term ‘sexual assault’.

A new section dealing with acid attacks has also been added that makes it a punishable offence attracting a maximum sentence of 10 years along with a fine of Rs 10 lakhs. The Supreme Court had earlier questioned the Union government about what steps are being taken by it to curb the rising menace of acid attacks on women.

Outraging the modesty of a woman under Section 354 IPC is now punishable with a term of 3 years from earlier 1 year.

The victim’s past life and sexual experiences cannot be raised in trying to impeach his/her claim under the law. A sexual assault affects an individual’s life in more than one way and law needs to be sensitive to their trauma.

It is high time that these amendments are made to deal with the rising instances of assault against women. Sexual offences amount to one of the cruelest form of treatment to any individual and there is a need of the hour that stringent steps are taken to control them.

Thursday 5 July 2012

Protection of tribal groups


The Supreme Court on 3rd July declared the forest area inhabited by Jarawa tribes a ‘no go’ zone for tourists or any other person. The court asked the Andaman administration to strictly implement this order and also said that any violation shall be punishable as a contempt of court. The order was taken to stop the exploitation of the tribal men and women by the tourists and forest guards. Videos showing Jarawa women dancing before tourists had prompted the enquiry.

Protection of indigenous groups under the law

The working group on indigenous population was established in 1982 by the sub commission on prevention of discrimination and protection of minorities and it prepared a draft declaration on the rights of indigenous people. The Draft Declaration on the Rights of Indigenous Peoples grants the right to enjoy all human rights, the right to equality and self determination, the right to nationality and the right to special protection during armed conflict. Under the declaration, indigenous people have a right to live in peace and to maintain their distinct culture. They have a right to dignity and to practice their traditions and customs.

International humanitarian law demands that the indigenous groups are protected in their natural habitat along with the preservation of their cultural practices.

Under the Constitution of India, right to movement can be reasonably restricted in tribal zones. The protection and preservation of tribal groups is a valid ground for restricting people from visiting their area.

Wednesday 4 July 2012

Right to follow religion


The Supreme Court upheld the order of the Gujrat High Court to pay compensation to over 500 shrines damaged during the 2002 riots following the Godhra train carnage. The Court refused to entertain the plea of the state government against the High Court’s order.

The right to follow one’s religion is a fundamental right under Articles 25 to 28 of the Constitution of India. Article 25 gives the right to freely profess, practice and propagate religion. The Constitution guarantees that subject to public order, health and morality, all persons have a right to practice their religion.

A shrine or a place of worship is held in high reverence in its religion and will be a part of the essentials of practicing a religion. Further, any act of damaging or destroying any place of worship would amount to hurting the sentiments of the community at large.

Further, under the provisions of Section 295 of the Indian Penal Code, destroying, damaging or defiling any religious place is punishable with an imprisonment for a term up to two years and/or with fine. An essential element under this section is the presence of the mens rea and the fact that the place or object musr be held in high reverence by some religious group.

Acid attacks


Taking into account the rising cases of acid attacks on women, the Supreme Court on 2nd July, has directed the government to take steps to regulate the sale of acid in shops. The court has also asked the union ministry to file an affidavit enumerating the steps taken by it to check the unrestricted sale of acid.

The attack on women by acid not only disfigures their face but also shatters their self confidence. It is a violation of their right to choice, as the attacker is generally a jilted lover or an eve teaser. It is also a violation of her right to movement. With an alarming rise in the crimes against women, it is essential that steps are taken to control it. It is necessary that such acts are condemned by the society and stringent actions are taken against it.

Tuesday 3 July 2012

Judicial control of Administrative Discretion


Discretion means to act according to desire or choose from given options. Administrative discretion means choosing from amongst the various available alternatives but with reference to the rules of reason and justice and not according to personal whims and fancies. The exercise of discretion should not be arbitrary, vague and fanciful, but legal and regular. In India, while exercising discretion, the government has to measure it upon the touchstone of Constitutional provisions of equality, freedom and justice. A government needs discretion for the proper conduct of its functions; however, it should exercise its power well within the Constitutional limits. A government has to act for the benefit of the citizens. It has to ensure equality in its treatment of the citizens. Article 14 provides for the equality before law clause and it seeks that the citizens are not subjected to unjust or arbitrary actions of the government. Article 14 stands against anything that is unreasonable, unjust or arbitrary. Every government action has to pass this test of equality.

An administrative body can itself keep a check upon its arbitrary acts by giving reasons in its reports and orders. In order to successfully defend its actions, an administrative body should give a reasoned order in cases of exercise of discretion. By giving a reasoned order or a speaking order, the authority is able to put forward the various grounds that were taken into consideration during the exercise of its discretion.

Judicial control

The actions of the administration can be checked at the judicial level as well. The Constitution of India has provided the judiciary with the power to review. The courts can keep a check upon any arbitrary exercise of discretionary powers by the administration. The courts can take up cases of discretion upon receiving a cause as well as suo moto. The courts can control it at two stages.

(1)    At the stage of delegation of discretion

The courts exercise control over delegation of discretionary powers to the administration by adjudicating upon the constitutionality of the law under which such powers are delegated with reference to the fundamental rights. The statute conferring the power of discretion upon the government body needs to be constitutional. If the parent statute is ultra vires the Constitution, it cannot confer valid discretionary powers upon the administration. Every law has to pass the test of validity upon the touchstone of Articles 14 and 19 of the Constitution. Thus, if the law confers vague and wide discretionary powers on any administrative authority, it may be declared ultra vires Articles 14, 19 and other provisions of the Constitution.

In State of West Bengal v Anwar Ali, the Supreme Court held that the West Bengal Special Courts Act was invalid on the ground that the expression ‘speedier trials’ conferred wide discretionary powers on the government and may lead to unreasonable classification.

In State of Bihar v K K Mishra, the Supreme Court held Section 144(6) of the Criminal Procedure Code unconstitutional because it invested the administrative authority with blanket discretionary power that was capable of being used arbitrarily resulting in unreasonable restriction upon the freedom of movement.

(2)    Control at the stage of the exercise of discretion

In order to control the arbitrary exercise of discretion, the courts have developed formulations such as:

(i)                  That the authority is deemed not to have exercised its discretion at all. In the case of Purtabpore Company ltd v Cane Commissioner of Bihar, the Supreme Court observed that, the exercise of discretion or its compliance with instructions of some other person amounts to failure to exercise the discretion altogether.

(ii)                That the authority has not exercised its discretion properly. Improper exercise of discretion includes ‘taking irrelevant consideration into account’, ‘acting for improper purpose’, ‘asking wrong questions’, ‘acting in bad faith’, ‘neglecting to take into consideration relevant factors’ or ‘acting unreasonably’.

In the case of R D Shetty v International Airport Authority, the Supreme Court observed that the exercise of discretion must not be arbitrary, fanciful and influenced by extraneous considerations. The choice must be dictated by public interest and must not be unprincipled or unreasoned.

Thus, administrative discretion has to be exercised with great caution, keeping in mind the principles laid under the chapter on fundamental rights in the Indian Constitution. If the administrative authority fails to observe due caution and acts unreasonably, its actions are bound to be struck down on the same ground. An administrative authority cannot act against the public policy. It has to act in a just and reasonable manner.

Principles of Natural Justice


The principles of natural justice state that there should be fairness in the adjudicatory process. It stands against all forms of unreasonable, biased actions. The rule of natural justice is that a reasonable person should feel that justice has been done. Where no other rules of procedure are laid down, in all judicial or quasi-judicial matters, it is required that a minimum of the rules of natural justice are observed. These provide for the minimum of procedural safeguards to protect the interests of the society. The principle of natural justice states that even the party against whom the decision has been taken should feel that justice has been done.

The rule of natural justice is based upon two principles:

(1)    Rule against bias

(2)    Rule of fair hearing



(1)    Rule against bias

The rule against bias is based upon the principle of ‘nemo debet ease judex in propria causa’ that means that no man shall judge in his own case. The principle of rule against bias is formulated upon the basic tenet that justice should not only be done but seen to be done. It is not important whether there has been any bias or not. What matters is that any reasonable man should not feel that there are chances of bias. In deciding such matters, the court sees if there are any likely grounds that would make a reasonable man feel the presence of bias. Bias can be of following kinds:

(a)    Personal bias – when there is some relationship between one of the parties and the deciding authority that might incline him to decide in favour or against one of the parties.

(b)   Pecuniary bias – if there is any kind of financial interest, it would vitiate the administrative action.

(c)    Subject matter bias – if the deciding officer is involved in the subject matter concerned, it raises the apprehension of his being biased.

(d)   Departmental bias – it happens if the functions of the prosecutor and the deciding officer are combined in the same department. A manner of reducing it would be the instituting a different department of hearing officers.

(e)   Preconceived notion bias – it is an inherent problem of the administrative action, because no human being can sit and say that he has no prior opinion about a thing.

(f)     Bias on account of obstinacy – bias may accrue if the deciding officer does not like to take ‘no’ for an answer.



Doctrine of necessity

When there is no other judge available, the rule against bias may be ignored. In cases of emergency, requiring a quick action, even a biased judge can take the decision and in such cases, it would not vitiate the action.



(2)    Rule of fair hearing

Rule of fair hearing is based upon the maxim ‘audi alteram partem’ that means hear the other side. It means that no man shall be condemned unheard. The person accused should be given ample opportunity to present his side of the story. A man is ‘innocent until proved guilty’ and he has every right to prove himself ‘not guilty’.

The rule of fair hearing provides that opportunity is given to the accused person of presenting his case and rebutting adverse evidence. The essentials of this rule are as follows:

(a)    Right to notice – the notice of the time, place of hearing, the legal authorities and the charges levied has to be provided well in advance

(b)   Right to know the evidence against him – the party has a right to inspect the evidence against him. He may be allowed to inspect all files and take notes.

(c)    Right to present case and evidence – reasonable opportunity should be provided to the party to present his case.

(d)   Right to rebut adverse evidence – the party has got a full right to rebut the evidence used against him. He can do this by two means:

(i)                  Cross examination

(ii)                Legal representation

(e)   No evidence should be taken at the back of other party – ex parte evidence violates the principle of fair hearing as the party does not get a chance to know what is produced against him.

(f)     Report of the enquiry to be shown to the other party – any report of enquiry undertaken must be shown to the party.

(g)    Reasoned decisions or speaking orders – reasoned decisions are the most effective modes of dispensing the apprehension of bias.

(h)   Institutional decision or the one who decides must hear – the person adjudicating should be present at the time of taking evidence and cross examination. Otherwise it would vitiate the administrative action.

(i)      Rule against dictation – the authority deciding should not act according to the orders of his superiors.

(j)     Financial incapacity to attend the enquiry – the financial incapacity of a party in putting evidence should not come in way. Evidence and witnesses should be brought at the expense of the government to facilitate fair hearing.

(k)    Decision post haste – the decision should not be taken in haste. Reasonable time should be spent in hearing the evidence and coming to a conclusion.

Exceptions to the rule of natural justice

The rule of fair hearing can be ignored in certain cases like:

(a)    Emergency – if a prompt action has to be taken where it is not expedient to hear all evidence, the rule may be dispensed with.

(b)   Confidentiality – confidential documents need not be shown to a party.

(c)    Purely administrative matters – in purely administrative actions, it may be expedient to leave these rules to provide order.

(d)   Impracticability – the application of the rules are not feasible in cases of administrative impracticability.

(e)   Interim preventive action – if the order is an interim order and not the final decision, thr rule may be avoided.

(f)     Legislative action – legislative actions are not subject to the rules of natural justice.

(g)    Where no right of the person is infringed – when no statutory or common law right is infringed, the application of the principle is unnecessary.

(h)   Statutory exception or necessity – cases requiring a quick action, where only one judge is available, even a biased judge can take the decision and in such cases, it would not vitiate the administrative action.

(i)      Contractual agreement – termination of an agreement does not attract the principles of natural justice.

(j)     Useless formality theory – where there is an undisputed fact and only one consequence would flow from enquiry, the rule may be avoided.

Thus, the rules of natural justice state that an administrative action should be free from all forms of arbitrariness. It provides that there should be a sense of fairness and justice in all administrative actions.

Monday 2 July 2012

Separation of powers


The legislature, the executive and the judiciary form the three organs of the government. Each organ has got a separate function assigned to it. The principle of separation of powers separates the legislature, the judiciary and the executive body from each other. Broadly, the principle means that:

(i)                  One person shall not be part of more than one organ of the government

(ii)                The three organs will not interfere in the work of each other

(iii)               Each organ shall perform the duty assigned to it.

In Great Britain, there is no separation of powers and the three organs overlap each other. In the United States of America, there is a strict partitioning in the functions of the three organs. The Indian Constitution under Article 50 provides for the separation of powers, however, this separation is very loosely formulated. Article 50 states that: The State shall take steps to separate the judiciary from the executive in the public services of the State. In the Indian context, it can be said that there is a quasi separation of powers.

However, the Supreme Court has observed that the separation of powers is the basic structure of the Constitution. Though the judiciary has the power to review the laws made by the legislature and also declare them ultra vires if they violate the provisions of the Constitution, it cannot take away the legislative power.  In this way, the judiciary acts as a checks and balance for controlling the legislatures.

Similarly, the judges of the High Court and the Supreme Court are appointed by the President, while the President is bound to act on the advice of the Council of Ministers headed by the Prime Minister. The judges of the Supreme Court and High Courts and the President can be impeached by the Parliament. Still, the Constitution has made provisions for maintaining the independence of judiciary.

So it can be said that while the Constitution has laid down certain provisions for the separation of powers, it has still provided certain checks and balances so that neither overrides its jurisdiction. The separation in India is not complete, but acts in a manner that each organ complements and supplements the other.

Forced labor and human trafficking


Forced labour and traffic in human is a global concern regarding human rights violation. Forced labour constitutes a violation of the fundamental freedom of man and is against the principles laid down in the UN Charter and the Universal Declaration of Human Rights. Article 4 of the Declaration provides that ‘no one shall be held in slavery or servitude; slavery and slave trade shall be prohibited in all their forms.’

The Convention for the Abolition of Forced Labour provides that each member of the ILO that has ratified it shall undertake to suppress and not make use of any form of forced or compulsory labour.

Traffic in human beings for the purpose of prostitution is incompatible with the dignity and worth of human person. Under the Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, the State Parties agreed to punish any person who sells or procures any person for prostitution.  

Forced labour and human trafficking under the Indian law

Article 23 of the Constitution provides that: Prohibition of traffic in human beings and forced labour

(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law

 (2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them

Article 23 clause (1) prohibits begar and all forms of forced labour.

Section 374 of the Indian Penal Code provides that whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

In Bandhua Mukti Morcha v Union of India, the Supreme Court directed that necessary working conditions be made available to the victims of exploitation.

If the wages paid are less than the minimum amount, it would amount to unlawful labour. In People’s Union for Democratic Rights v Union of India, the Apex Court observed that even if remuneration is paid, the labour supplied by a person would be hit by Article 23, if it is forced labour, meaning that it is supplied not voluntarily but as a result of force or compulsion arising from hunger, poverty, want and destitution.

Article 23 also prohibits the traffic of human beings. The term ‘traffic in human beings’ means the act of buying and selling of women and children for immoral or other purposes. It is prohibited under the Constitution of India and is also a crime under the Indian Penal Code, 1860.

The issue of traffic in human beings plays a very serious problem in the Indian subcontinent.

Human traffic under the Indian Penal Code

Importation of girls (Section 366 B) – when a girl below the age of 21 years is imported with the intent of forcing or seducing her to illicit intercourse with another person, it is punishable with imprisonment which may extend up to 10 years and with fine.

Section 370 provides that: Whoever imports, export, removes, buys, sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as slave, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.

Section 371 further lays down that Whoever habitually imports, exports, removes, buys, sells traffics or deals in slaves, shall be punished with imprisonment for life, or with imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine.

Section 372 deals with the selling of minors for prostitution. It provides that: Whoever sells, lets to hire, or otherwise disposes of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.

Section 373 deals with buying of minors for the purpose of prostitution. Whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, of knowing it to be likely that such person will at any age be employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

In Vishal Jeet v Union of India, it was held that traffic in human beings includes devadasis.

The Suppression of Immoral Traffic in Women and Girls Act, 1956, deals with the prevention of sexual exploitation for commercial purposes. It makes the act of procuring, inducing or taking away any woman with the intention to exploit for the purpose of prostitution an offence.

Thus, the issue of forced labour and human trafficking is a very serious problem, requiring strict legal provisions at both the international as well as domestic levels. Besides, it requires strict implementation of legislative measures as well. The problem of human trafficking requires international cooperation for curbing it.