Introduction

Delegated legislation, also known as secondary legislation or subordinate legislation, refers to the
granting of law-making powers by the higher authority (usually the legislature) to a lower authority, such
as the executive or administration. This delegation allows the lower authority to enact specific laws and
regulations under the authority and framework provided by the parent statute.

While the delegation of powers is necessary for efficient governance, it is crucial to have control
mechanisms in place to ensure that these delegated powers are exercised appropriately and within the
limits set by the parent statute and the constitution. The three primary control mechanisms for
delegated legislation are parliamentary control, judicial control, and executive control.

Each of these mechanisms serves as a check and balance to maintain the legality, constitutionality, and
procedural compliance of the laws enacted through delegated legislation. This ensures that the
delegated legislation is in line with the intent of the legislature, respects fundamental rights, and
upholds the rule of law.

Types of Control on Delegated Legislation

Parliamentary control over delegated legislation involves the responsibility of the Parliament to ensure
that the powers transferred to the executive are exercised appropriately and without abuse of authority.

Judicial control over delegated legislation is an essential form of control in most countries. It allows the
courts to review the validity of delegated legislation. Judicial review is justified based on the
constitutional obligation of the courts to uphold the rule of law.

The judiciary ensures that the laws made by Parliament are not inconsistent with the constitution and
that delegated legislation falls within the limits set by both the parent statute and the constitution.
Judicial control is considered effective because courts have the power to invalidate a law if it is found to
be ultra vires (beyond the scope) of the parent statute or the constitution.

Procedural and executive control refers to the rules and procedures that may be established by the
legislature to govern the exercise of delegated powers by the executive. These controls include pre-
publication and consultation with expert authorities, publication of delegated legislation, and laying of
rules before the legislature.
Judicial Control on Delegated Legislation
When the parent act is ultra vires the constitution: If the parent act itself violates the provisions of the
constitution, it is considered void and unconstitutional. In such cases, any delegation of legislative
powers made under the parent act is also rendered void.

The courts have the authority to strike down both the parent act and the delegated legislation if they are
found to be in violation of constitutional provisions.

Delegated legislation not authorized by the enabling act: Delegated legislation derives its authority from
the enabling act, which sets out the scope and limits of the delegated powers. If the delegated legislation
exceeds the authority granted by the enabling act, it can be invalidated by the courts.

The courts ensure that the delegated legislation remains within the boundaries established by the
enabling act and does not go beyond the powers conferred upon the delegate.

Delegated legislation is ultra vires the constitution: In certain cases, the parent act may be constitutional,
but the delegated legislation made under it may violate the constitution. For example, if the delegated
legislation infringes on fundamental rights or contravenes other constitutional provisions, it can be
struck down by the courts.

The courts examine the constitutionality of the delegated legislation separately from the parent act and
ensure that it does not exceed the limits imposed by the constitution.

Delegated legislation is ultra vires the parent act: The validity of delegated legislation can be questioned
if it is found to be beyond the scope of the powers granted by the parent act. The courts examine
whether the delegated legislation stays within the boundaries set by the parent act. If the delegated
legislation exceeds the authority conferred by the parent act, it can be deemed ultra vires and
invalidated by the courts.

Delegated legislation is ultra vires any general law or rule of law: Delegated legislation can be challenged
if it contradicts or renders an existing law unlawful. The courts ensure that delegated legislation does not
make lawful what is otherwise unlawful.

If the delegated legislation is found to be in conflict with established general laws or the principles of the
rule of law, it can be declared ultra vires and struck down by the courts.
Unreasonableness: Generally, a statute cannot be challenged on the grounds of unreasonableness.
However, if delegated legislation is considered unreasonable based on the circumstances of a particular
case, it may be invalidated by the courts.

The concept of reasonableness depends on the facts, context, and impact of the legislation, and the
courts have the authority to assess the reasonableness of the delegated legislation in question.

Mala fide (bad faith): Challenging delegated legislation on the grounds of bad faith or ulterior motives is
challenging to prove. However, in rare cases where there is strong evidence of bad faith or improper
motives, it can be a basis for invalidating the legislation. Courts may examine the intentions and actions
of the delegatee to determine if there was a malicious or improper purpose behind the enactment of the
delegated legislation.

Excessive delegation: Excessive delegation refers to a situation where the delegation of law-making
power goes beyond what is considered reasonable and necessary. While the courts in India rarely strike
down delegated legislation on the grounds of excessive delegation, excessive delegation can be subject
to criticism. It is generally accepted if it is expressly or implicitly provided for in the enabling act.

Sub-delegation: The general rule is that a delegate cannot re-delegate its authority. However, in some
countries with written constitutions, sub-delegation may be permitted if there is a specific provision
allowing for it. In such cases, the validity of an act carried out under sub-delegation can be questioned if
it is found to be ultra vires the enabling act or the constitution.

Non-compliance with court orders: If the government fails to comply with a court order regarding
delegated legislation, the court has the power to invalidate that particular act. Courts rely on the
principle of judicial review to ensure that government actions and legislation align with their judgments
and orders. Failure to comply with a court order may result in the delegated legislation being declared
invalid.

Non-application of mind: Delegated legislation can be invalidated if it is evident that the delegatee did
not consider the relevant facts and circumstances while exercising their powers. The courts examine
whether the delegatee has applied their mind to the issues at hand and made a reasonable and
informed decision. If it is found that the delegatee did not adequately consider the relevant factors, the
delegated legislation may be invalidated on the grounds of non-application of mind.

These control mechanisms play a crucial role in ensuring that delegated legislation remains within the
legal boundaries, respects the constitution, and upholds the principles of legality and fairness. The courts
act as guardians of the rule of law and exercise their authority to scrutinize and, if necessary, invalidate
delegated legislation that goes beyond its prescribed limits or violates fundamental legal principles.

Cases on Judicial Control over Delegated Legislation

Kruse v. Johnson: In this case, the United Kingdom court established criteria to determine the
reasonableness of by-laws. The court held that by-laws would be considered unreasonable if they were
partial or unequal, manifestly unjust, disclosed bad faith, or involved oppressive interference with the
rights of the people without any justifiable reason. This case highlights the court’s role in reviewing and
striking down by-laws that do not meet these standards of reasonableness.

Delhi Law Act Case: In this case, the power was granted to the Central Government through an act to
repeal pre-existing laws. However, the court held that the exercise of such power was ultra vires,
meaning it went beyond the scope of authority granted by the law. The court’s decision in this case
emphasizes its role in ensuring that the executive branch acts within the limits set by the law and does
not exceed its delegated powers.

Chintaman Rao’s Case (Chintaman Rao v State of Madhya Pradesh): This case dealt with the prohibition
of making bidis (hand-rolled cigarettes) during the agriculture season by a Deputy Commissioner. The
court held that this prohibition was in violation of Article 19(1)(g) of the Indian Constitution, which
guarantees the right to practice any profession, occupation, or trade. The court’s decision showcases its
role in reviewing executive actions and striking them down if they infringe upon fundamental rights
enshrined in the constitution.

Chandran v. R: In this case, the court emphasized that if the power to make by-laws is entrusted to the
legislature, it must be exercised within the limits defined by the legislature. If the by-laws exceed these
limits, they can be struck down. This case underscores the court’s authority to review and invalidate
legislative decisions, including by-laws, if they go beyond the prescribed authority or violate any legal
principles.

These cases demonstrate the judicial control over the executive branch’s actions and decisions. The
judiciary plays a vital role in ensuring that executive actions align with constitutional provisions, statutory
limits, and principles of reasonableness and fairness. By reviewing executive actions and striking down
those that are deemed unconstitutional, unreasonable, or exceeding the delegated authority, the courts
act as a check on the executive branch and protect the rights and interests of the citizens.

The Doctrine of Ultra Vires is a fundamental rule of Company Law. It

states that the objects of a company, as specified in its Memorandum of Association, can be
departed from only to the extent permitted by the Act. Hence, if the company does an act, or
enters into a contract beyond the powers of the directors and/or the company itself, then the said
act/contract is void and not legally binding on the company.

The term Ultra Vires means ‘Beyond Powers’. In legal terms, it is applicable only to the acts
performed in excess of the legal powers of the doer. This works on an assumption that the
powers are limited in nature. Since the Doctrine of Ultra Vires limits the company to the objects
specified in the memorandum, the company can be:

 Restrained from using its funds for purposes other than those specified in the
Memorandum
 Restrained from carrying on trade different from the one authorized.

The company cannot sue on an ultra vires transaction. Further, it cannot be sued too. If a
company supplies goods or offers service or lends money on an ultra vires contract, then it
cannot obtain payment or recover the loan.

However, if a lender loans money to a company which has not been extended yet, then he can
stop the company from parting with it via an injunction. The lender has this right because the
company does not become the owner of the money as it is ultra vires to the company and the
lender remains the owner.

Further, if the company borrows money in an ultra vires transaction to repay a legal loan, then
the lender is entitled to recover his loan from the company.

Sometimes an act which is ultra vires can be regularized by the shareholders of the company. For
example,

 If an act is ultra vires the power of directors, then the shareholders can ratify it.
 If an act is ultra vires the Articles of the company, then the company can alter the
Articles.
 Remember, you cannot bind a company through an ultra vires contract. Estoppel,
acquiescence, lapse of time, delay, or ratification cannot make it ‘Intravires’.

Summing up the Doctrine of Ultra Vires

An act, legal in itself, but not authorized by the object clause of the Memorandum of Association
of a company or statute, is Ultra Vires the company. Hence, it is null and void.
An act ultra vires the company cannot be ratified even by the unanimous consent of all
shareholders.
If an act is ultra vires the directors of a company, but intra vires the company itself, then the
members of the company can pass a resolution to ratify it.
If an act is Ultra Vires the Articles of Association of a company, then the same can be ratified by
a special resolution at a general meeting.

What is the doctrine of separation of powers?

Separation of powers is the division of the legislative, executive, and judicial functions of government
among separate and independent bodies.

 The Legislature makes laws, the Executive puts those laws into effect, and
the Judiciary administers justice by interpreting the law and ensuring that the law is upheld.

 The purpose of separation is to limit the possibility of arbitrary excesses by the government.

 Separation of powers also prevents misuse of power or accumulation of power in a few hands,
which thereby safeguards the society from arbitrary and irrational power of the state.

What is the origin and evolution of the doctrine of separation of powers?

 The first modern formulation of the doctrine of separation of power was given by the French
political philosopher Montesquieu in The Spirit of Laws, 1748. Inspired by the English
constitution, Montesquieu argued that liberty is most effectively safeguarded by the separation
of powers.

 Later, The United States Constitution gave the doctrine of separation of powers in substance for
the very first time where its provisions

o Article I granted powers to the legislature.

o Article II gave executive power to the President.

o Article III created an independent judiciary.

 In this spirit, the Constituent Assembly, while drafting the Indian Constitution, debated on
inserting the provision ‘There shall be complete separation of powers as between the principal
organs of the State-the Legislative, the Executive, and the Judiciary’ as one of the Directive
Principles of the State Policies.

 Finally, Article 50 was inserted, which gave for the State to take steps to separate the Judiciary
from the Executive in the public services of the State.

What are the provisions pertaining to the separation of powers between the three organs of state in
India?
The Constitution of India has various implicit provisions for the separation of powers among the
legislature, the executive, and the judiciary. However, in most cases, the separation is not water-
tight, and there are instances of overlap in functions to ensure checks and balances.

Legislature and Executive

Separation of powers Functional overlap

 Constitution has separate provisions  Article 75: India has a Parliamentary form of
for establishing: government, and every Minister should be a
member of the Parliament.
o Article 79: The Parliament as
the legislative body.  Article 53 and Article 79:The President is vested
with the executive power of the union, and also,
o Article 74: Article The council
he/she is an integral part of Parliament.
of ministers with the Prime
Minister as head of the Real  Article 123: The President may
Executive. promulgate ordinances when the Parliament is
not in session. Thus, even the executive can
 Also, there are distinct provisions for
legislate in the form of an ordinance in India.
their functioning:
 In India, delegated legislation is allowed, where
o Parliament (Article 107-117)
the Parliament can delegate its legislative powers
o Council of Ministers (Article to the Central or the State Governments for the
74 read with Article 53) purpose of making rules.

Table on separation of powers between Legislature and Executive

Judiciary and Executive

Separation of powers Functional overlap

 Article 50: State shall take  Article 72: In India, the President's clemency
steps to separate the judiciary powers overlap with the judicial functions.
from the executive in the
 Article 323a and Article 323b: Tribunals established
public services of the state.
dispense justice in India. Tribunals consist of both
 Accordingly, the Parliament judicial as well as executive members.
enacted the Criminal
 The District Magistrate, while acting as a Returning
Procedure Code 1973, which
officer, acts in a quasi-judicial capacity where he/she
separated the judiciary and the
must scrutinize the nomination papers and then decide
executive.
  Article 361: The President and whether the candidate is fit to contest.
the Governor enjoy immunity
from court proceedings.

Table on separation of powers between Judiciary and Executive

Judiciary and Legislature

Separation of powers Functional overlap

 Article 121: No discussions shall take  Article 61: The parliament has quasi-judicial
place in Parliament with respect to the powers during the Presidential Impeachment
conduct of any Judge of the Supreme process.
Court or of a High Court in the
 The judiciary may take legislative functions
discharge of his/her duties.
under certain circumstances, which are dubbed
 Article 122: Courts not to inquire into as Judicial activism or Judicial overreach.
proceedings of the Parliament.
o Example: The Vishaka Guidelines on
sexual harassment in the workplace.

o People’s Union for Democratic Rights

v. Union of India (1982) case, which
gave for Public Interest Litigation( PIL).

Table on separation of powers between Judiciary and Legislature

What are the various judicial pronouncements on the doctrine of separation of powers in India?

 Ram Jawaya Kapoor vs State of Punjab (1955): It was held that the Indian Constitution has not
indeed recognized the doctrine of separation of powers in its absolute rigidity, but the functions
of the different parts or branches of the government have been sufficiently differentiated.

 Golak Nath vs State of Punjab (1967): In this case, the judges observed that the three organs of
the government are expected to exercise their functions within their limits and keeping in mind
certain encroachments assigned by the Constitution.

 Indira Gandhi vs Raj Narain (1975): The Supreme court invalidated a clause of Article 329A
inserted to immunize the election dispute to the Office of the Prime Minister from any kind of
judicial review. In this case, It is held that the separation of powers is a part of the Basic
structure.
  Kartar Singh vs State of Punjab (1994): It was stated that the function of the legislature is to
make the law, the executive is to implement the law, and the judiciary to interpret the law within
limits set down by the Constitution.

What are the issues associated with judicial legislation in India?

The term "judicial legislation" refers to the law pronounced, proclaimed, and declared by the judiciary,
specifically the Supreme Court. This type of law is sometimes called "judicial law" or "Judge-made law."

 The Supreme Court in Rattan Chand Hira Chand v. Askar Nawaz Jung (1991) stated, “The
legislature often fails to keep pace with the changing needs and values nor is it realistic to expect
that it will have provided for all contingencies and eventualities. It is, therefore, not only
necessary but obligatory on the courts to step in to fill the lacuna”.

 Some of the instances of judicial legislation include-

o The collegium system out of The Second Judges case (1993) and the Third Judges case
(1998).

o Legalizing passive euthanasia in Aruna Shanbaug v. Union of India, (2011).

o ‘None Of The Above’ (NOTA) in elections as a Right in People’s Union for Civil Liberties
(PUCL) case 2013.

 The Indian Constitution does not strictly follow the doctrine of separation of powers, but the
functions of different parts of the government have been differentiated.

 The judiciary is not supposed to indulge in lawmaking, but there are instances where judicial
legislation is justified.

 Judicial creativity can be justified in certain situations, such as when there is a peculiar issue at
hand or when laws enacted need to fulfill the needs of the people.

 Judges make the law when there is a legal vacuum or no express principles of law. The impact of
judge-made law can create credibility and reliability, but it can also create a sense of uncertainty
and unwanted strife between the organs of the State.
Natural Justice Principles: A Foundation for Fairness and Equity

Natural justice principles constitute the cornerstone of fair and impartial decision-making processes.
Embedded within legal frameworks and ethical considerations, they safeguard individual rights and
uphold the rule of law, ensuring a just and equitable society. This comprehensive exploration delves into
the depths of three key natural justice principles: Rule against Biasness, Audi Alteram Partem, and
Disclosure of Materials, analyzing their concepts, implications, and real-world applications.

1. Rule Against Biasness: Ensuring Impartiality

The rule against biasness, also known as nemo iudex in causa sua (no one should be a judge in their own
cause), forms the bedrock of fair decision-making. It prohibits individuals with a personal interest or
prior involvement in a matter from adjudicating it. This principle aims to prevent biased or prejudiced
decisions and ensure fairness for all parties involved.

Types of Bias:

 Personal Bias: This arises from personal relationships, friendships, or past conflicts with parties
involved in the case. For example, a judge who has a close relationship with one of the parties in
a case may be perceived as biased, even if they are not consciously trying to favor that party.

 Pecuniary Bias: This occurs when a decision-maker stands to gain financially from a particular
outcome. For example, a member of a planning commission who owns property in an area that
would be affected by a proposed development may be biased in favor of the development.

 Prejudiced Bias: This exists when the decision-maker has preconceived notions based on factors
like race, religion, gender, or social status. For example, a judge who holds racist views may be
biased against defendants of color, even if they are innocent.

 Institutional Bias: This stems from the inherent structure or policies of an organization that favor
one group over another. For example, a police department that has a history of racial profiling
may be biased against people of color, even if individual officers are not intentionally racist.

 Unconscious Bias: This is implicit prejudice that can influence decisions without the decision-
maker's awareness. For example, a teacher may unconsciously favor male students in class, even
if they are not aware of doing so.

Impact of Bias:

Bias can have a devastating impact on decision-making processes, leading to:

  Unfair Rulings: Individuals may be unfairly penalized or denied opportunities due to biased
decisions.

 Discrimination: Bias can lead to the systemic discrimination of certain groups of people.

 Erosion of Public Trust: When people believe that the system is biased, they lose trust in it.

Examples:

 Dimes v. Grand River Dam Authority (1941): The US Supreme Court ruled that a board of
directors with a financial stake in a decision could not be impartial and its decision was
invalidated. This case highlights the importance of preventing pecuniary bias.

 Shankarlal v. State of Madhya Pradesh (1971): The Supreme Court of India disqualified a judge
who had previously expressed an opinion on a matter from hearing the case due to potential
bias. This case underscores the importance of avoiding prejudged bias in decision-making.

2. Audi Alteram Partem: Guaranteeing a Fair Hearing

Audi alteram partem, meaning "hear the other side," is a fundamental principle that ensures the right to
a fair hearing. It mandates that before any decision is made that could adversely affect an individual's
rights, they must be provided with proper notice of the allegations against them and an opportunity to
be heard.

Elements of a Fair Hearing:

 Clear and timely written notice outlining the allegations, potential consequences, and available
options. This ensures that individuals are informed about the situation and understand the
potential outcomes.

 The right to be represented by legal counsel. Legal representation can help individuals navigate
the legal system and ensure that their rights are protected.

 The opportunity to present one's case and arguments. Individuals should be allowed to present
their side of the story and explain why they believe they should not be penalized or denied a
particular opportunity.

 The right to cross-examine witnesses and challenge evidence presented against them. This
allows individuals to test the credibility of the evidence and challenge any inaccuracies or
misleading information.

 A decision made based on all available evidence and relevant arguments. Decision-makers
should consider all relevant information before making a final decision.

Impact of Audi Alteram Partem:

This principle protects individuals from:

 Arbitrary and Unfair Decisions: It ensures that decisions are made based on evidence and
not ...not on whim, personal prejudice, or bias.

 Denial of Justice: It provides individuals with a chance to be heard and defend themselves
against accusations.

 Erosion of Public Trust: By upholding fairness and transparency in decision-making, it builds

public trust in the system.

Examples:

 Ridge v. Baldwin (1964): The House of Lords established the audi alteram partem principle
in English law, holding that dismissing a doctor without a hearing was a violation of natural
justice. This case highlights the importance of providing a fair hearing, even in administrative
settings.
 Board of Regents v. Roth (1972): The US Supreme Court ruled that firing a non-tenured
professor without a hearing violated due process and property rights. This case emphasizes
the application of audi alteram partem in academic institutions and employment settings.

3. Disclosure of Materials: Transparency in Decision-Making

 Disclosure of materials ensures that individuals have access to all relevant materials that will
be used in the decision-making process. This includes evidence, witness statements, legal
arguments, and other pertinent information.

Impact of Disclosure of Materials:

 Promotes Transparency and Fairness: By providing access to relevant information,

individuals can understand the basis for the decision and challenge any inaccuracies or
misleading information.
 Reduces the Risk of Bias: When individuals have access to all relevant information, it is less
likely that they will be unfairly judged based on incomplete or inaccurate information.
 Increases Public Trust: Transparency in decision-making fosters public trust in the system.

Examples:

 Campbell v. United States (1968): The US Supreme Court held that the government must
disclose material that is essential to the defense. This case highlights the importance of
disclosing exculpatory evidence in legal proceedings.
 Kanda v. Government of India (1986): The Supreme Court of India ruled that individuals
have a right to inspect documents relevant to their case. This case underscores the
application of the disclosure principle beyond legal contexts, ensuring transparency in
administrative decision-making.

Conclusion: Natural Justice for a Just Society

Natural justice principles are not mere legalistic formalities; they serve as the cornerstone of a just
and equitable society. By safeguarding individual rights, preventing bias, and ensuring fair hearings,
 these principles create a framework for responsible decision-making that promotes transparency,
accountability, and public trust. Recognizing and upholding these principles is crucial for building a
society where everyone is treated with dignity and respect, and where justice prevails.

Further Exploration:

 Case law studies: Delving deeper into specific legal cases that have applied the principles of
natural justice.
 Comparative analysis: Exploring how different legal systems around the world implement
and interpret natural justice principles.
 Ethical considerations: Examining the ethical implications of applying natural justice
principles in various contexts.
 Challenges and solutions: Investigating the challenges in upholding natural justice principles
and exploring potential solutions to overcome those challenges.

By engaging in deeper exploration and ongoing dialogue, we can continue to strengthen the
foundations of natural justice and ensure that it remains a powerful force for good in our world.

Tortious Liability: An Overview and the Case of Peninsular & Oriental Navigation v/s Secretary of
State

Tortious liability refers to the legal responsibility of a person or entity to compensate another person for
harm or damage caused by their wrongful act or omission. It arises from the breach of a duty owed to
the injured party, leading to actionable damages. Tortious liability encompasses a wide range of
situations, including negligence, trespass, nuisance, and product liability.

Essential Elements of Tortious Liability:

 Duty of Care: The defendant must have owed a legal duty of care to the plaintiff. This duty can be
established through various factors, such as the relationship between the parties, the
foreseeability of harm, and the public interest.

 Breach of Duty: The defendant must have breached the duty of care owed to the plaintiff. This
involves failing to act as a reasonable person would in the same circumstances.

 Causation: The defendant's breach of duty must have caused the plaintiff's injury or damage.
This requires establishing a causal link between the breach and the harm suffered.
  Damages: The plaintiff must have suffered actual and recognizable damage. This can include
physical injuries, economic losses, and emotional distress.

Case Study: Peninsular & Oriental Navigation v/s Secretary of State (1861)

This landmark Indian legal case established the principle of vicarious liability for the government in non-
sovereign functions.

Facts of the Case:

 A servant of the Peninsular & Oriental Navigation Company (P&O) was driving a carriage drawn
by the Company's horses on a public highway in Calcutta.

 The servant's negligence in driving resulted in a collision with another carriage, causing injury to
the passengers.

 The injured passengers filed a lawsuit against P&O, claiming damages for their injuries.

Issue:
The key issue in the case was whether P&O could be held vicariously liable for the negligent act of its
servant.

Holding:
The Supreme Court of India held that P&O was vicariously liable for the servant's negligence. The Court
reasoned that the maintenance of the dockyard was a non-sovereign function and that the government
was liable for the tortious acts of its servants while performing such functions.

Significance of the Case:

The Peninsular & Oriental case established the following important principles:

 Vicarious Liability of the Government: The government can be held vicariously liable for the
tortious acts of its servants while performing non-sovereign functions.

 Distinction between Sovereign and Non-Sovereign Functions: The Court drew a distinction
between sovereign and non-sovereign functions, limiting the government's immunity from tort
liability to its sovereign functions.

 Employer Liability for Employee Negligence: The case reaffirmed the principle of employer
liability for the negligent acts of employees committed within the scope of their employment.

Impact of the Case:

The Peninsular & Oriental case has had a significant impact on the development of tortious liability law
in India. It has been cited in numerous subsequent cases and has helped to clarify the scope of
government liability and employer liability for employee negligence. The case serves as a crucial
reference point for understanding the application of vicarious liability principles in India and their
implications for various entities, including the government.

Conclusion:

Tortious liability plays a vital role in protecting individuals from harm and ensuring that they are
compensated for losses caused by the wrongful acts of others. The Peninsular & Oriental case stands as a
significant milestone in the evolution of tortious liability law, contributing to the development of
principles that hold governments and employers accountable for the actions of their servants and
employees.

Kinds of Writs and Res Judicata Applicability

Writs are extraordinary legal remedies issued by a court to enforce fundamental rights or to correct
grave errors of law. They are used in situations where other legal remedies are inadequate or
unavailable.

Res judicata, meaning "the matter has been adjudicated," is a legal principle that prevents relitigating the
same issue between the same parties once a final and conclusive judgment has been rendered. It aims
to uphold the finality of judgments and prevent unnecessary litigation.

Kinds of Writs:

1. Habeas Corpus: This writ is used to challenge the unlawful detention of a person. It compels the jailer
to produce the detainee before the court and justify their detention.

2. Mandamus: This writ directs a public official or body to perform a legal duty that they have failed to
perform. It can be used to enforce administrative decisions or compel the issuance of a license or permit.

3. Prohibition: This writ prohibits a lower court or tribunal from exceeding its jurisdiction or acting
illegally. It is used to prevent a court from hearing a case that it is not legally authorized to hear.

4. Certiorari: This writ removes a case from a lower court to a higher court for review. It is used to
correct errors of law or procedure made by the lower court.

5. Quo Warranto: This writ challenges the right of a person to hold a public office. It can be used to
remove a person from office if they were not lawfully elected or appointed.

When Res Judicata Does Not Apply: Exceptions to the Finality Rule

The principle of res judicata, meaning "a matter already settled," generally prevents relitigating the same
issue between the same parties after a final judgment has been rendered. However, there are important
exceptions to this rule where res judicata may not apply, allowing for the possibility of revisiting a
previously decided case.

Here are some key situations where res judicata may not be applicable:
1. Error of Law: If a court committed a clear and manifest error of law in its previous judgment, res
judicata may not apply. This allows for the correction of judicial mistakes and ensures that justice is
served.

Examples:

 A court misinterprets a relevant statute or legal precedent.

 The court fails to consider all of the relevant evidence.

 The court applies the wrong legal standard.

2. Fraud or Misrepresentation: If the previous judgment was obtained through fraud or

misrepresentation, the principle of res judicata may not apply. This protects parties who were misled or
deceived during the original proceedings.

Examples:

 A party fabricates evidence or testimony to win the case.

 A party conceals material information from the court.

 A party bribes a judge or juror.

3. Change in Circumstances: If there has been a significant change in circumstances since the previous
judgment, res judicata may not apply. This allows the law to adapt to evolving situations and ensure
fairness in light of new developments.

Examples:

 A new law is passed that changes the legal landscape.

 New evidence comes to light that sheds a different light on the case.

 The circumstances of the parties have changed substantially.

4. Public Interest: In some cases, the public interest may outweigh the principle of res judicata. This
allows for the re-examination of an issue if it is deemed crucial for the public good.

Examples:

 A previous judgment is found to be discriminatory or unjust.

 The judgment creates a public safety hazard.

 The judgment undermines the integrity of the legal system.

5. Lack of Jurisdiction: If the court that issued the original judgment lacked jurisdiction over the case, res
judicata may not apply. This ensures that judgments rendered by courts without proper authority are not
enforced.

Examples:
  The court did not have the power to hear the case because of subject matter or geographical
limitations.

 The court did not have personal jurisdiction over the parties.

6. Different Writs: The applicability of res judicata can vary depending on the specific writ being sought.
For example, the writ of habeas corpus is generally not subject to res judicata, as it protects individual
liberty from unlawful detention.

In addition to these specific exceptions, courts generally have the discretion to refuse to apply res
judicata if it would lead to an unjust outcome. This allows for flexibility and case-by-case analysis to
ensure that the principle of res judicata serves the ends of justice.

It is important to note that the burden of proof lies with the party seeking to overcome res judicata.
They must demonstrate that one of the exceptions applies and that it is in the interests of justice to re-
examine the case

case Law Examples:

 Mohinder Singh Gill v. Chief Election Commissioner (1978): In this case, the Supreme Court of
India held that the principle of res judicata does not apply to the writ of habeas corpus, as it
serves a different purpose than ordinary litigation.

 State of Punjab v. Baldev Singh (1992): The Supreme Court of India held that the principle of res
judicata applies to the writ of mandamus, but it can be overcome if there has been a change in
circumstances or if the previous judgment was obtained through fraud.

 Union of India v. Tulsiram Patel (1985): The Supreme Court of India held that the principle of res
judicata applies to the writ of certiorari, but it can be overcome if the previous judgment was
obtained through fraud or if there was a clear error of law.

Conclusion:

Writs play a crucial role in upholding the rule of law and protecting individual rights. Understanding the
applicability of res judicata to different writs is essential for ensuring that the principles of finality and
fairness are balanced in legal proceedings. By analyzing relevant case law and considering the specific
circumstances of each case, courts can make informed decisions about whether or not to apply the
principle of res judicata in writ petitions.
Central vigilance commission
Introduction

“There can be no faith in government if our highest offices are excused from scrutiny — they should be
setting the example of transparency” – Edward Snowden

The misuse of powers by the bureaucrats, politicians, government officials and public servants to meet
their personal ends can be traced back to the British regime. Prior to 1947, democracy was a myth and
corruption was deeply embedded in the roots of the system. The Officials Secrets Act of 1923,
introduced by the British government, criminalised revelation of any State-related information to the
citizens, aiding the continuation of the malpractices in the country.

Post-independence, Prevention of Corruption Act 1947, was passed by the Government to combat the
prevailing corruption thriving in the administration. The Prevention of Corruption Committee also known
as Santhanam Committee constituted in 1963, recommended setting up of a Central Vigilance
Commission to scrutinise the governmental activities. This was in response to the increasing misuse of
powers by the political figures and governmental entities, with an aim to ensure their proper
functioning.

The Corruption Perception Index 2019 released by Transparency International, ranks India as the 80th
least corrupt country out of the bunch total of 180 countries. The statistics, clearly depict the picture of
the existing corruption, mainly attributed to the governmental and corporal entities. This highlights the
importance of a centrally coordinated statutory authority in the form of the Central Vigilance
Commission keeping a check on the officials and their activities, thereby contributing to good
governance.

Central vigilance commission

Central Vigilance Commission is an apex autonomous institution, conferred with the power to review
and monitor the governmental activities to ensure a corruption-free environment. The authority has
been accorded with a statutory status in 2003 by the Central Vigilance Commission Act.

Formulation and the historical background

The pre-independent era observed the setting up of a Special Police Establishment in 1941, by the Indian
Government to keep a check on the corrupt practices during World War II. The continuation of these
malpractices even after World War II led to the introduction of Special Delhi Establishment Act in 1946
with extended scope and jurisdiction. All the UTs and the States with the consent of their respective
governments came under its jurisdiction. The authority operated at the Central level under the
supervision of the Home Ministry.

However, its powers were restricted to investigate offences covered under Prevention of Corruption Act,
1947, selective sections of Indian Penal Code and 16 other central Acts. This called for the need to
establish a centralised Police authority called Central Bureau of Investigation, on the recommendations
of Santhanam Committee in 1963. The powers of this authority were extended to include probes into
frauds related to governmental entities, passport related frauds and major crimes involving professional
groups and organisations.

The Central Vigilance Commission, an apex sovereign institution was established in 1964 by a resolution
dated 11.2.1964 to assist the governmental institutions in their vigilance scheme. It was in 1997 that the
Supreme Court in the case of Vineet Narain & Others vs. Union of India & Another, 1 SCC 226, removed
CBI from the purview of the Central Government and placed it under the supervision of CVC. The Court
invalidated the provision that mandated the Central Government’s approval for the CBI to conduct
investigations against higher officials, to ensure an unbiased probe.

The Commission was granted with the statutory status by the ordinance of 1998 that turned into Central
Vigilance Act, 2003. It extended the scope of powers exercised by the Commission and made it a
supervisory authority to the CBI.

Constituent members

Section 3 of the CVC Act, 2003 provides for the structure of the Commission. It is chaired by a Central
Vigilance Commissioner who is assisted by two other Vigilance Commissioners as the members. The
chairperson and the members should either have held a civil post in the Union or a position in the
government-owned or controlled corporation. The person to be appointed should have expertise in the
matters of banking, finance, investigations and administrations. A Secretary may be appointed by the
Government if the Commission specifies the need for it by such a regulation.

Appointment and removal

The appointments to the Commission (Section 4) are made by the President on the recommendations of
a committee comprising the Prime Minister acting as the chairperson and the Home Minister and the
Leader of Opposition as the members. If in case the House lacks such a leader, then the leader of the
largest group in the opposition would be deemed as the member of the Committee. The section further
provides that any kind of vacancy in the Committee would not render these appointments invalid.

The President is further authorised, by the virtue of Section 6, to remove the members and the
chairperson of the Commission from the office in the cases of insolvency, a conviction in an offence
involving moral turpitude, incapability in holding the post or having an additional financial interest or
employment. Such removal is based on the grounds of misbehaviour or incapacity proved by the
Supreme Court. The employment of the profits or benefits by the members, to their personal interests,
arising out of Government contract, of which the members are a part of, would constitute misbehaviour.

Role and functions

The functions and powers of the Commission with respect to CBI and vigilance are envisaged
under Section 8 of the Act. It is empowered to supervise the investigations led by the CBI in matters
involving the commission of offences under the Prevention of Corruption Act, 1988 or offences
committed by public servants under CRPC, 1973. The Commission too can conduct a probe into these
matters in case a Government or a State-controlled corporate employee is involved, on a reference made
by the Central Government. It is also entitled to investigate into the complaints made against public
officials alleging the commission of these offences.

It directs the functioning of the CBI by keeping a close check on the progress of the investigations
conducted, thereby ensuring proper discharge of its duties. The Commission is further authorised to
monitor the administration of governmental Departments, Ministries and corporations. However, the
supervision exercised should not interfere with the administration of these institutions. The Central
Government or any of its institutions can refer to the Commission in order to seek its advice over matters
financial, banking and administrative matters.

Main issues and controversies

Over the years, the office of the Chief Vigilance Officers and the Commission has encountered issues
concerning transparency and independence from the executive in the exercise of its powers.

Appointment of PJ Thomas’s controversy

The subject of the appointment of the CVO became a controversy in 2010 by the appointment of PJ
Thomas as the Chief Vigilance Officer. The appointment was recommended by the then Prime Minister
Manmohan Singh and the Union Home Minister as the members of the High Powered Committee
constituted for this purpose. However, the Leader of the Opposition Sushma Swaraj questioned such an
appointment citing the association of PJ Thomas with the Palmolein Oil Import Scam in the years 1991-
1992. A charge sheet was filed against him, featuring him as the eighth accused, by the Anti Corruption
Bureau.

Public Interest Litigations regarding the same were filed by the Centre for Public Litigation in the
Supreme Court. The Court quashed the appointment made by the HPC on the grounds that the proper
considerations were not made while making such an appointment. The Court also placed a sense of
moral obligation on the Committee to take into the considerations the objections made by the members
based on reasonable grounds. Thus the unanimity of the Committee is not a necessary requirement but
a moral obligation. The judgement also indicated the need for transparency as a qualification for the post
of CVO.

Public sector banks under the scope of vigilance of CVC

The RBI in 2017, sanctioned necessary approvals allowing CVC to conduct investigations against the
employees of the private sector banks. This was followed by the Supreme Court’s decision in 2016 that
included employees of the private banks operating under the authority of RBI, in the definition of “public
servants” under the Prevention of Corruption Act, 1988. This was done to ensure smooth probity in the
graft cases in private banks.

Cases

Case of Sumit Kumar Banerjee v. State of West Bengal

In the case of Sumit Kumar v. State of West Bengal, 1980 AIR 1170, charges were framed by the Enquiry
Officer against the appellant, who was a member of Indian Administrative Services. The report was
consulted with the State Vigilance Commission. Upon considerations, the Disciplinary Authority( State
Government), imposed punishments on the appellant. In an appeal to the Supreme Court, the appellant
contended that the ultimate findings and the conviction cannot be based on reports of the Enquiry
Officer consulted with the State Vigilance Commission, having no statutory authority.

The Supreme Court held that the punishment imposed on the appellant was based on the findings of the
Disciplinary Committee. The mere consultation of the authority with the Vigilance Officer does not
render it invalid.

The judgement gathered a plethora of criticisms from the jurists. The jurists were of the opinion that the
process of consultation by the State violated the provisions of natural justice. The ultimate findings of
the State were influenced by the Vigilance Commission’s opinion which went against the principles of
natural justice. The jurists further opined that taking no notice of the findings submitted by the
Commission would render the purpose of its establishment meaningless.

The Guardians Against Crime: Establishment of the CBI and ED with Case Studies
Introduction:
Combatting crime and ensuring the rule of law are fundamental tenets of a healthy society. In India, two
premier agencies play crucial roles in this endeavor: the Central Bureau of Investigation (CBI) and the
Enforcement Directorate (ED). Both agencies, established to investigate and prosecute specific types of
crimes, have significantly impacted the Indian legal landscape.

Establishment of the CBI:

The CBI was formed in 1963 through a resolution of the Ministry of Home Affairs. It was initially created
as a specialized agency to investigate specific crimes involving corruption and public servants. Over time,
its mandate expanded to encompass a wider range of offenses, including economic offenses, organized
crime, and cybercrime.

Key Functions of the CBI:

 Investigate cases of corruption involving public servants and high-ranking officials.

 Probe major economic offenses like bank frauds, financial scams, and money laundering.

 Investigate organized crime activities such as smuggling, narcotics trafficking, and terrorism.

 Assist state governments in investigating serious crimes upon their request.

 Collect and maintain criminal intelligence.

Establishment of the ED:

The ED was established in 1956 under the Foreign Exchange Regulation Act (FERA). Its initial focus was
on investigating violations of foreign exchange regulations. However, its role evolved significantly with
the enactment of the Prevention of Money Laundering Act (PMLA) in 2002.

Key Functions of the ED:

  Investigate cases of money laundering related to various crimes, including drug trafficking,
corruption, and organized crime.

 Attach and confiscate assets acquired through illegal means.

 Collect and disseminate intelligence related to money laundering activities.

 Enforce the provisions of the PMLA and other relevant laws.

Case Study: Vineet Narayan v/s Union of India:

This landmark Supreme Court case, decided in 1998, played a crucial role in shaping the CBI's structure
and functioning. The case arose from public interest litigation highlighting the need for transparency and
accountability in CBI investigations.

Key Findings and Impact of the Case:

 The Court underscored the need for autonomy and independence for the CBI to effectively
combat corruption.

 It recommended the establishment of a Central Vigilance Commission (CVC) to oversee the CBI's
functioning and ensure its accountability.

 The Court laid down guidelines for selecting the CBI Director, emphasizing the importance of
transparency and merit-based appointments.

Significance of the Case:

The Vineet Narayan judgment significantly strengthened the CBI's institutional framework and enhanced
its ability to function independently and effectively. It also established a crucial precedent for judicial
intervention in upholding transparency and accountability in the fight against corruption.

Comparative Analysis of CBI and ED:

While both agencies share the objective of combating crime, their specific mandates and approaches
differ.

Feature CBI ED

Investigation of corruption, economic

Investigation of money laundering
Mandate offenses, organized crime, and
and related offenses.
cybercrime.

Public servants and high-ranking Individuals and entities involved in

Focus
officials. money laundering activities.
 Investigation, attachment and
Powers Investigation, arrest, prosecution.
confiscation of assets.

Jurisdiction All India. All India.

Complex financial investigations,

Political interference, resource
Challenges international cooperation, legal
limitations, complex investigations.
framework.

Conclusion:

The CBI and ED have emerged as vital institutions in India's fight against crime. Through their dedicated
efforts, both agencies have achieved significant successes in investigating and prosecuting various
offenses, deterring criminal activities, and upholding the rule of law.

Looking Forward:

The evolving nature of crime demands continuous improvement and adaptation from both agencies.
Strengthening investigative capabilities, enhancing technology adoption, fostering international
cooperation, and addressing resource constraints are crucial aspects for ensuring their effectiveness in
the years to come. By continuously evolving and adapting to the changing landscape of crime, both the
CBI and the ED can continue to play a vital role in safeguarding the nation's security and ensuring a just
and equitable society.

Additional Information:

 The CBI and ED function under the Ministry of Home Affairs and the Ministry of Finance,
respectively.

 Both agencies publish annual reports detailing their activities and achievements.

 The CBI and ED websites provide information about their functions, contact details, and citizen
services.

By understanding the mandates, functions, and challenges faced by the CBI and ED, individuals can
better appreciate their role in upholding law and order in India. This knowledge can also empower
citizens to actively participate in the fight against crime and contribute to a safer and more secure
society.

The Ombudsman: A Beacon of Hope for Justice and Equity in India

The concept of the Ombudsman, originating from Sweden, has become a global phenomenon in the
fight against administrative injustices and corruption. In India, the idea of an Ombudsman has
manifested in the form of the Lok Pal at the national level and Lokayuktas at the state level. This essay
delves into the concept of the Ombudsman, its development in India, and the challenges and
opportunities it presents.

The Ombudsman: A Global Concept:

An Ombudsman typically acts as an independent and impartial official appointed to investigate

complaints against public administration and officials. They serve as a vital safeguard against
administrative abuse, promoting transparency, accountability, and fairness in governance. The
Ombudsman's role encompasses:

 Receiving and investigating complaints against public officials and administrative bodies.

 Mediating disputes between citizens and the administration.

 Recommending corrective action in cases of maladministration and misconduct.

 Promoting good governance by advocating for changes in policies and procedures.

Evolution of the Ombudsman in India:

The seeds of the Ombudsman concept were sown in India through the Administrative Reforms
Commission in 1966, which recommended the creation of a Lokpal to investigate complaints against the
central government. However, it took decades for the concept to be translated into reality.

1. The Lokpal:

 The Lokpal and Lokayuktas Act, 2013, finally established the Lokpal at the national level. This
followed years of public pressure and activism demanding an effective mechanism to address
corruption.

 The Lokpal is empowered to investigate complaints against the Prime Minister, Ministers, and
other high-ranking officials.

 Despite its establishment, the Lokpal faces challenges such as limited jurisdiction, political
interference, and resource constraints.

2. The Lokayuktas:

 At the state level, Lokayuktas exist in various states, with varying degrees of autonomy and
effectiveness.

 They investigate complaints against state government officials and administrative bodies.

 States like Karnataka and Maharashtra have seen successful Lokayuktas, while others struggle
with understaffing, political interference, and limited resources.

Challenges and Opportunities:

Despite their potential, the Lokpal and Lokayuktas face numerous challenges:

 Limited jurisdiction: The Lokpal's jurisdiction excludes certain high-ranking officials and
organizations.

 Political interference: Concerns exist about political influence over the appointment and
functioning of these institutions.

 Resource constraints: Lack of adequate resources hinders their ability to investigate complaints
effectively.

 Public awareness: Limited public awareness about the Ombudsman system restricts its reach
and impact.

However, there are also opportunities to strengthen these institutions:

 Expanding jurisdiction: The Lokpal's jurisdiction could be expanded to include more officials and
organizations.

 Ensuring independence: Mechanisms to ensure the Lokpal's and Lokayuktas' autonomy from
political pressure are crucial.

 Enhancing resources: Providing adequate financial and human resources is essential for effective
investigation and prosecution.

 Raising public awareness: Increased public awareness about the Ombudsman system can
encourage greater utilization of its services.

The Future of the Ombudsman in India:

The Lokpal and Lokayuktas represent a significant step towards promoting transparency, accountability,
and fairness in Indian governance. However, their effectiveness depends on addressing the existing
challenges and seizing the available opportunities. Strengthening these institutions through legislative
reforms, increased public awareness, and enhanced resources is essential to ensure they fulfill their vital
role in combating corruption and upholding the rule of law.

Further Exploration:

 Comparative analysis: Examining the Ombudsman model in other countries and lessons learned.

 Case studies: Analyzing successful and unsuccessful implementations of the Ombudsman system
in India.

 Public opinion surveys: Understanding public perceptions of the Lokpal and Lokayuktas.

 Role of media and civil society: Exploring their contribution to strengthening the Ombudsman
system. By actively engaging in research, dialogue, and action, we can ensure that the
Ombudsman system in India evolves into a powerful force for justice and equity, fulfilling its
promise of a society free from corruption and administrative injustices.
VIII Clause (Removal of Difficulties): A Bridge between Legal Ambiguity and
Implementation
The VIII Clause, often referred to as the "Removal of Difficulties" clause, is a common feature in statutes
and legal documents. It serves as a crucial tool for bridging the gap between legal ambiguity and
practical implementation. By understanding its purpose, scope, and limitations, we can appreciate its
vital role in ensuring the effective and efficient application of law.

Purpose and Scope:

The primary purpose of the VIII Clause is to empower the legislature or a designated authority to
address unforeseen difficulties or ambiguities that may arise during the implementation of a statute. This
power encompasses the ability to:

 Clarify ambiguities: Remove doubts or uncertainties in the interpretation of the legal provisions.

 Supply omissions: Address lacunae or missing details in the legislation.

 Relieve hardship: Mitigate unintended consequences or hardships caused by the literal

application of the law.

 Adapt to changing circumstances: Allow for adjustments to the law in response to evolving
situations or unforeseen developments.

Key Aspects of the Clause:

The specific powers and limitations of the VIII Clause vary depending on the specific legislation. However,
some key aspects are generally applicable:

 Delegated Power: The Clause typically delegates the power to remove difficulties to a designated
authority, such as the government or a regulatory body.

 Limited Scope: The delegated power is not unlimited and should be exercised within the
framework and purpose of the original legislation.

 Retrospective Applicability: In some cases, the Clause may allow for retrospective application of
clarifications or modifications, but this should be clearly stated and limited.

 Procedural Safeguards: Certain procedural safeguards, such as public notice and opportunity for
feedback, may be required before exercising the Clause.

 Judicial Review: The exercise of the Clause remains subject to judicial review, ensuring that it is
not used for purposes beyond its intended scope.

Examples of the VIII Clause in Action:

 Taxation laws: The VIII Clause is frequently used in tax laws to clarify complex provisions, address
unforeseen tax loopholes, and provide relief to taxpayers facing undue hardship.

 Environmental regulations: The Clause can be used to adapt environmental regulations to

evolving scientific understanding or address unforeseen environmental challenges.
  Social welfare schemes: Amendments may be made to social welfare schemes to ensure their
effectiveness and address changing needs of beneficiaries.

Challenges and Considerations:

While the VIII Clause offers valuable flexibility, it also raises certain concerns:

 Potential for Abuse: The delegated power can be misused to circumvent legislative processes or
serve vested interests.

 Lack of Transparency: The exercise of the Clause may lack transparency and public participation.

 Legal Uncertainty: Overly broad or vague provisions can create legal uncertainty and undermine
the rule of law.

Striking a Balance:

Effective use of the VIII Clause requires balancing the need for adaptability with the principles of legal
certainty and accountability. Clear guidelines, robust safeguards, and transparent procedures are
essential to ensure its responsible exercise and prevent abuse of power.

Conclusion:

The VIII Clause, when implemented thoughtfully and with due regard for legal principles, can play a vital
role in ensuring the smooth and effective implementation of law. By addressing unforeseen difficulties
and adapting to changing circumstances, it helps bridge the gap between the theoretical framework of
legislation and its practical application in the real world. However, it is crucial to ensure that the Clause is
used responsibly and with transparency to maintain public trust in the legal system.

Further Exploration:

 Comparative analysis: Examining the VIII Clause in various legal systems and their approaches to
delegated legislation.

 Case studies: Analyzing specific instances of the VIII Clause being invoked and its impact on the
implementation of laws.

 Public consultations: Encouraging public participation in the exercise of the Clause to ensure
transparency and accountability.

 Academic research: Conducting research on the effectiveness of the VIII Clause and its potential
for improvement.

By engaging in comprehensive research and ongoing dialogue, we can strive to optimize the VIII Clause
and enhance its role in fostering a legal system that is both responsive and accountable, ultimately
serving the needs of society as a whole.
The Bedrock of Commerce: Contractual Liability in the Indian Constitution
(Article 298 and 299)
The ability to enter into and enforce contracts lies at the heart of any thriving economy. In India, the
Constitution itself recognizes and protects this principle through Articles 298 and 299. This essay delves
into the significance and implications of these articles, exploring their role in fostering a conducive
environment for commerce and economic development.

Article 298: The Foundation of Contractual Liability:

Article 298 provides the cornerstone for contractual liability in India. It states that "the executive power
of the Union and of each State shall extend to the carrying on of any trade or business and the
acquisition, holding and disposal of property and the making of contracts for any purpose." This article
establishes the following fundamental principles:

 Legal Capacity to Contract: Both the Union and State governments are empowered to enter into
contracts, recognizing them as legal entities capable of contractual obligations.

 Wide Scope of Contracts: The article grants the government broad powers to contract for any
purpose, encompassing commercial transactions, acquisitions, property dealings, and other
necessary agreements.

 Promoting Economic Activity: This provision encourages the government's participation in

various economic activities, including running businesses, managing public enterprises, and
engaging in infrastructure development.

Article 299: The Mode and Manner of Contract Execution:

Article 299 complements Article 298 by outlining the manner in which government contracts are to be
executed. It states that "all contracts made in the exercise of the executive power of the Union or of a
State shall be expressed to be made by the President, or by a Governor, as the case may be, and shall be
signed accordingly." This article ensures:

 Standardization and Clarity: By specifying the form and signature requirements, the article aims
to ensure standardization and clarity in government contracts.

 Accountability and Transparency: The requirement for specific signatures ensures accountability
and transparency in the execution of contracts, minimizing the risk of fraud or
misrepresentation.

 Legal Validity and enforceability: By following the prescribed formalities, government contracts
acquire legal validity and enforceability in courts of law.

Key Interpretations and Implications:

 Judicial Review: The judiciary plays a crucial role in interpreting the scope and limitations of
Articles 298 and 299. Courts have established principles like the doctrine of promissory estoppel,
ensuring fairness and accountability in government contracts.
  Public Interest: Government contracts are subject to the public interest doctrine. Courts can
intervene to nullify contracts deemed unfair, harmful to the public good, or exceeding the
government's powers.

 Protection of Third Parties: The principles of natural justice and procedural fairness apply to
government contracts, ensuring that third parties entering into contracts with the government
receive due process and protection.

Challenges and Opportunities:

 Administrative Delays: Complex bureaucratic processes can lead to delays in contract execution,
hindering efficiency and hindering businesses.

 Corruption and Misconduct: Allegations of corruption and misconduct in government contracts

raise concerns about transparency and accountability.

 Inadequate Dispute Resolution Mechanisms: Delays and inefficiencies in dispute resolution

mechanisms can create uncertainty and risk for businesses.

Moving Forward:
 Streamlining Processes: Implementing efficient and transparent procurement processes can
reduce delays and promote fair competition.

 Enhancing Transparency: Promoting transparency in contract awarding procedures and fostering

public participation can increase accountability and address concerns about corruption.

 Strengthening Dispute Resolution: Establishing robust and efficient dispute resolution

mechanisms will provide businesses with a fair and timely recourse in case of disputes with the
government.

Conclusion:

Articles 298 and 299 of the Indian Constitution play a critical role in fostering a stable and predictable
environment for economic activity. By ensuring the government's contractual capacity and establishing
clear rules for contract execution, these articles contribute to building trust and confidence among
businesses and investors. However, addressing existing challenges and continually improving
transparency, efficiency, and accountability are crucial to ensure that contractual liability remains a
bedrock for a thriving Indian economy.

Further Exploration:

 Comparative analysis: Examining how other countries regulate government contracts and
identify best practices for India.

 Case studies: Analyzing landmark judicial pronouncements on government contracts and their
impact on the legal landscape.

 Public awareness campaigns: Educating citizens about their rights and responsibilities in relation
to government contracts.
  Research and development: Continuously studying and analyzing emerging trends in contractual
law and their implications for government contracts.

By engaging in ongoing dialogue, research, and reform, we can strive towards a future where the
principles of contractual liability enshrined in the Indian Constitution continue to serve as a foundation
for sustainable economic growth and development.
Meaning
Corporate Social Responsibility (CSR) means and includes but is not limited to:

i. Projects or programs relating to activities specified in Schedule VII to the Act or

ii. Projects or programs relating to activities undertaken by the board of directors of a company
(Board) in pursuance of recommendations of the CSR Committee of the Board as per declared
CSR Policy of the company subject to the condition that such policy will cover subjects
enumerated in Schedule Vll of the Act.

Companies (Corporate Social Responsibility Policy) Rules, 2014

Corporate social responsibility is more or less an act of company whereby it presents its concern &
commitment towards the society in large in connection with the sustainability & development. CSR is
basically a moral and ethical conduct towards the society in large by a company.

According to section 135 of the Companies Act,2013, CSR is compulsory for all companies whether
government or private and applies to:

 every company

 its holding companies

 its subsidiary company

 foreign company

Provided they meet the following fiscal criteria:

 Net Worth > 500 Crore

 Turnover > 1000 Crore

 Net Profit > 5 Crore

Importance of CSR

 CSR shows to the public that a company is considerate towards the environment and society.
This in turns increase their public image.

 Companies which undertake CSR Activities and are more active in the developmental projects
are more favored by customers and potential customers. This in turns makes companies stand
out from their competitors in the market.

 CSR activities also provide free publicity in the society.

 CSR boosts a company's brand value and builds a strong relationship with its customers who
generally feel more inclined towards that company.
CSR activity towards the society
A company has a CSR duty towards various strata of the societies. Some of those are towards:

A. Society

o to promote overall development of the society

o to contribute towards promotion of education and employment and social health of

society in large.

o To minimize environmental pollution in the area (whether air, soil, water, sound, etc)

o To be cautious towards maintaining an ecological balance.

o To carry on business with moral and ethical standards.

B. Government

o To pay appropriate amount of taxes and to pay them timely

o To comply with the rules and regulations as under law.

o To cooperate with government for overall development.

o To not take misuse the laws by taking advantages of various loopholes.

C. Shareholders

o To work towards bringing profit towards the company

o To not misuse shareholder's fund

o To not manipulate the company's accounts

o To provide a reasonable rate of return

o To promote and build the goodwill of the company

o To ensure accounting principles are followed especially for the growth of the company.

D. Employees

o To provide a safe working environment especially towards women

 o To timely and regularly pay wages and salary to the workers without any unreasonable
cut.

o To provide facilities for promotion and growth.

o To recognize the work of employees and reward them accordingly.

o To promote overall development and growth of employees and their personal

objectives.

o To provide them with a redressal mechanism within the company.

E. Consumers

o To supply good quality products

o To supply goods which are not harmful towards society.

o To provide after sale services.

o To provide a mechanism for consumer grievances

o To adopt a fair pricing technique.

o To not monopolize the market and provide a fair competition.

CSR committee
If a company fulfils the requirements of Section 135 of the Companies Act, 2013 then they are required
to form a CSR committee to fulfil their CSR obligations under law.

A. Constitution of the CSR Committee

o Minimum 3 directors are necessary to form a CSR Committee.

o One among these directors must be an independent director.

o However in unlisted public companies or private companies where an independent

director is not required, their CSR committees can be without any independent director

o In Private companies which have only 2 directors, CSR Committees shall have only 2
directors.

o In a foreign company, the CSR committee shall have atleast 2 persons. Among these, one
person shall be a resident of India who must be authorized to accept on behalf of such
foreign company. The other person shall be nominated by the foreign company
accordingly.
 B. Duties of CSR Committee

o Policy creation to implement the CSR activities according to the Schedule VII of the
Companies Act, 2013

o Allocate and audit money for CSR activities.

o Oversee the execution of the CSR activities for which money has been allocated so that it
is not misused.

o Regular assessment of profits of the company and ensure that atleast 2 percent of it is
spent on CSR activities annually

o Issue an annual report on various CSR activities undertaken by the company.

o Ensure local issues and regions are prioritized or promotion of local regions and people.

o Ensure that CSR polices are made public by issuing them on company's official website in
accordance with the format approved by the committee.

CSR activities as per schedule VII

The various CSR activities under Schedule VII according to Section 135 of the Companies Act 2013 and
Companies (Corporate Social Responsibility Policy) Rules 2014 are:

i. Eradicating hunger, poverty & malnutrition

ii. Promoting preventive health care & sanitation & making available safe drinking water

iii. Promoting livelihood enhancement projects as well as education & employment among children,
women & the differently abled.

iv. Promoting gender equality and empowerment of women, setting up orphanages, old age
homes, day care centers and other facilities for senior citizens.

v. Promoting measures for reducing inequalities faced by SEBCs, OBCs, SCs and STs.

vi. Providing proper hospital facilities and medicines at a subsidized rate and to improve maternal
health to reduce child mortality

vii. Providing hospital and dispensary facilities with a focus on proper sanitation in order to fight
various health related diseases and issues like human immunodeficiency virus, acquired immune
deficiency syndrome, malaria and other diseases.

viii. Ensuring sustainability and an ecological balance in the environment, safeguarding flora & fauna,
animal welfare, agro forestry, conservation of natural resources & maintaining quality of soil, air
& water.

ix. Enhancement of vocational skills by employment

 x. Protection of national heritage, art & culture by working towards restoration of historically
important buildings & sites & works of art.

xi. Promotion & development of traditional Indian arts & handicrafts.

xii. Introducing measures for welfare of veterans of armed forces, war widows & their dependents.

xiii. Training to promote rural/nationally recognized/Olympic sports.

xiv. Contribution to PM's National Relief Fund or any other Central Government for development of
socio-economic issue and SCs, STs, OBCs and minorities.

xv. Contributing towards Central Government approved technology incubators within academic
institutions like universities and colleges.

xvi. Development of slum and rural areas.

Fines and Penalties for Non-Compliance

Failure of a company to comply with CSR spending provisions or transferring and utilizing the unspent
amount out of the CSR funds, a company will be punishable with a fine which may increase to Rs. 25 lakh
but not less than Rs. 50,000.

The Act also provides for punishment of company officers who default in compliance. It states that every
such officer of the company will be liable to for a punishment with a fine which may increase to Rs. 5
lakh but not less than Rs. 50,000 or imprisonment for a maximum term of three years of with both.