Unit 4 Public Law Review

4.1 Meaning and Modes of Public Law Review

4.2 Writ Jurisdiction

Private Law Review

4.3 Meaning and importance

4.3.1 Modes of Private Law Review: Suit for Damages, Declaratory action, Injunction

Unit 4: Public and Private Law Review

4.1 Meaning and Modes of Public Law Review

Introduction & Definition

Public Law Review refers to the power of the Constitutional Courts (Supreme Court and High Courts) to review the actions of the Legislative and Executive branches. It is the primary check on administrative power.

Modes: The primary mode of Public Law Review in India is Writ Jurisdiction under Articles 32 and 226.

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Statutory Provisions

• Article 32: Right to Constitutional Remedies (Supreme Court).
• Article 226: Power of High Courts to issue certain writs.
• Article 136: Special Leave Petition (SLP).

Essential Ingredients

1. Violation of Rights: Generally, a Fundamental Right (for Art 32) or any legal right (for Art 226) must be violated.
2. State Action: The violation must usually be by the “State” (as defined in Article 12).
3. Locus Standi: The petitioner must have the standing to file the case (relaxed in PIL).

4.2 Writ Jurisdiction (The 5 Writs)

The Constitution empowers the Supreme Court and High Courts to issue five specific writs to enforce rights.

1. Habeas Corpus (“To have the body”)

• Purpose: To release a person who has been detained unlawfully (whether in prison or private custody).
• Key Feature: It is the most powerful safeguard for personal liberty.
• Landmark Case: ADM Jabalpur v. Shivkant Shukla (1976) – The infamous case where the SC held that Habeas Corpus could be suspended during Emergency (later overruled by 44th Amendment).

2. Mandamus (“We Command”)

• Purpose: To command a public authority to perform a public duty that it has failed to perform.
• Key Feature: It lies only against a public authority (not private individuals) and only for a public duty.
• Landmark Case: Gujarat State Financial Corporation v. Lotus Hotels (1983) – The SC issued Mandamus compelling the Corporation to release the loan it had promised, applying the doctrine of Promissory Estoppel.

3. Certiorari (“To be certified”)

• Purpose: To quash (cancel) an order passed by a lower court or tribunal.
• Grounds:
  • Excess of jurisdiction.
  • Violation of Natural Justice.
  • Error of law apparent on the face of the record.
• Landmark Case: Gullapalli Nageswara Rao v. APSRTC (1959) – The SC quashed the state government’s order nationalizing bus routes because the Secretary who heard the objections was biased (Official Bias).

4. Prohibition (“To forbid”)

• Purpose: To stop a lower court or tribunal from continuing with a case that is outside its jurisdiction.
• Difference from Certiorari: Prohibition is preventive (issued during proceedings); Certiorari is curative (issued after the order is passed). “Prevention is better than cure.”

5. Quo Warranto (“By what authority?”)

• Purpose: To ask a person holding a public office to show under what authority they hold it.
• Key Feature: If the person is not qualified, they are ousted from office. It prevents usurpation of public office.
• Landmark Case: University of Mysore v. Govinda Rao (1965) – The appointment of a person who did not meet the qualification criteria for a Reader was challenged. The SC held the appointment invalid.

4.3 Private Law Review: Meaning and Importance

Introduction & Definition

Private Law Review refers to the remedies available to a citizen against the administration through ordinary Civil Suits.

When the State enters into contracts or commits torts (civil wrongs) like negligence, it is treated like any other private individual. The citizen can sue the State for damages or injunctions under the Code of Civil Procedure (CPC) or Specific Relief Act.

Importance

• Compensation: Writs (Public Law) generally offer only relief (quashing an order), but Civil Suits (Private Law) offer compensation (money).
• Equality: It upholds the principle that the Government is not above the law.

4.3.1 Modes of Private Law Review

A. Suit for Damages (Tortious Liability)

• Definition: Asking the State to pay money for the harm caused by its servants (Vicarious Liability).
• Sovereign Immunity: Historically, the State was not liable for “Sovereign Functions” (like police, defense). However, Indian courts have narrowed this defense significantly.
• Statutory Provision: Article 300 of the Constitution (Suits and proceedings).

Landmark Case Laws:

1. Kasturi Lal v. State of UP (1965)
   • Facts: Police seized gold from a merchant, and a constable ran away with it.
   • Judgment: The SC held the State not liable because keeping seized property is a “Sovereign Function.” (This is a heavily criticized judgment).
2. Rudul Sah v. State of Bihar (1983)
   • Facts: A prisoner was kept in jail for 14 years after his acquittal.
   • Judgment: The SC awarded compensation, effectively overruling the strict sovereign immunity doctrine in cases of fundamental rights violation.

B. Declaratory Action (Declaratory Decree)

• Definition: A suit where the court simply “declares” the rights of the parties without ordering any specific action.
• Use: Often used by government servants to declare their dismissal “wrongful” so they can get back their job and salary.
• Statutory Provision: Section 34 of the Specific Relief Act, 1963.

Landmark Case: Union of India v. Verma (1957) – A dismissed employee sued for a declaration that his dismissal was void. The court granted the declaration, which entitled him to reinstatement.

C. Injunction (Stay Order)

• Definition: A court order commanding the government to do or not to do a particular act.
• Types:
  • Temporary Injunction: Interim relief (Order 39, CPC) pending the final decision.
  • Permanent Injunction: Final relief (Specific Relief Act).
• Restriction: Courts generally do not grant injunctions that stop the government from performing essential public duties.

Comparison: Public Law Review vs. Private Law Review

Exam-Style Conclusion

While Public Law Review (Writs) provides a swift remedy against arbitrary state action, Private Law Review (Suits) is essential for claiming monetary compensation for negligence or breach of contract. The modern trend, however, is the “Constitutional Tort,” where courts award compensation even in Writ petitions (Rudul Sah), blending the speed of Public Law with the remedial nature of Private Law.