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Category: Control on Executive Law Making

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Control on Executive Law Making

Himmat Lal v. Commissioner of Police AIR 1973 SC 87

HIMMAT LAL V. COMMISSIONER OF POLICE

Himmat Lal v. Commissioner of Police AIR 1973 SC 87

ISSUE:

  • Whether the Powers of the Police Commissioner under Bombay Police Act, 1951 violative of the Fundamental Rights of the citizens to hold public meetings under Article 19(1)(b) of the Indian Constitution?

RULE:

  • The State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place. The State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order.

FACTS:

  • The appellant made an application to the Police Commissioner. Ahmedabad, for permission to hold a public meeting near Panch Kuva Darwaja, Ahmedabad in connection with the All India students’ strike sponsored by the All India Students Federation.
  • This permission was refused because the application was not sent 5 days before the day of the meeting as required by notification of the Commissioner of Police. The appellant was also informed that “holding a meeting with or without a loudspeaker, without the permission, amounts to an offense.”
  • After a few days, the appellant also applied for permission to hold another public meeting well before time.
  • The Deputy Police Commissioner informed him that the permission “cannot be granted since a meeting was held earlier under similar permission whereafter certain elements had indulged in pioneering and caused mischief to private and public properties.
  • He was also informed that “given the present position, it is not possible to grant such permission to maintain law and order.”
  • Therefore, the Appellant filed a writ petition praying for the quashing of the orders of the police, declaring section 33(O) read with section 33 (Y) of the Bombay Police Act Void, declaring Rule 7 to 11, 14, and 15 of the Rules for Procession and Public Meetings void and to declare that Appellant should be allowed to conduct public meetings without obtaining the permission from the authorities.

HELD:

  • The Supreme Court held that Section 33(1)(o) is not in violation of Article 19(1)(b). It enables the Commissioner to make rules to regulate the assemblies and processions. Without such rules, in crowded public streets, it would be impossible for citizens to enjoy their various rights. Indeed Section 33(1)(o) may be said to have been enacted in aid of the rights under Article 19(1)(a) and 19(1)(d) of the Indian Constitution.
  • It also held that Rule 7 of the Rules framed by the Commissioner of Police, Ahmedabad, is void as it infringes Article 19(1)(b) of the Constitution.
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Control on Executive Law Making

Bijoe Emmanuel v. State of Kerala AIR 1987 SC 748 

BIJOE EMMANUEL V. STATE OF KERALA

Bijoe Emmanuel v. State of Kerala AIR 1987 SC 748

ISSUE:

  • Is the expulsion of the 3 students from a school in Kerala justified under Kerala Education Act (Section 36), Kerala Education Rules(Rule 6 and 9), and Section 3 of Prevention of Insults to National Honour Act 1971?
  • Whether the expulsion of the children from the school is consistent with the rights guaranteed under Article 19(1) and Article 25 of the Indian Constitution?

RULE:

  • There was no legal provision that obligates anyone to sing the National Anthem, and it is not disrespectful to the Anthem. The court ordered that the students be permitted to study in the school without any hindrance.
  • Further, the court had observed that our traditions taught us tolerance, our philosophy preaches tolerance, and our Constitution practices tolerance hence we should not dilute it.

FACTS:

  • The case pertains to 3 students – Bijou, Binu Mol, and Bindu Emmanuel who studied in a school in Kerala. They attended school every day and even participated in the school assembly.
  • However, when the National Anthem was sung, they didn’t sing the National Anthem along with the other students but stood at attention.
  • Their two elder sisters also studied in the same school and followed the same practice and nobody ever objected to it.
  • One day in July 1985, a member of the legislative assembly attended the assembly and noticed that the 3 children were not singing the National Anthem and he thought that this behaviour of theirs was unpatriotic.
  • He raised this question in the Assembly and a commission was set up to investigate the matter. The commission reported that the children were well-behaved and law-abiding and did not ever show any disrespect to the National Anthem.
  • However, the Head Mistress expelled the students from the school under the instructions of the Deputy Inspector of Schools.
  • The father of the children requested the headmistress to allow the children to attend their classes in school till they received a government order/decision in the matter. The Headmistress expressed her inability to do so.
  • The objection of the Emmanuel children was not the language or the sentiments of the National Anthem. They did not sing the National Anthem, but they always stood in when the National Anthem was sung to show their respect for it. They did not sing only because of their belief and conviction that their religion did not permit them to join any rituals except it be in their prayers to Jehovah, their God.
  • Since the appellants were prevented from attending the school, they sought a restraining order passed by the authorities. However, their writ petition was first rejected by a single learned judge and then the division bench also rejected the prayer of the children.
  • After this, the case was appealed by the father, in the Supreme Court through a special leave petition under Article 136 of the Constitution.

HELD:

  • The Supreme Court held that the three students were not guilty of disrespect to the National Anthem just because they refused to sing it. Moreover, they did stand in respect whenever the National Anthem was being sung.
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Control on Executive Law Making

Kumari Regina v. St. Aloysius Higher Elementary School and Another, AIR 1971 SC 1920

KUMARI REGINA V. ST. ALOYSIUS HIGHER ELEMENTARY SCHOOL

Kumari Regina v. St. Aloysius Higher Elementary School and Another AIR 1971 SC 1920

ISSUE:

  • Whether the rules under which the appeal was filed and the order was made were only administrative instructions by the Government to its educational officers?

RULE:

  • Section 56 of the Madras Elementary Education Act, 1920 was emphasized in the ruling by the Supreme Court.

FACTS:

  • The appellant, who was working as the Headmistress in the respondent school was reduced to the position of an Assistant Teacher.
  • Her appeal to the District Educational Officer under Section 13(2)(vi) of Part 11 of the rules published by the State Government in the Gazette on August 29, 1939, was rejected, but on a further appeal by her to the Divisional Inspector of Schools, the management of the school was directed to restore her to the position of Headmistress.
  • As the management did not do so, she filed a suit for the issue of a mandatory injunction to the respondent and damages.

HELD:

  • It was held by the Supreme Court that mandamus cannot be used against the management of private institutions. The court can also not intervene the in decisions of the Governor with the writ of Mandamus.
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Control on Executive Law Making

K. M. Shanmugam v. S. R. V. S. Private Limited and Others, AIR 1963 SC 1626

K.M. SHANMUGAM V. S.R.V.S PRIVATE LIMITED AND OTHERS

K. M. Shanmugam v. S. R. V. S. Private Limited and Others, AIR 1963 SC 1626

ISSUE:

  • Whether the High Court has no jurisdiction to issue a writ of certiorari, as the error, if any, was one of fact and that the directions issued by the Government under s. 43A of the Motor Vehicles Act?

RULE:

  • Section 43 and 47 of the Motor Vehicles Act.
  • Article 226 of the Constitution of India

FACTS:

  • On applications for permits made to it the Regional Transport Authority, applying the marking system prescribed by the Government order issued under Sec 43A of the Motor Vehicles Act granted the permit to the appellant.
  • On appeal by the respondent, the State Transport Appellate Tribunal recast the marks but in doing so did not allot any mark to the first respondent under the head of “residence or place of business” thereby treating the appellant and the first respondent as equal, gave the appellant the further advantage of four marks under the head “viable unit”.
  • The respondent challenged the order of the Appellate Tribunal before the High Court under Art. 226 on the ground that the Appellate Tribunal had failed to allot him any mark in respect of his admitted residential qualification and had thereby committed a breach of Sec 47 (1) (a) and (c) of the Motor Vehicles Act.

HELD:

  • The Supreme Court held that the question was whether there was an error apparent on the face of the record to enable the High Court to interfere under Art. 226 of the Constitution was one to be determined in each case and no particular test can or need be laid down as a general rule.
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Control on Executive Law Making

Union of India v. K. P. Joseph and Others, AIR 1973 SC 303

UNION OF INDIA V. K.P. JOSEPH AND OTHERS

Union of India v. K. P. Joseph and Others, AIR 1973 SC 303

ISSUE:

  • Whether the order applied to the first respondent as he was reemployed before 25/11/1958?
  • Whether the order was justifiable and writ lay?

RULE:

  • There are administrative rights that confer rights and impose duties. it is because an administrative order can abridge take away rights that the Court imported the principle of natural justice of audi altram partem into this area.

FACTS:

  • The appellant was discharged from the post of combatant Clerk in the Indian Army on 9th June, 1953, and was re-employed shortly thereafter.
  • His pay was re-fixed in the scale applicable. On 15th July, 1960, the Government of India issued a general Order relating to re-employed ex-military personnel.
  • Under the Order those entitled to its benefits would get fixed in the scale applicable to them by adding to the bottom of their scales increments equal to the total number of completed years of military service.
  • The first respondent having exercised the option provided for in the Order, claimed that he was entitled to the benefit of the Order.
  • The claim was rejected by the Government the first respondent filed a writ petition in the High Court.

HELD:

  • The Supreme Court held that the general rule under the Order was that past cases of persons re-employed before 25-11-1958 would not be reopened. 
  • But the effect of clause (3) of paragraph (3) is to create an exception to the general rule in the case of persons re-employed before 25-11-1958 for an unspecified period or for a period that extends to the date of order and who have exercised their option in writing to be brought under the Order.
  • Therefore, it was held that the respondent having exercised his option was therefore entitled to the benefit of the order.
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Control on Executive Law Making

B.S. Minhas v. Indian Statistical Institute & Ors., AIR 1984 SC 363

B.S. MINHAS V. INDIAN STATISTICAL INSTITUTE & ORS.

B.S. Minhas v. Indian Statistical Institute & Ors. AIR 1984 SC 363

ISSUE:

  • Whether the petition was maintainable?
  • Whether the bye-law requires the vacancy of the director and whether it should be publicized?

RULE:

  • It is not for the court to decide who is superior to the two candidates’ members of the Council was eminent persons and they may be presumed to have taken into account all relevant considerations before concluding.

FACTS:

  • The Indian Statistical Institute was registered under the Societies Registration Act, and governed by the Indian Statistical Institute Act, 1959. Its control is completely vested in the Union of India, Respondent no.5 in the appeal.
  • The Institute had been declared as an ‘Institute of National Importance. Respondent no. 2 the chief executive body of the institute which consisted of 25 members of which 3 were representatives of the Central Government.
  • Respondent no.4 a director was appointed to discharge academic and administrative duties of the institute. 
  • The petitioner challenged the appointment of Respondent no. 4 because he was much more highly qualified academically and had accomplishments and is far superior to the said Respondent.

HELD:

  • The Supreme Court declared Respondent no.2 is an authority under and within the meaning of Article 12 of the Constitution, therefore the writ petition is maintainable. 
  • In the absence of publicity as contemplated by bye-law, it cannot be said that all other qualified persons like the petitioner were also considered by the selection committee for an appointment, in the absence of any application by them for the post or any recommendation of them by any other authority or individual.
  • The court further decided this will however not in any way affect the validity of any action already taken by Respondent No. 4.
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Control on Executive Law Making

State of Uttar Pradesh v. Chandra Mohan Nigam and Others, AIR 1977 SC 2411

STATE OF UTTAR PRADESH V. CHANDRA MOHAN NIGAM & OTHERS.

State Of Uttar Pradesh v. Chandra Mohan Nigam & Others. AIR 1977 SC 2411

ISSUE:

  • Whether there is a warrant for a second Review Committed under Rule 16(3)?

RULE:

  • The principle governing the order of preventive detention about effective representation against such order, is not applicable in the case of an order for compulsory retirement which casts no stigma on a government servant. The test which has been laid down in the case of preventive detention is in the context of the right to individual liberty of a person which is a fundamental right enshrined in the Constitution while the order of compulsory retirement is passed in respect of a government servant who has ceased to have a right, as such, to continue in Government service under the rules governing his employment.

FACTS:

  • Shri Nigam was a member of the Indian Administrative Service. During his service career, he had some adverse entries in his character role.
  • He was suspended in 1964, pending inquiry on account of certain strictures passed against him by the Election Tribunal, but was reinstated when the High Court expunged the strictures on appeal.
  • On December 29, 1967, Shri Nigam attained the age of 50 years, and, following the Central Government’s instructions, in October 1969, a Review Committee examined his service records under R. 16(3) of the All-India Services (DCRB) Rules 1958, as amended in 1969.
  • The Committee’s recommendation for Shri Nigam’s continuance in service was accepted by the State Government, and the Central Government did not communicate any disagreement.
  • In May 1970, the State Government set up a second Review Committee u/r. 16(3) which examined Shri Nigarm’s service records on the same materials, and recommended compulsory retirement. The recommendation was accepted, and an order dated August 22, 1970, was passed, compulsorily retiring him.

HELD:

  • It was held by the Supreme Court that since Rule 16(3) itself does not contain any guidelines, directions, or criteria, the instructions issued by the Government furnish an essential and salutary procedure to secure uniformity in the application of the rule.
  • They are embedded in the conditions of service, and are binding, on the Government, and cannot be violated to the prejudice of the Government servant.
  • It was also held that Once a Review Committee has considered the case of an employee, and the Central Government does not decide, on the report of the committee endorsed by the State Government to take any prejudicial action against an officer, there is no warrant for a second Review Committee under the scheme of Rule 16(3) read with the instructions, to reassess his case on the same materials, unless exceptional circumstances emerge in the meantime or when the next review stage arrives.