Judiciary Control Over Executive And J&K Habeas Corpus Status
Post on 06,September 2019   6:00 PM
By - Miss. Vibha Yadav
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The power of the courts to examine the legality of the official's acts and thereby to safeguard the rights of the citizens. It also implies the right of citizen to bring a civil or criminal suit in the courts against a public servant for the wrong done to him in course of discharge of his public duties. Primary objective of judicial control is the protection of private rights. Judicial intervention is restrictive in nature and sometimes limited in the scope.

Scope of judicial intervention: There is no hard and fast rule for it but judiciary intervene on the following grounds.
  1. Lack of jurisdiction : Every officer has to act within the define limit of authority and also within the specific geographical area. In case of any exceed, his/her act declared by the courts as ultra virus and hence ineffective. 
  2. Sometimes public official may misinterpret laws and imposed restrictions on the citizen. In this situation citizens can approach court.
  3. In case of error in facts finding or misinterpreting the fact can affect citizens adversely and citizen can approach the courts.
  4. If a public official uses his power to take personal revenge.
  5. If officials are not following the prescribed procedure, the court have right to question the legality of their action, on appeal of party affected.
Form of judicial control

Judicial review:The power of judiciary to review and determine the validity of a law or an order. In India, normally the courts do not interfere will purely administrative action, unless it is ultra virus in regard to it's scope.
In case of USA and India, it is the duty of the courts to see administration functions not only in accordance with the rule of law but also subjects to the provisions of the constitution.

Statutory Appeals:Appeals to the courts, lower or higher administrative tribunals, are to be provided by statues. It also specify whom to appeal and what action can be taken.

Suits against government:The question of liability of states arises in connection with contracts or torts. The liability of the government to pay for the services is well expected and a tort is a wrongful action or inquiry for which a suit for damages lies.

In India, government could not be suit for torts for purposes sovereign functions but could be sued for contracts but municipalities and local bodies are liable for both tort and contract because they do not excercise purely sovereign functions.

Civil and criminal suits against public servants: In India the president and the government are immune for any kind of legal action for any act during the exercise of the power. During office, even in respect to their personal acts they are immune from any criminal proceedings, imprisonment or arrest(not civil proceedings).

Judicial officials are completely immune from liability of thier act while acting in judicial capacity. Non judicial officials including the executive heads are exempt from personal liability for the contracts made or executed for the purpose of the constitution.

Extraordinary judicial remedies: According to article 32, Supreme court has the power to issue writs of Habeas corpus, Mandamus, Prohibition, Certiorari and Quo Warranto for the enforcement of any rights conferred by part 3rd of constitution.

Limitations of judicial control
  • All administrative actions are not subject to judicial control.
  • Judiciary can not take cases suo motu.
  • Judicial process is very slow and cumbersome.
  • Sometimes the remedies offered by the law courts are inadequate and ineffective.
  • Judiciary action is incredibly expensive.
  • Judges are legal experts where as the administration is highly technical activity and sometimes their legal mindset hinder to come on right decision.
Way ahead: According to L.D. white " At one extreme, the vigour of judicial control may paralyse effective administration, at the other the result may be an offensive bureaucratic tyranny, exactly where the balance may be the best struck."

 


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