The
State of Bihar & Ors Vs. Subhash Singh [1997]
INSC 116 (3 February 1997)
K.
RAMASWAMY, G.T. NANAVATI
ACT:
HEAD NOTE:
O R D
E R Delay condoned.
This
special leave petition arises from the order dated July 19, 1996 imposing costs personally against the respondent passed by
the Patna High Court in M.J.C. No 1488 of 1995.
The
Constitution of India is the supreme law of the land, having flown from
"We, the people of India, i.e., Bharat, having solemnly
resolved to constitute India into a sovereign, socialist,
secular democratic republic. The sovereign power is distributed among the
Legislature, the Executive and the Judiciary with checks and balances but not
in water tight rigid would. In our democracy governed by the rule of law, the
Judiciary has expressly been entrusted with the power of judicial review as sentinal
in qui vive.
Basically
judicial review of administrative actions as also of legislation is exercised
against the action of the State.
Since
the State or public authorities act in exercise of their executive or
legislative power, they are amenable to the judicial review. The State,
therefore, is subject to etat de droit, i.e. the State is submitted to the law
which implies that all actions of the State or its authorities and officials
must be carried out subject to the Constitution and within the limits set by
the law, i.e., constitutionalism. In other words, the State is to obey the law.
The more the administrative action in our welfare State expands widely touching
the individuals, the more is the scope of judicial review of State action.
Judicial review of administrative action is, therefore, an essential part of
rule of law, The judicial control on administrative action, thus, affords the
courts to determine not only the constitutionality of the law but also the
procedural part of administrative action as a part of judicial review. The
constitution has devised permanent bureaucracy as part of the political
executive. By operation of Article 53 read with Articles 73 and 74 as well as
Article 154 read with Articles 163 and 166, the business of the State is
carried on in accordance with the rules of business issued by the President/the
Governor, as the case may be, or the rules made for the subordinate officers in
that behalf. The normal principle that the permanent bureaucracy is accountable
to the political executive is subject to judicial review. The doctrine of
"full faith and credit" applied to the acts done by the officers and
presumptive evidence of regularity of official acts done or performed, is
apposite in faithful discharge of duties to elongate public purpose and to be
in accordance with the procedure prescribed. It is now settled legal position
that the bureaucracy is also accountable for the acts done in accordance with
the rules when judicial review is called to be exercised by the Courts. The hierarchichal
responsibility for the decision is their in- built discipline. But the head of
the Department/designated officer is ultimately responsible and accountable to
the Court for the result of the action done or decision taken.
Despite
this, if there is any special circumstance absolving him of the accountability
or if someone else is responsible for the action, he needs to bring them to the
notice of the Court so that appropriate procedure is adopted and action taken.
The controlling officer holds each of them responsible at the pain of
disciplinary action. The object thereby is to ensure compliance of the rule of
law.
The
constitutional Courts exercise their power of judicial review with constraint
to ensure that the authorities on whom the power is entrusted under the rule of
law or confide, is discharged truely, objectively, expeditiously for the
purpose for which substantive acts/results are intended. The petitioner being a
member of the permanent executive, is enjoined to comply with the orders of the
Court passed in exercise of the judicial review. On an earlier occasion, while
disposing of the writ petition, the High Court had directed the respondent to
consider the case of the writ petitioner and to dispose it of with reasoned
order within two months. Obviously, the high Court expected that the
authorities would discharge their duties expeditiously as enjoined under the
rules and as per the directions. Since they did not discharge the duty,
necessarily, they were required to give explanation to the Court as to the
circumstances in which they could not comply with the direction issued by the
Court or if there was any unavoidable delay, they should have sought further
time for compliance. Unfortunately, neither of the steps have been taken by the
officer in that regard. Therefore, the High Court was constrained to impose the
costs personally against him for non-compliance of the order.
It is
true and we are alive to the fact that when the officer is to take steps as per
the decision, some delay may occasion and generally the Courts would be
reluctant to impose costs personally against the officers. But the officers are
required to go to the Court, give the appropriate explanation and satisfy the
Court that they were prevented by circumstances for non-compliance within the
time specified by the Court. It is equally salutary to note that if the High
Court feels it necessary to impose costs personally against the officers, the
Court is required to enquire after giving notice and reasonable opportunity to
the officer who could not be impleaded earlier or was not on record, to explain
the reasons for non-compliance of the order or decision taken to file the
proceedings. Take for instance, delay in filing of an appeal or revision. It is
known fact that in transaction of the Government business, none would own
personal responsibility and decisions are leisurely taken at various levels. It
is not uncommon that delay would be deliberately caused to confer advantage to
the opposite litigant; more so when stakes involved are high or persons are
well connected/influential or due to obvious considerations. The Courts,
therefore, do not adopt strict standard of proof of every day's delay. The
imposition of costa on officers for filing appeals causes public injustice and
gives the manipulators an opportunity to compound the camouflage. Secondly, the
imposition of costs personally against the officers will be counter productive
and officers would desist to pursue genuine cases of public benefit or
importance or of far reaching effect on public administration or exchequer
deflecting course of justice.
The
Court before imposing costs personally against the officers should be
circumspect and keep at the back of its mind the facts and circumstances in
each case. Otherwise, public justice will suffer irremediably. Unfortunately,
in this case the delay in compliance is of one year and five months and the
officer has not explained. The High Court was constrained to impose personal
costs against the officer. Under the circumstances, we do not think that it is
a fit case for interference.
The
special leave petition is accordingly dismissed.
Back
Pages: 1 2
