Month: July 2024

Doctrine of Legitimate Expectation: A Principle of Fairness in Administrative Law

The Doctrine of Legitimate Expectation is a pivotal principle in administrative law designed to protect individuals’ expectations that arise from promises or established practices by public authorities. Although not explicitly mentioned in the Indian Constitution, this doctrine is grounded in the broader principles of the rule of law and good governance, ensuring fairness and transparency in administrative actions.

The Doctrine of Legitimate Expectation is sometimes referred to as the principle of “Procedural Fairness” in administrative law. This is because it primarily focuses on ensuring that public authorities adhere to fair procedures when dealing with individuals who have developed legitimate expectations based on the authorities’ promises or established practices. It upholds the values of consistency, transparency, and fairness in administrative actions.

Key Aspects of the Doctrine of Legitimate Expectation

Basis of Expectation: Legitimate expectations can stem from:

Explicit Promises: Clear and unambiguous promises or assurances made by public authorities.
Established Practices: Consistent practices or conduct by public authorities that lead individuals to believe that a particular procedure or benefit will continue.

Protection Against Arbitrariness: The doctrine shields individuals from arbitrary changes in policy or practice by public authorities. When an expectation is considered legitimate, authorities are required to provide a fair hearing before altering or withdrawing the benefit or practice.
Fairness and Transparency: This doctrine mandates that public authorities act fairly and transparently, particularly when individuals have relied on their promises or established practices.

Application in Indian Judicial Decisions

Key Cases

Navjyoti Cooperative Group Housing Society v. Union of India (1992): The Supreme Court of India emphasized that the concept of legitimate expectation pertains to the need for administrative practices and policies to be consistent and fair. The court highlighted that the government should adhere to its policies unless there is a substantial reason for change.
Union of India v. Hindustan Development Corporation (1993): The Supreme Court elaborated on the doctrine, stating that legitimate expectation grants an individual the right to be heard before a decision adverse to their interest is made. The court also clarified that this doctrine does not confer a substantive right but ensures procedural fairness.
Council of Civil Service Unions v. Minister for the Civil Service (1985) (a UK case): This case has significantly influenced Indian jurisprudence. The court held that a legitimate expectation arises when a public body’s decision affects an individual’s rights or interests based on the public body’s promises or regular practice.
Punjab Communications Ltd. v. Union of India (1999): The Supreme Court reiterated that the doctrine is rooted in fairness and the rule of law. The court stated that if a public authority deviates from a promise or established practice, it must act fairly and provide an opportunity for the affected party to present their case.
Madras City Wine Merchants’ Association v. State of Tamil Nadu (1994): The court ruled that the government must respect the legitimate expectations of traders based on long-established practices unless there is a valid reason for change, in which case due process must be followed.

Limitations and Conditions

No Enforceable Right: Legitimate expectation does not create a substantive right. It ensures a right to be heard and procedural fairness before expectations are altered.
Public Interest: If overriding public interest necessitates a change in policy or practice, the legitimate expectation may not hold. However, the authority must still follow fair procedures.
Reasonableness: The expectation must be reasonable and lawful. If the promise or practice is against the law or public policy, it cannot create a legitimate expectation.
Discretionary Nature: Public authorities have the discretion to change policies and practices. The doctrine ensures that such changes are not arbitrary and that individuals affected by the changes are given a fair hearing.

Conclusion

The Doctrine of Legitimate Expectation under the Indian Constitution plays a crucial role in administrative law by ensuring that public authorities act fairly, transparently, and consistently. It provides a procedural safeguard for individuals against arbitrary administrative actions, thereby upholding the principles of natural justice and the rule of law. By protecting individuals’ expectations based on promises or established practices, this doctrine reinforces the trust between citizens and public authorities, contributing to a more just and equitable administrative system.

Terrorist act under BNS

Chapter VI: OF OFFENCES AFFECTING THE HUMAN BODY U/S.113. (1) Whoever commits any act with the intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India, or with the intent to strike terror or likely to strike terror in the people or any section of the people in India or any foreign country, by means such as:

(a) Using bombs, dynamite, or other explosive substances, inflammable substances, firearms, or other lethal weapons, or poisonous, noxious gases, chemicals, or any hazardous substances (whether biological, radioactive, nuclear, or otherwise) or any other means of whatever nature to cause or likely to cause:

(i) Death or injury to any person or persons;
(ii) Loss, damage, or destruction of property;
(iii) Disruption of any supplies or services essential to the life of the community in India or any foreign country;
(iv) Damage to the monetary stability of India through production, smuggling, or circulation of counterfeit Indian paper currency, coins, or any other material;
(v) Damage or destruction of any property in India or abroad used or intended for defense purposes or in connection with other purposes of the Government of India, any State Government, or their agencies;

(b) Overawes by means of criminal force or the show of criminal force, or attempts to do so, or causes the death of any public functionary or attempts to cause the death of any public functionary;

(c) Detains, kidnaps, or abducts any person and threatens to kill or injure such person or commits any act to compel the Government of India, any State Government, or the government of a foreign country, an international or inter-governmental organization, or any other person to do or abstain from doing any act, commits a terrorist act.

Explanation.—For the purposes of this sub-section:

(a) “Public functionary” means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as a public functionary;

(b) “Counterfeit Indian currency” means the counterfeit currency as may be declared after examination by an authorized or notified forensic authority that such currency imitates or compromises the key security features of Indian currency.

(2) Whoever commits a terrorist act shall:

(a) If such an offence results in the death of any person, be punished with death or imprisonment for life, and shall also be liable to a fine;
(b) In any other case, be punished with imprisonment for a term not less than five years but which may extend to imprisonment for life, and shall also be liable to a fine.

(3) Whoever conspires or attempts to commit, or advocates, abets, advises, or incites, directly or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act, shall be punished with imprisonment for a term not less than five years but which may extend to imprisonment for life, and shall also be liable to a fine.

(4) Whoever organizes or causes to be organized any camp or camps for imparting training in terrorist acts, or recruits or causes to be recruited any person or persons for the commission of a terrorist act, shall be punished with imprisonment for a term not less than five years but which may extend to imprisonment for life, and shall also be liable to a fine.

(5) Any person who is a member of an organization involved in terrorist acts shall be punished with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to a fine.

(6) Whoever voluntarily harbors or conceals, or attempts to harbor or conceal any person knowing that such person has committed a terrorist act shall be punished with imprisonment for a term not less than three years but which may extend to imprisonment for life, and shall also be liable to a fine:

Provided that this sub-section shall not apply to any case in which the harbor or concealment is by the spouse of the offender.

(7) Whoever knowingly possesses any property derived or obtained from the commission of any terrorist act or acquired through the commission of any terrorist act shall be punished with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to a fine.

**Explanation.—For the removal of doubts, it is hereby declared that an officer not below the rank of Superintendent of Police shall decide whether to register the case under this section or under the Unlawful Activities (Prevention) Act, 1967.

Description:

For the first time, the offence of terrorism has been introduced in the general law of the land, and the act of terrorism has been clearly defined. Section 113 has been drafted on the lines of the Unlawful Activities (Prevention) Act (UAPA). It provides for punishment for the commission, attempt, abetment, conspiracy, membership of any terrorist organization, recruitment or organization of camps for training, harboring or concealing any person who has committed a terrorist act, and possession of proceeds of crime or property obtained or derived from the commission of a terrorist act. The penalties include the option of death or life imprisonment without parole.

Counterfeiting Indian currency has also been covered under this section as a terrorist act, similar to the UAPA. Destruction of any property in India or abroad, disruption of essential services, and damage to the monetary stability of India are also addressed under this section.

The provision recognizes the term “public functionary,” encompassing constitutional authorities and other functionaries notified by the Central Government. Criminal force or attempts to cause the death of a public functionary falls under the purview of terrorism. Destruction of public facilities or private property is now criminalized as a terrorist act.

This section addresses terrorism beyond international borders. It includes acts that result in damage by way of the destruction of critical infrastructure, recognizing the global threat of international terrorism. Special attention is given to vulnerabilities posed by cyber-attacks on critical infrastructures, thereby encompassing a broad range of modern terrorist activities.

Conclusion:

This comprehensive legal provision aims to strengthen national security by ensuring that all forms of terrorism are addressed with the utmost seriousness. It provides law enforcement agencies with the necessary legal tools to prevent and combat terrorism effectively, thereby safeguarding the unity, integrity, and security of the nation. The explicit inclusion of modern threats, such as cyber-attacks, underscores the forward-looking approach of the legislation in adapting to contemporary challenges.

Overall, Section 113 serves as a robust framework for deterring and prosecuting terrorist activities, reinforcing India’s commitment to maintaining internal and external security in an increasingly complex global landscape.

The Doctrine of Proportionality

The Doctrine of Proportionality is a pivotal judicial principle that ensures government actions, particularly those that limit fundamental rights, are appropriate, necessary, and not excessive. This doctrine plays a critical role in constitutional law, striking a balance between the rights of individuals and the interests of the state. Its application spans various jurisdictions, serving as a cornerstone for judicial review in democracies worldwide.

The Doctrine of Proportionality is also known as the “Principle of Proportionality.” This principle is widely recognized in various legal systems and jurisdictions, serving as a fundamental aspect of constitutional and administrative law. It ensures that any action taken by the government that affects individual rights must be proportionate to the aim pursued, thereby preventing excessive or arbitrary interference with those rights.

Key Components of the Doctrine of Proportionality

The Doctrine of Proportionality involves a structured four-step test to evaluate the validity of governmental actions:

Legitimate Aim: The government measure must pursue a legitimate aim, meaning the purpose behind the action or law must be valid and recognized as important by law.
Suitability or Rational Connection: The measure must be suitable to achieve the intended objective, indicating a rational connection between the measure and the aim it seeks to achieve.
Necessity: The measure must be necessary, implying no less restrictive but equally effective alternative should be available to achieve the same objective.
Balancing or Proportionality Stricto Sensu: The benefits gained by achieving the objective must outweigh the harm caused to the rights infringed, balancing the rights of the individual against the interests of the community or state.

Application in Different Jurisdictions

India

In India, the Doctrine of Proportionality has been increasingly recognized and applied by the judiciary, particularly in cases involving fundamental rights under the Constitution of India.

Modern Dental College and Research Centre v. State of Madhya Pradesh (2016)

Facts: This case involved the regulation of admission to private professional educational institutions.
Judgment: The Supreme Court of India explicitly recognized and applied the Doctrine of Proportionality, stating that any restriction on fundamental rights must be proportionate to the need for such a restriction.
Constitutional Articles: The judgment relied on Article 19(1)(g) (right to practice any profession or to carry on any occupation, trade, or business) and its reasonable restrictions under Article 19(6).

2. Anuradha Bhasin v. Union of India (2020)

Facts: This case assessed the restrictions imposed on internet services in Jammu and Kashmir.
Judgment: The Supreme Court held that restrictions on fundamental rights must satisfy the test of proportionality.
Constitutional Articles: The judgment emphasized Articles 19(1)(a) (freedom of speech and expression) and Article 19(1)(g).

3. KS Puttaswamy v. Union of India (2017)

Facts: This landmark judgment dealt with the right to privacy as a fundamental right.
Judgment: The Supreme Court applied the Doctrine of Proportionality to hold that any encroachment on privacy must meet the proportionality test.
Constitutional Articles: The case hinged on Article 21 (protection of life and personal liberty) and its interplay with other fundamental rights.

European Union

The Doctrine of Proportionality is a fundamental principle in the jurisprudence of the European Court of Human Rights (ECHR) and the Court of Justice of the European Union (CJEU).

ECHR: The European Court of Human Rights uses this doctrine to ensure that restrictions on the rights enshrined in the European Convention on Human Rights are justified and necessary in a democratic society.

United Kingdom

The Doctrine of Proportionality is a critical component of the Human Rights Act 1998, which incorporates the European Convention on Human Rights into UK law.

Huang v. Secretary of State for the Home Department (2007)

Facts: This case involved the lawfulness of immigration decisions affecting family life under Article 8 of the European Convention on Human Rights.
Judgment: The House of Lords applied the proportionality test to assess the immigration decisions.

Constitutional Support in India

The Doctrine of Proportionality in India primarily draws support from the following articles of the Indian Constitution:

Article 14: Right to equality before the law and equal protection of the laws.
Article 19: Protection of certain rights regarding freedom of speech, etc. The doctrine is often invoked in the context of reasonable restrictions under Article 19(2) to 19(6).
Article 21: Protection of life and personal liberty. The right to privacy as interpreted in the Puttaswamy case is a significant application of this doctrine.

Conclusion

The Doctrine of Proportionality serves as a crucial safeguard in constitutional law, ensuring that any governmental interference with fundamental rights is justified, necessary, and balanced. It provides a structured framework for courts to evaluate the legitimacy and impact of legislative and executive actions, thereby upholding the principles of democracy and the rule of law. This doctrine continues to evolve and be refined through judicial decisions, playing a vital role in protecting individual rights against arbitrary and excessive governmental actions. By ensuring that governmental measures are not disproportionate, this doctrine upholds the sanctity of fundamental rights while allowing for necessary limitations in the interest of public welfare.

Organized Crime under BNS

Chapter VI: Offences Affecting the Human Body U/Sec. 111. (1) define the organized crime. it means any continuing unlawful activity, including but not limited to kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, severe cyber-crimes, and trafficking of persons, drugs, weapons, or illicit goods or services, as well as human trafficking for purposes such as prostitution or ransom, conducted by any individual or group acting in concert, whether singly or jointly, as a member of an organized crime syndicate or on behalf of such a syndicate, by employing violence, threats of violence, intimidation, coercion, or any other unlawful means to obtain direct or indirect material benefits, including financial gain, shall constitute organized crime.

Explanation:
For the purposes of this subsection:
(i) “Organized crime syndicate” refers to a group of two or more individuals who, either singly or jointly, as a syndicate or gang, engage in any continuing unlawful activity.
(ii) “Continuing unlawful activity” denotes any activity prohibited by law that is a cognizable offence punishable with imprisonment of three years or more, undertaken by any person, either singly or jointly, as a member of an organized crime syndicate or on behalf of such a syndicate. This includes activities for which more than one charge-sheet has been filed before a competent court within the preceding ten years, and the court has taken cognizance of such offences. It also encompasses economic offences.
(iii) “Economic offence” includes crimes such as criminal breach of trust, forgery, counterfeiting of currency notes and government stamps, hawala transactions, mass-marketing fraud, or any scheme intended to defraud multiple persons or defraud any bank or financial institution to obtain monetary benefits in any form.

(2) The punishment for committing organized crime shall be as follows:
(a) If the offence results in the death of any person, the perpetrator shall be punished with death or imprisonment for life and shall also be liable to a fine of not less than ten lakh rupees.
(b) In any other case, the perpetrator shall be punished with imprisonment for a term not less than five years, which may extend to life imprisonment, and shall also be liable to a fine of not less than five lakh rupees.

(3) Any person who abets, attempts, conspires, or knowingly facilitates the commission of organized crime, or engages in any preparatory acts for organized crime, shall be punished with imprisonment for a term not less than five years, which may extend to life imprisonment, and shall also be liable to a fine of not less than five lakh rupees.

(4) Any individual who is a member of an organized crime syndicate shall be punished with imprisonment for a term not less than five years, which may extend to life imprisonment, and shall also be liable to a fine of not less than five lakh rupees.

(5) Whoever intentionally harbors or conceals any person who has committed organized crime shall be punished with imprisonment for a term not less than three years, which may extend to life imprisonment, and shall also be liable to a fine of not less than five lakh rupees. This subsection shall not apply if the harboring or concealment is done by the spouse of the offender.

(6) Whoever possesses any property derived from or obtained through the commission of organized crime, or the proceeds of organized crime, shall be punished with imprisonment for a term not less than three years, which may extend to life imprisonment, and shall also be liable to a fine of not less than two lakh rupees.

(7) If any person, on behalf of a member of an organized crime syndicate, possesses movable or immovable property that cannot be satisfactorily accounted for, they shall be punished with imprisonment for a term not less than three years, which may extend to ten years, and shall also be liable to a fine of not less than one lakh rupees.

Description:
This section is dedicated to combating organized crime, eliminating any space for unlawful activities orchestrated by syndicates that pose a grave threat to the internal security of the country.

Key Points:

Definition: Section 111(1) of BNS 2023 defines organized crime, covering a range of offenses such as kidnapping, robbery, vehicle theft, extortion, contract killing, severe cyber-crimes, and human trafficking.
Petty Organized Crime: Offences not clearly defined or non-existent in the previous statute are now addressed in a separate section, 112 (Petty Organized Crime), which includes snatching, shoplifting, betting or gambling, and selling examination papers.
Clarifications: It further explains organized crime syndicates and continuous unlawful activities. Acts committed individually or by organized crime syndicates, using violence, threats, or coercion, are now punishable.
Economic Offences: Defined to include a range of crimes such as criminal breach of trust, forgery, counterfeiting currency notes, hawala transactions, mass-marketing fraud, and schemes to defraud institutions.

Stringent Punishment:

If the offence results in the loss of life, the perpetrator faces the death penalty or life imprisonment, with a mandatory fine of not less than Rs. 10 lakhs.
Provisions exist for individuals aiding in the commission of organized crimes, being a member of an organized syndicate, intentionally harboring or concealing any person committing organized crime, and dealing with proceeds of organized crime, outlining appropriate punishments.

Cognizable and Non-bailable Offence:
Organized crime is a cognizable and non-bailable offence, triable by a Sessions court, ensuring stringent punishment for such activities.

Conclusion

The BNS has taken significant steps to address the multifaceted threat of organized crime by introducing clear and comprehensive definitions and stringent punishments for such offences. By defining organized crime in Section 111(1), including a range of severe activities such as kidnapping, robbery, and human trafficking, and providing detailed explanations of terms like “organized crime syndicate” and “continuing unlawful activity,” the BNS aims to ensure no ambiguity in the legal framework.

Additionally, the introduction of Section 112, which covers petty organized crimes such as snatching and shoplifting, helps in addressing offences that were previously undefined or non-existent in the statute. This two-tier approach enables law enforcement agencies to tackle both major and minor organized crimes effectively.

The law prescribes severe punishments for those involved in organized crime, including death or life imprisonment for offences resulting in death and substantial fines. It also outlines penalties for those who abet, attempt, conspire, or facilitate organized crimes, members of organized crime syndicates, and individuals harboring offenders or possessing proceeds from organized crime.

By categorizing organized crime as a cognizable and non-bailable offence triable by Sessions courts, the BNS reinforces its commitment to internal security and public safety. The robust legal framework ensures that organized crime syndicates cannot operate with impunity, thereby protecting citizens from the pervasive threat of organized crime and maintaining public order and trust in the legal system.

Month: July 2024

Doctrine of Legitimate Expectation: A Principle of Fairness in Administrative Law

Key Aspects of the Doctrine of Legitimate Expectation