Indian Polity Part 4 – Citizen and administration


Extraordinary Remedies

These consist of the following six kinds of writs issued by the courts

Habeas Corpus – 

  • A writ of habeas corpus directs a person, usually a prison warden, to produce the prisoner and justify the prisoner’s detention.

  • If the prisoner argues successfully that the incarceration is in violation of a constitutional right, the court may order the prisoner’s release.

  • Habeas corpus relief also may be used to obtain custody of a child or to gain the release of a detained person who is insane, is a drug addict, or has an infectious disease.

  • It literally means “to have the body of.” It is an order issued by the court to the person who has detained another person, to produce the body of the letter before it.

  • The court will set the imprisoned person free if the detention is illegal. This writ is a bulwark of individual liberty against arbitrary detention.

   Mandamus 

  • A writ or order that is issued from a court of superior jurisdiction that commands an inferior tribunal, corporation, Municipal Corporation, or individual

  • To perform, or refrain from performing, a particular act, the performance or omission of which is required by law as an obligation.

Prohibition 

  • It literally means ‘to forbid’. It is issued by a higher court to a lower court when the latter exceeds its jurisdiction.

Certiorari  

  • It literally means ‘to be certified’. It is issued by a higher court to a lower court for transferring the records of proceedings of a case pending with it.

  • For the purpose of determining the legality of its proceedings or for giving a fuller and a more satisfactory effect to them than could be done in the lower court.

  • Thus unlike the Prohibition which is only preventive, the Certiorari is both preventive as well as curative. Like Prohibition, it can be issued only against judicial and quasi – judicial authorities and not against administrative authorities.

 

 Quo Warranto 

  • It literally means ‘by what authority or warrant.’ It is issued by the courts to inquire into the legality of the claim of a person to a public office.

  • Therefore, it prevents the illegal assumption of public office by a person.

 Injunction 

  • It is issued by the court asking a person to do a thing or refrain from doing it.


Citizen and administration

  • Modern democratic states are characterised by welfare orientation. Hence, the government has come to play an important role in the socio – economic development of the nation.

  • This resulted in the expansion of bureaucracy and multiplication of administrative process, which in turn increased the administrative power and discretion enjoyed by the civil servants at different levels of the government.

  • The abuse of this power and discretion by the civil servants opens up scope for harassment, malpractices, maladministration and corruption.

  • Such a situation gives rise to citizen’s grievances against the administration. Different countries have evolved various institutions to deal with such situations.


Some important are:

  • The Ombudsman System

  • The Administrative Courts System

  • The Procurator System

  • The institution of ombudsman was first created in Sweden in 1809. ‘Ombud’ is a Swedish term and refers the person who acts as the representative or spokesman of another person.

  • According to Donald C. Rowat. Ombudsman refers to an officer appointed by the legislative to handle complaints against the administrative and judicial action.

  • Another unique institutional device created for the redressal of citizens grievances against administrative authorities is the French system of Administrative courts.

  • Due to its success in France, the system has gradually spread to many other European and African countries like Belgium, Greece, and Turkey.

Anti-Corruption

The existing legal and institutional framework to check corruption and redress citizen’s grievances in India consist of the following:

  • Public Servants (Enquiries) Act, 1850

  • Indian Penal Code, 1860

  • Special Police Establishment Act, 1946

  • Prevention of Corruption Act, 1947

  • Commission of Inquiry Act, 1952 (against political leaders and eminent public men)

  • All India Services (Conduct) Rules, 1954

  • Central Civil Services (Conduct) Rules, 1955

  • Railways Services (Conduct) Rules, 1955

  • Vigilance organisations in ministries/ departments attached and subordinate offices and public undertakings

  • Central Vigilance Commission, 1964

  • State Vigilance Commissions, 1964

  • Anti-corruption bureaus in States

  • Lokayukta (Ombudsman) in states

Central Bureau of Investigation

  • The central bureau of investigation was set up in 1963 by a resolution of the ministry of Home Affairs.

  • The CBI is the investigating agency of the central government. It plays an important role in preventing corruption and maintaining integrity in administration.

  • It also provides assistance to the central vigilance commission.

The functions of CBI are:

  • Investigating cases of corruption, bribery, and misconduct of the Central government employees.

  • Investigating cases relating to infringement of fiscal and economic laws that is the breach of laws concerning export and import control.

  • Customs and central excise, income tax, foreign exchange regulations and so on. However, such cases retaken up either in consultation with or at the request of the department concerned.

  • Investigating serious crimes committed by organised gangs of professional criminals, having national and international ramifications.

  • Coordinating the activities of the anti – corruption agencies and the various state police forces.

  • Taking up, on the request of a state government, any case of public importance for investigation.

  • Maintaining crime statistics and disseminating criminal information.

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