Other Judicial Remedies
Declaratory Remedies
Beyond the extraordinary writ jurisdiction, civil courts offer other important remedies against unlawful administrative action. One such remedy is a declaratory decree or declaration. This is a judicial statement that confirms or denies a legal right or status. It is a non-coercive remedy, meaning it does not command anyone to do anything or to pay damages. It simply declares the law as it applies to a particular situation.
The power to grant declaratory relief is provided under the Specific Relief Act, 1963 in India.
Declaration of rights
A person can file a civil suit seeking a declaration from the court on a matter of legal right or status. In the context of administrative law, this remedy is used to:
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Declare an administrative action as ultra vires or void: A person affected by an administrative order can seek a declaration from a civil court that the order is illegal and therefore not binding on them.
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Clarify a legal status: A public servant who has been wrongfully dismissed from service can seek a declaration that their dismissal was illegal and that they continue to be in service.
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Determine the validity of a rule or by-law: A suit can be filed for a declaration that a piece of delegated legislation is invalid because it is unconstitutional or outside the scope of the parent act.
Advantages and Disadvantages
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Advantage: It is a useful remedy for clarifying legal uncertainty before a coercive action is taken. For example, a company can seek a declaration on whether a particular license is required for its business before the authorities threaten to shut it down.
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Disadvantage: As it is merely declaratory, it may not be sufficient if the administrative authority refuses to respect the court's declaration. In such cases, the plaintiff may need to seek further remedies like an injunction or a writ of mandamus.
Example 1. A municipal corporation issues a notice to a homeowner, claiming their building is an illegal encroachment and must be demolished. The homeowner believes the notice is based on a wrong interpretation of the building bye-laws.
Answer:
The homeowner can file a civil suit seeking a declaration from the court that the notice issued by the municipal corporation is illegal and void. They can also seek a consequential relief of an injunction to prevent the demolition. The court will examine the bye-laws and the facts of the case and declare the rights of the parties.
Injunctions
An injunction is a judicial order restraining a person from beginning or continuing an action, or compelling them to carry out a certain act. It is a powerful equitable remedy available in civil courts, also governed by the Specific Relief Act, 1963, and the Code of Civil Procedure, 1908. Injunctions are a vital tool for providing immediate relief against illegal administrative actions.
Preventive and Mandatory injunctions
Injunctions can be of different types, primarily preventive and mandatory.
| Type of Injunction | Description | Purpose |
|---|---|---|
| Preventive (or Prohibitory) Injunction | This is a court order that prohibits a person or authority from doing a particular act. It is used to prevent a future or continuing wrong. | To stop an administrative authority from taking an action that is ultra vires, illegal, or would cause irreparable injury to the plaintiff. For example, an injunction to prevent the government from illegally demolishing a building. |
| Mandatory Injunction | This is a court order that compels a person or authority to perform a certain positive act to restore the previous state of affairs. It is granted to undo the effects of a wrongful act. | To compel an administrative authority to rectify a wrong it has already committed. For example, an injunction to compel the electricity board to restore a wrongfully disconnected power supply. |
Injunctions can also be classified based on their duration:
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Temporary (or Interlocutory) Injunction: Granted at the beginning of a suit to maintain the status quo until the case is finally decided. It is a form of immediate, temporary relief.
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Perpetual (or Permanent) Injunction: Granted as part of the final decree after the court has heard the case on its merits. It permanently restrains the defendant from committing the wrongful act.
A court will generally grant an injunction if the plaintiff can show a prima facie case, that the balance of convenience is in their favour, and that they would suffer irreparable injury if the injunction is not granted.
Suit for Damages against Administrative Authorities
When an individual suffers injury or loss due to a wrongful or negligent act of a public official, they may have the right to file a civil suit to claim damages (monetary compensation) from the state. This area of law is complex because it involves the doctrine of vicarious liability of the State and the historical concept of sovereign immunity.
Sovereign Immunity and its Dilution
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Historical Rule: The traditional common law rule was that "the King can do no wrong," meaning the state could not be sued for the torts (civil wrongs) committed by its servants. This was the doctrine of sovereign immunity.
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Indian Position: Article 300 of the Indian Constitution states that the Government of India may be sued in relation to its affairs. The Supreme Court, in the case of State of Rajasthan v. Vidyawati (1962), largely rejected the doctrine of sovereign immunity and held the state liable for the torts of its employees committed in the course of their employment, just like any private employer.
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Sovereign vs. Non-Sovereign Functions: However, the courts carved out an exception. They distinguished between "sovereign functions" (acts that can only be performed by the state, like maintaining an army or administering justice) and "non-sovereign functions" (acts that could also be performed by a private person, like running a business or maintaining a road). The state was held to be immune from liability only for torts committed in the exercise of its sovereign functions.
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Modern Trend: The distinction between sovereign and non-sovereign functions has been heavily criticized as being outdated and confusing. The modern trend of the judiciary is to narrow the scope of sovereign immunity as much as possible. In cases of violation of fundamental rights, especially Article 21, the Supreme Court has awarded "constitutional tort" damages against the state even for acts traditionally considered sovereign, such as wrongful arrest by the police.
Therefore, a suit for damages is an important remedy, particularly where the citizen has suffered financial loss due to the malfeasance or negligence of a public authority.
Civil and Criminal Proceedings against Public Servants
While the state may be vicariously liable, the public servant who committed the wrongful act can also be held personally accountable through civil and criminal proceedings. However, to protect public servants from frivolous or vexatious litigation that could hinder their ability to perform their duties, the law provides certain procedural safeguards.
Civil Proceedings
Section 80 of the Code of Civil Procedure, 1908, provides a key procedural safeguard. It states that no civil suit can be filed against the Government or a public servant in respect of any act purported to be done by such public servant in his official capacity, until the expiration of two months' notice has been delivered. The notice must state the cause of action, the name and description of the plaintiff, and the relief claimed. The purpose of this notice period is to give the government or the public servant an opportunity to review the case and offer a settlement without going to court.
Criminal Proceedings
Section 197 of the Code of Criminal Procedure, 1973, provides protection to public servants from criminal prosecution. It states that no court shall take cognizance of a criminal offence alleged to have been committed by a public servant (who is not removable from office save by or with the sanction of the Government) while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the competent government (Central or State).
The object of this "sanction for prosecution" is to protect public servants from harassment through malicious criminal cases. The sanctioning authority examines the case to see if there is a prima facie case against the official before allowing the prosecution to proceed. However, the Supreme Court has clarified that this protection is not available for acts that have no reasonable connection to the official's duties (e.g., taking a bribe).