Remedies for administrative action– Statutory Remedies, Equitable Remedies, Ombudsman
UBI JUS IBI REMEDIUM denotes ‘Where there is a Right, there is a remedy’. Remedy denotes the manner in which a right is enforced or satisfied by a Court in case of its violation. The person whose right is being infringed has a right to enforce the infringed right through an action before a court The affected party should establish his/her substantive right infringed by the defendant in an action before a court of law.
Divergence of the remedies into judicial and extra-judicial remedies.
In general, judicial remedies may be divided into
1. Constitutional (Legal Remedies)
2. Statutory remedies (Civil, Criminal)
3. Equitablel Remedies.
Constitutional remedies consist of remedies by Prerogative writs such as Habeas Corpus, Certiorari, Mandamus, Injunction and Quo- Warranto, by the constitutional courts, i.e. the Supreme Court and the High Courts of Art-32 and 226, and by orders under other Articles such as Art- 131 to 136, 137(Curative Relief), 142, 227, etc.
A remedy given under a statute authority is called Statutory Remedy. Statutory remedies are not equivalent to constitutional remedies. As a substantive remedy,.relief which could not be achieved through.a writ could be provided. Ex: Enforcement of payment of money. Many of the remedies of private law, such as a civil suit for seeking damages, an injunction or a declaration are extended to public law as well.
Statutory remedies may be divided into
a) Civil Remedies (General and Specific)
b) Criminal Remedies. (Punishments, monetary compensation)
General Statutory Civil Remedies –
- Injunctions ( Perpetual/Mandatory, Temporary)
- Declaratory Actions, Specific Performance, Restitution, Recovery of legal costs i.e. advocate fee, court expenses etc., Recovery of possession of property and
- Damages- liquidated, unliquidated & statutory etc (Include nominal, substantial, Penal or exemplary etc)
Remedies under CONTRACTS:
- Compensation for loss or damage by breach of contract
- Liquidated damages
- Specific Performance.
Remedies under TORTS:
• Decree for Possession.
• Expulsion of trespasser
• Re-entry on land
• Reception of goods and chattels
• Distress Damage Feasant. (cattle pound)
• Abatement of Nuisance.
Equitable remedies constitute the conscience of administration of justice. Law may fail justice, but Equity does not.
MAXIMS OF EQUITY
• Equity will not suffer a wrong to be without a remedy.
• Equity follows the law.
• Where there is equity, the law shall prevail.
• Where the equities are equal the first in time shall prevail.
• He who seeks equity, must do equity.
• He who comes into equity must come with clean hands.
• Delay defeats equity.
• Equity looks to the intent rather than to the form.
• Equality is Equity.
• Equity looks on that as done which ought to be done.
• Equity imputes an intention to fulfil an obligation.
• Equity acts in personam.
WHAT ARE LOKPAL AND LOKAYUKTA?
In India the ombudsman is known as lokpal or lokayukata.The concept of constitutional ombudsman was first proposed by the then law minister Ashok Kumar Sen in parliament in the early 1960s. Dr. L.M.Singhvi coined the term lokpal and lokayukta as the Indian ombudsman model for the redress of public grievances, it was passed in loksabha in 1968 but it was lapsed with the dissolution of lok sabha and has since lapsed several times into the lok sabha.
The Lokpal and Lokayukta Act, 2013 provided for the establishment of Lokpal for the Union and Lokayukta for States. Such entities are legislative bodies with no constitutional status. They serve as "ombudsmen" and investigate allegations of corruption againstbcertain public officials and related issues.
Lokpal and Lokayukta Act, 2013
The Lokpal and Lokayukta Act, 2013 aims to provide for the.Union and Lokayukta to be formed for States to investigate allegations of corruption against certain public officials and related matters. The act encompasses all of India, including Jammu & Kashmir, and extends to "public servants" inside and outside India. The.act requires Lokpal to be established for Union and Lokayukta for states.
Structure of lokpal
Lokpal's institution is a.statutory body, without any constitutional.protection.Lokpal is a multi-member assembly,.consisting of one chairperson.and a maximum of eight members. The person to be appointed as Chairperson of the Lokpal should be either the former Chief Justice of India or the former Supreme Court Judge, or an eminent person with impeccable integrity and exceptional ability.having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management.
Of the eight memberslimit, half will be members of the judiciary. Max fifty percent of SC/ST/OBC/Minorities and Women will be members. The Lokpal's judicial member should be either a former Supreme Court judge, or a former High Court chief justice. The non-judicial member should be a distinguished person of impeccable integrity and exceptional ability, having a minimum of 25 years of special knowledge and expertise in matters of anti-corruption policy, public administration, vigilance ,finance including insurance and banking, law and management. The members are elected by the Chair on a selection committee's recommendation. The selection committee consists of the Chairperson of the Prime Minister; the Speaker of Lok Sabha; the Leader of the Opposition in Lok Sabha; the Chief Justice of India or a Judge nominated by him/her; and one eminent Jurist.
Jurisdiction of lokpal
The Lokpal's jurisdiction will include the Prime Minister, except for allegations of corruption related to international relations, defense, public order, atomic energy and space, and unless an inquiry is authorised by a Full Bench of thebLokpal and at least two-thirds of members. It will be held in camera and, if the Lokpal so desires, the inquiry records will not be released or made available to the public. The Lokpal will also have jurisdiction over Ministers and MPs but not in the matter of anything said in Parliament or a vote given there. Lokpal’s jurisdiction will cover all categories of public servants. Jurisdiction of Lokpal includes Prime Minister, Ministers, members of Parliament, Groups A, B, C and D officers and officials of Central Government.
Powers of Lokpal
· It has the powers to superintendence over, and to give direction to CBI.
· If Lokpal has referred a case to CBI, the investigating officer in such case cannot be transferred without the approval of Lokpal.
· The Inquiry Wing of the Lokpal has been vested with the powers of a civil court.
· Lokpal has powers of confiscation of assets, proceeds, receipts and benefits arisen or procured by means of corruption in special circumstances.
· Lokpal has the power to recommend transfer or suspension of public servant connected with allegation of corruption.
· Lokpal has the power to give directions to prevent the destruction of records during the preliminary inquiry.
Author Details: Deepali Kir (Asian Law College)
The views of the author are personal only. (if any)