Farheen Dhanjal

Administrative law deals with the powers of the administrative authorities, the manner in which the powers exercised and the remedies which are available to the aggrieved person, when those powers are abused by these authorities.

The administrative process has come to stay and it has to be accepted as a necessary evil in the progressive societies, particularly in welfare state, where may scheme for the progress of society are prepared and Administered by the Government. The execution and implementation of this program may adversely affect the right of citizen. The actual problem is to reconcile social welfare with the rights of individual subjects.

 As rightly observed by, Lord Denning:

“Properly exercised, the new powers of the executive lead to the Welfare State: but abused they least to the Totalitarian State.”

ORIGIN

ENGLAND

• In 1885 Albert Venn Dicey, a British jurist, rejected the whole concept of administrative law.
• Thus, the numerous statutory discretionary powers given to the executives and administrative authorities and the control exercised over them were all disregarded to be able to form a separate branch of law by the legal thinkers. Until 20^th century, administrative law was not accepted as a separated branch of law.
• The Lord Donoughmore Committee, in 1929, recommended for better publication and control of subordinate legislation.
• The principle, king cannot do wrong, was abolished and the scope of Administrative Law expanded by virtue of the Crow Proceeding Act, 1947 which allowed initiation civil proceedings against the Crow as against any private person.
• In 1958, Tribunals and Inquiries Act was passed for better control and supervision of Administrative Decisions.
• First case where the existence of Administrative Law in the United Kingdom was declared:

Breen V Amalgamated Engineering Union [1971] 2 QB 175

UNITED STATES OF AMERICA

• Despite of many legal scholars lie Frank Good now and Ernst Freund had already authorized few books on Administrative law, the United States of America ignored the existence of administrative law until it grew up to become the fourth branch of the state.
• In 1933, special committee was appointed to determine, judicial control or administrative agencies.
• In 1946, the Administrative Procedure Act was passed which provided for judicial control over administrative actions.

INDIA

The Mauryas and the Guptas of ancient India had a centralized administrative system.

With the coming of Britishers, India went through changes when Legislations regulating administrative actions were passed.

Post independence, India adopted to become a welfare state, which increased social actions. Eventually, when activities and powers of the government and administrative authorities increased, it lead to the introduction of :

• Rule of Law
• Judicial Review of State actions, etc.

DEVELOPMENT IN INDIA

The Law Commission in it’s XIVth Report explicitly mentions the reason why administrative law grew exponentially and its need in the current scenario:

“Society in the 20th century has become exceedingly complex and governmental functions have multiplied. The change in the scope and character of the Government from negative to positive, which is from the laissez-faire to the public service state has resulted in the concentration of considerable power in the hands of the executive branch of Government.”

Societal oriented evolutions lead an increase in interaction between citizens and administrative bodies because whether it is then or now, such interactions have evolved new processes, innovations, techniques to deal with any new nature of problems that arise, to ensure the maximum welfare of people.

Interactions outpaced the need to empower administrative agencies, through:

• Discretionary power they possess,
• Unlike legislature or judiciary, have right to change or amend unsuitable or irrelevant rules without much delay in dealing with the problems single handedly,
• There extensive and diverse character (as they make policies, provide leadership and support legislature, and execute and administer the law),
• Finally, while undergoing traditional functions, administrative agencies were needed for exercising legislative power and issue plethora of rules, bye-laws and orders of various types.

REASON OF GROWTH

There could be 2 outlooks towards reasons of growth of Administrative Law:

1. On bigger picture- stages of evolution (Laissez- faire, dogma of collectivism and social welfare)
2. Into the core- series of events.

On bigger picture-

Laissez Faire:

In the early 20^th century, political gospel of laissez-faire was preached. The principles of laissez-faire were-

• Minimum control of Government
• Free enterprise
• Law and order not counted as subjects of sate
• Power said to be concentrated in the hand of an individual

CRISES OF LAISSEZ- FAIRE

• Concentration of powers
• Which led to human misery
• Widening the inadvertent gap between the poor and the rich

CONSEQUENCES

• Authoritarian rule
• Economic disparity

Dogma of Collectivism:

Principle of collectivism was all about-

• Synchronization between sate and individual
• State took control over actions of individuals
• State stood up to take responsibility for the individual’s life, liberty ad property.

Social welfare:

• State thrives on the principle of providing justice (whether social, economic or political).
• Mindset of government to interest the citizen.
• The constitution envisions to an egalitarian society.

Into the core- series of events

Philosophy changer:

The negative policy of maintaining ‘law and order’ (laissez-faire), was given up. The state has not confined it’s scope to the traditional and minimum functions of defense and administration of justice but has adopted positive policy to welfare state.

Urbanization:

Due to the emergence of Industrial Revolution in England and then factory system in our country. There arose a need for facilities, for which legislations were enacted and accordingly administrative authorities were to make schemes, lead to the growth in Administrative law.

Entertaining emergency situations:

Enacting legislations and getting assent from the President is all a lengthy process where it really comforting at administrative agency’s part to meet emergency situations, by enjoying in it’s own hands.

Inadequacy of judicial system:

Being slow, costly, complex and formalistic, judicial system was proved inadequate to decide and settle all types of disputes. It was already overburdened and it was not possible to expect speedy disposal of even very important matters. These burdening problems could not be solved by mere interpretation of provision of any statute, rather having a better approach.

Inadequate legislative process:

It had no time and technique to deal with all the deals. It was impossible for it to lay down detailed rules and procedures, and even when detailed procedures were made by the legislature, they were found to be defective at implementation. Therefore it was felt necessary to delegate some powers to the administrative authorities.

Scope for experiment:

Unlike legislature it is not necessary to continue a rule until commencement of the next session of the legislature. But in administrative process, a rule can be made, tried for some time and if it is found defective, it can be altered or modified within a short period, which is no doubt comparatively flexible character.

Technicalities, can be avoided:

Administrative law represents functional rather the theoretical and legalistic approach. The traditional judiciary is conservative, rigid and technical. It was not possible for courts to decide the cases without formalities and technicalities. The administrative tribunals are not bound by the rules of evidence and procedure and they can take a practical view of the matter to decide complex problems.

Authorities with preventive measures:

Unlike regular courts of law, they don’t have to wait for parties to come before them with disputes. In many case, these preventive actions may prove to be more effective and useful than punishing a person after he has committed a breach of any provision or law. As Freeman says, “Inspection and grading of meat answers the consumer’s need more adequately than does a right to sue the seller after the consumer is injured.

Effective enforcement:

Administrative authorities can take effective steps for enforcement of the aforesaid preventive measures; like suspension, revocation and cancellation of license, destruction of contaminated articles, etc., which are not generally available through regular courts of law.

Modernization:

In consonance with to modern beliefs of man, the attainment of socio- economic justice being a conscious goal of state policy there is a vast and inevitable increase in the frequency with which ordinary citizens come into relationship of direct encounter with state power holder.

Today’s scenario:

 The administrative law is an important weapon for bringing about harmony between power and justice. The emergence of the social welfare has:

• Led to state activism,
• Phenomenal increase in the area of state operation
• Has taken over number of functions, which were previously left to private enterprise,
• State today pervades every aspect of human life.
• Modern state to function as-
  • Protector,
  • provider,
  • entrepreneur,
  • economic controller and
  • Arbiter.

CONSTITUTION AND ADMINISTRATIVE LAW

Question:

• Whether there is any distinction between constitution law and administrative law.
• The subject of administrative law was dealt with and discussed in the books of constitutional law.
• No separate and independent treatment was given to it, as in many definitions of administrative law, it was included in constitution law.

Controversy:

Both are considered to be same as-

• Sources of both are same and
• Interrelated and complimentary to each other belonging to one and the same family.

Despite of no strict demarcation, still distinct from each other. According to Maitland,

‘While constitutional law deals of the functions are left to administrative law’.

Sayings-

• According to Hood Phillips, “Constitutional law is concerned is concerned with the organization and functions of government at rest whilst administrative law is concerned with that organization and those functions in motion”.
• Opinion of English and American authors is that the distinction between constitutional law and administration law is one of degree, convenience and custom rather than that of logic and principle, it is not essential and fundamental in character.
• Keith rightly remarked:“It is logically impossible to distinguish administrative law from constitutional law and all attempts to do so are artificial”.

 Indian Administrative Law-

In Indian, The Constitution is supreme with discretionary powers at the other side in England the parliament is supreme. Law enacted but the parliament is authoritative and fully admired. No person can challenge the validity of such law but only Ultra Vires statute can challenge under which it was taken.

Beside, Law enacted by the British parliament is the highest form of law and prevails over every other form of Law. In our India on the other hand by the written Constitution, power of Judicial Review is on Supreme Court and High Court, which can even be challenged as Ultra Vires.

Testimonies of the validity of such challenges are also defined as:

• The action must be taken in accordance with rules and regulations,
• Rules regulation and parent acts are also to be consonance to the constitution,.
• Rules must be in accordance, relevant with statute,
• If challenge converted and accepted in amendment, such amendment should be conformity with Basic structure.

So, the undertaking of Ultra Vires phenomenon is itself a signal of delegated powers among some accountable authorities for it’s assigned power, which are administrative agencies running under administrative law.

ADMINISTRATIVE LAW VERSUS CONSTITUTIONAL LAW

Administrative law-

• Influence – The constitution is the superlative law of the state of which all other laws of the land are subject to it.
• Establishment- Primarily, concerned with the exercise of powers by administrative bodies or executive actions.
• Working-Establishes the general rights including basic human rights and duties.
• Dependency-Derive the authoritative principles from the constitutional law like separation of powers, independence of the judiciary, nature justice and reasonableness of administrative actions.

Constitutional law-

• Influence –Administrative law, rules and regulations are subject to the constitution, where administrative law is inconsistent with the Constitution, the former will easily be declared unconstitutional.
• Establishment– Establishes the supreme power of the state, executive, judiciary and parliament and set general principles for the operations.
• Working-Set the mechanism and procedures on how the rights are to be administered both at the supreme level and by the delegated authorities.
• Dependency-Lays down the foundation for administrative law principles of natural justice.

Combined viewpoint-

Generally, both regulate the powers of the legislature, executive and the judiciary, the operation of the supreme powers of the state depends on the constitution, and administrative law draws the equilibrium on the exercise of powers. The laws complement each other, thus there is not an easy application of constitutional law without administrative law and vice-versa.

DROIT ADMINISTRATIF

Droit administrative is the French Administrative law which is considered widely popular and old. Through which many administrative provisions in other countries have been influenced from.

 Napoleon Bonaparte founded the “Droit Administratif” and formed the Conseil d’Etat.He also passed a law restricting the jurisdiction of courts on administrative subjects.

 Waline’s, three main features of the Droit Administratif are as follows-

• The power of administration to act suo moto and impose those powers directly on the subject duty to obey it’s discretion,
• The power of the administration to take decisions and to execute them suo moto may be exercised only within the ‘ambit of law’, which protects individual liberty against administrative arbitrariness and
• The existence of specialized administrative jurisdiction.

Dicey was critic of the Droit Administratif due to two reasons-

1. Firstly, because the government and every servant of it is a representative of the nation and holds some special rights, privileges that are not the same as every citizen of the country.( thus, unlike French law, an individual’s relation with the state is not on the same level as the interaction between two ordinary individuals)
2. Secondly, that the government should not be bound by restrictions by the ordinary courts and must be free of their jurisdiction. Therefore, Dicey sought that such a system is inapplicable to English Law.

Introduction:

This chapter simplifies many terms being used in this Act, special working, dealing severe situations, occupier’s working, occupier’s duties and manufacturer’s,etc duties, to bifurcate from occupier’s duties and so that there remains no confusion of occupier’s and others independent existence.

CHAPTER I – PRELIMINARY

Section 1- Short title, extent and commencement

This Act (Factory Act, 1948), which extends to the whole of India, came in force on 1st day of April, 1948.

Section 2- Interpretation

The interpretation remain the same until the subject or context of this Act remains consistent (similar or suitable),

(a)”Adult” – completed 15 years (15 yrs. – till death)

(b)”Adolescent” – completed 15, not yet 18 (15 yrs.- 18 yrs.)

(bb)”calendar year” – 12 month period, beginning with I day of January.

(c)”child” – not completed 15 yet (0 – 15 yrs.)

(ca) “competent person” –

A person or an institution, validated (acknowledged) by Chief Inspector for undertaking required-

• Tests,
• Examinations and
• Inspections

Such person must be experienced and qualified regarding-

• Facilities available to him or
• Persons working for him or
• Persons employed (working) for working in that institute.

(There could be more than 1 competent person or institution, depending upon the test, examination and inspections.)

(cb) “hazardous process”-

When industries (specified in schedule) undergo process or activity and fail to take special care of-

• Raw material( used initially or afterwards as an intermediate) or
• Finished product or
• Bye product or
• Wastes or effluents.

 Then, it could lead to-

• Material impairment to health of persons enjoyed in or connected therewith, or
• Pollution of the general environment.

(State Government, by notification in official Gazettee may amend I schedule through addition, omission or variation of industries mentioned under that schedule).

(d)”young person” – Either child or an adolescent (a person not yet completed 18 years)

(e)”day” – 24 hr period, beginning at midnight.

(f)”week” – 7 day period, beginning at-

Saturday night midnight or

Any other midnight (approved in writing for particular area by the Chief Inspector).

(g)”power” – electrical energy or any other form of energy, but-

Only mechanically transmitted,

Not generated by human or animal agency.

(h)”prime mover” – engine, motor or other appliance, generating or providing power.

(i)”transmission machinery” – any application or device like shaft, wheel drum, pulley, system of pulleys, coupling, clutch, driving belt,, which transmits motion from prime mover to the machinery or appliance.

(It is an intermediary of prime mover and machinery).

(j)”machinery”– Inculcates prime movers, transmission machinery and appliances all together, where power is-

Generated,

Transformed and

Transmitted or applied.

(Definition of “transmission machinery”, machinery may be a separate thing but according to the Act “machinery” includes prime movers, transmission machinery and other appliances itself).

(k)”manufacturing process” –

Any process for (here, the word ‘for’ is important, when mostly we take “manufacturing process” as process of manufacturing, which could be a very different perspective from process for manufacturing)-

• [making, altering, repairing], [ornamenting, finishing, packing], [oiling, washing, cleaning], [breaking up, demolishing], or treating an article; or substance for their use as, sale, transport, delivery, or disposal or
• (here, I have put brackets on relatable processes, would be easy to grasp)
• Pumping oil, water, sewage or transmitting or
• Power – generation, transforming or transmitting or
• Compositing – printing, printing by letterpress, lithography, photogravure, etc or book binding or
• Ships and vessels – construction, reconstruction, repairing, refitting, finshing or breaking up or
• Cold storage – preserving or storing.

CASES:

Uttarakhand forest Development Corporation and Another V Jabar Singh and Others

Supreme Court held that the process of cutting trees by axe and changing the shape by saw and conversion of trees into logs for the purpose of preserving any article such as milk in cold storage is a manufacturing process.

K.V.V. Sharma , Manager case

Conversation of raw films into a finished production was held to be a manufacturing process.

New Taj Mahal Café Ltd. Mangalore V Inspector factories Mangalore

The preparation of foodstuffs of other eatables in the kitchen of restaurant and use of a refrigerator for treating or adopting any article with a view to it’s sale were also held to be manufacturing process.

(l)” worker” –

A person employed (directly or by or through any agency or contractor, with or without knowledge of the principal employer, whether for remuneration or not) in-

• Any manufacturing process or
• Any kind of work incidental or connected with manufacturing process or subject of manufacturing process or
• Cleaning any part of machinery or premises used for manufacturing process.

Except – any member of the armed forces of the Union.

(m)”factory” –

Premises (including precincts) where-

• 10 or more workers work or were working on any day preceding 12 months and

    Where a manufacturing process is carried out with aid of power in any of factory’s part or

• 20 or more workers work or were working on any day of preceding 12 months and

   Where a manufacturing process is carried out without aid of power in any of factory’s part.

EXCEPT-

• Mine subject under the Mines Act, 1952(35 of 1952) or
• Mobile unit belonging to armed forces of the union or
• Railway running shed or
• Hotel, restaurant or eating place.

Explanation

• Calculation of number of workers in a day = different groups + relays.
• Not a factory- Premises or part of it, set up with on Electronic data Processing Unit or Computer Unit without any manufacturing process being carried out.

CASES-

Employees State Insurance Corporation V Jalandhar Gymkhana Club

Held, that preparation of food and drinks in kitchen attached to club and preservation and storing of articles in cold storage would be manufacturing process under sectiopn2(k) under Factory Act and t6herefore it follows that the premises of the club is a factory under section 2(m).

 V.P. Gopala Rao V Public Prosecutor, Andhra Pradesh

Sun-cured tobacco leaves was subject to processes of moistening, stripping and packing in a company premise with a view to their use and transport to company’s main factory for manufacturing cigarettes. More than 20 persons under supervision of management were working in the premises. It was held that the manufacturing process was carried on in the premises and the persons employeed were “workers’ and premises a “factory’ within the meaning under section 2(m) of Factory Act.

(n)”occupier” –

Who has ultimate control over the affairs of the factory, depending upon-

A firm or other association of individuals – any one of the individual partners or members thereof deemed to be.

A company – any 1 of the director.

Factory owned and controlled by the Central or any State Government or any local authority – the person appointed to manage the affairs of the factory by Central Government or State Government or Local Authority.

Examples:

• The owner of the dock or
• The owner of the ship or
• Owner’s agent or
• Master of ship or
• Officer-in-charge of ship or
• Any person who contracts with such owner, agent or master or other officer-in-charge to carry out the repair or maintenance work in relation to:
• The workers employed directly by him, or by or through any agency and
• The machinery, plant or premises in use for the purpose of carrying out such repair or maintenance work by such owner, agent, master or other Officer-in- charge or person.

Suitable provisions of this Act depending upon the above examples:

• Owner of dock- section 6, 7, 7A, 7B, 11, 12, 17(sufficient lighting), 18, 19, 42, 46, 47, 49.
• Others – section 13, 14, 16, 17, 43, 44, 45, 108, 109, 110, chapter – IV (except section 27),VI, VII, VIII, IX.  

(p) “prescribed” – means prescribed by the State Government under this Act.

(r) “shift” –where work of the same kind is carried out by 2 or more sets of workers working during different periods of the day, each of such sets is called a ‘group’ or ‘relay’ and each of such periods is called a “shift”.

SECTION 3- Reference to time and day

 Time of day refers to Indian Standard Time, five and a half hours ahead of Green Which Mean Time.

Where IST is not considered, State Government make rules, according to-

Area or local mean time ordinarily observed there and observed by all or any factory situated in the area.

SECTION 4- Power to declare different departments to be separate factories 2 or more factories to be single factory

• State Government, in concern of any provision can treat:
• Different departments or branches, separate factories or
• 2 or more factories, a single factory.

State Government, can do the above (but not without hearing occupier’s opinion), by:

• It’s own or
• On a written order (in form of application) by an occupier.

SECTION 5- Power to exempt during public emergency

In crises of public emergency, State Government exempt-

Any factory or class or description of factories (by notification in official gazette) from all or any provision of the Act considering that period (notification could not of more than 3 months at a time) and conditions accordingly.

Explanation:

“Public emergency”- Grave emergency, where security or any part of the territory is threatened through war or external aggression or internal disturbance.

SECTION 6- Approval, Licensing and Registration of Factories:

State Government may make rules-

• To submit plans of any class or description of factories to Chief Inspector or State Government,
• To have a written permission of plan (above) for site situation or construction or extension,
• For considering the purpose of plans and specifications,
• To specify nature of plans and specifications and who should certify it,
• Regarding factory’s licensing and registration and prescribing fees for registration, licensing and renewal of license,
• Clarifying no license or renewal to be granted unit section 7, notice is given.

If aforesaid application has been sent by post and there is no order communication within 3 months, it is implies to have been granted to the applicant.

If State Government or Chief Inspector refuses to grant permission applicant may appeal to Central Government within 30 days of refusal.

Explanation:

An extension or replacement of plant or machinery does not end up affecting the meaning of factory, if it does not reduce minimum clear space or adversely affect environmental condition through things injurious to health like steam, heat or dust or steam or fumes.

SECTION 7- Notice of Occupier

At least 15 days before, occupying or using a premises as a factory, occupier shall send a written notice to the Chief Inspector ,containing:

• Name and situation of factory,
• Name and address of occupier,
• Name and address of owner of premises (including precints), mentioned under section 93,
• Address, where communication to factory is to be sent,
• Nature of manufacturing process, to be carried on in the factory during-
• Last 12 months, where factory was in existence on the date of commencement of the Act and
• Next 12 months, in case of all factories.
• Total rated horse power installed or to be installed (not including rated hours power of any separate stand by plant),
• Name of manager
• Number of workers, likely to be employed,
• Average number of workers per day employed, last 12 months if factory is in existence on date of commencement of this Act,
• Any other such particular prescribed.

Establishment, for the first time coming within the scope of the Act, occupier shall send such notice to the Chief Inspector within 30 days from the date of commencement of this Act.

Factories which were earlier engaged in manufacturing process carried on for less than 180 working days in a year), to resume work occupier need to send such notice before the date of commencement of work.

When a new manger is appointed, occupier has to send such notice within 7 days from date on which such person takes over charge.

For purpose of this Act the time period when no person has been designated as manger or existing manager does not manager, another person or nom person is found acting as manager, the occupier himself shall be deemed to be the manager.

SECTION 7 A- General Duties of Occupier

To ensure health, safety and welfare of all workers, while they are at work.

Matter, not prejudiced as duty :

• Maintenance of plant and systems of work with safety and without risk to health,
• Arrangement for safety and absence of risk, using, handling, storage and transport of articles and substances,
• Relevant information, instruction, training and supervision for securing health and safety,
• Maintenance of all work places, through means of access to and securing health and safety,
• Maintenance of all work places, through means of access to and egress(go out of)  from places safe and risk free,
• Maintenance and monitoring of working environment.

Cases, except from prescribed above, occupier shall prepare often-

Revise, a written statement, in respect with safety and without risk, organization and arrangements for time being in force for carrying out that policy and to bring statement and revision to the notice of all workers, in prescribed manner.

SECTION 7 B- General Duties of Manufacturers, etc as regards Articles and substances any Article for use in Factories

Every person who designs, manufactures, imports or supplies any article for use in any factory shall-

• Ensure safety and non risk, regarding article designed and constructed,
• Carry out tests and examinations, considered necessary
• Take necessary steps, to ensure the availability information regarding:
  • Use of article in factory,
  • Use of the article for what it is been designed and tested and
  • Any necessary condition, to ensure safety and no risk when the article is used such way.

(When an article designed and manufactured outside India, importer is obliged to see-

• Article’s conformity, if the article has to be manufactured in India or
• Article’s conformity, if the advanced standards adopted by the foreign country are above the Indian standards).
• Every person, designing or manufacturing any article for use, must carry out or arrange  for carrying out  reasonably practical research or discovery, for  elimination or minimization of risk against health and safety of worker  which is under risk due to the design and article’s itself use.
• Above sub sections- (1), (2) of section 7 B never expressed, need to have   separate person, who may repeat the testing, examination or research, which is to be impliedly carried out by him only, by being reasonable and relying upon the results required for the asked purposes in those sections.
• Duties assigned to any person under sub-section (1), (2) of section 7 B, extend only to –
  • Things done in course of business carried out by him or
  • Matters within his control.
• Where a person designs, manufactures, imports or supplies articles, based upon a written undertaking by the user, to take specified step being mentioned in that undertaking, to ensure-
  • Safe and no risk working of the property when put to use, to the workers and
  • Relieving that person from his duties (reasonably considering the terms of undertaking), being imposed upon him under clause (a) of subsection (1) of section 7 B, if ensured safe is not provided with.
• In regard to this section’s purpose, no article is used properly until being informed or advised about it’s use, by the person, designing, manufacturing, importing or supplied.

MEANING

Human Rights are universal legal guarantees protecting individuals and groups against which interfere with fundamental freedom and human dignity. Human rights are generally defined as those rights which are inherent in our nature and without it , we cannot live as human beings. These rights and fundamental freedom allow us to develop and use our human qualities, intelligence, talent and conscience, and to satisfy our dignity of man is derived the right of every person to free development of his personality. It’s the essence of these rights that make man human.

At first instance it’s hard to come up with, rights we can include in human rights, it’s been classified below; according to-

• Source- natural, constitutional statutory rights.
• Recipient- individual and collective rights.
• Aspect of life- civil, political, economic, social, cultural rights.
• Struggle for recognition- first, second and third generation rights.

DEFINITIONS

“Rights are the external conditions necessary for the greatest possibility development of the capacity of the personality” –Ernest Barker

“We have a right to the means that are necessary to the development of our lives in the direction of the highest good of the community of which we are a part” –Bernard Bosanquet

“Rights are what we may expect from and others fro0m us, and all genuine rights are conditions of social welfare. Thus, the rights anyone may claim are partly those which are essential to every man in order to be rational human person, and partly those, which are necessary for the fulfillment of the function that society expects from him. They are conditioned by, and correlative to, his social responsibilities” –Leonard Hobhouse

Professor Wesley Hohfeld calls the four things which the term ‘a right’ covers:’ claims”, “privileges or liberty”, “powers” and “immunities”.

CONCEPT

The concept of human rights though is central to political science, it is poorly understood.

The term” human rights” is all comprehensive- it includes both civil- political (negative rights) and economic, social and cultural (positive rights) and collective or group rights.

Earlier, each group of nations has a different perception of human rights. The new concept of human rights giving equal treatment, if not equal importance, to both set of rights (civil- political and economic- social) became a characteristic feature of many constitutions that came into existence after the Second World War.

Generation wise-

First generation human rights deal with liberty and practicability in political life. They are fundamental civil and political in nature, and serve to protect the individual from excess of state. It primarily includes those rights defined in International Covenant on Civil and Political Rights (ICCPR), like freedom of speech, right of fair trial, freedom of religion and voting rights.

Second generation human rights cover economic, social and cultural rights, which primarily find their origin in the socialist tradition and have been variously promoted by revolutionary struggles and welfare movements, also known as social welfare rights. Example: right to development, right to live under decent living conditions, right to workers to self-organize.

Third generation human rights covers collective rights, best understood as a product of both the rise and decline of the nation states in the last half o0f the 20^th century .Example: right of people to a healthy environment.

EVOLUTION

Ancient times:

The concept of Human Rights as it is today was unknown to ancient societies. Although certain rights were available to citizens of various ancient societies but they were subject to coercion by the state especially for the purpose of maintaining peace and order in society, state security and protection of life and property. What existed was a political duty imposed the rule,, in the most case by divine law, to protect the citizen and the freedom available was as granted by the rulers.

“Judaism knows not rights but duties, and at bottom, all duties are to God”.- Ancient Hebrews

Magna Carta:

The earliest legal instrument of protection of individual rights against state encroachment was the English Magna Carta signed by King John in 1215. It has been described as a charter not of “popular liberty” but of “feudal reaction” clamoring for restoration of feudal privileges and jurisdiction which is unfriendly to the crown and to the growth of popular liberty. It made the king and his subjects subordinate to the law such that the king could not deal with the subject expect according to the law.

French Declaration:

The French declaration of the rights of man and the citizen 1789 proclaimed a universal principle of rights applicable to all people in large. It highlighted that sovereignty rests on the nation and all authority to exercise it must be derived from the people. Rights covered were to come up with equality of all men, through-

• The pre-eminence of the rights to liberty, property, security and resistance to oppression,
• Equality of citizen and their admission to public post and employment on the basis of merit,
• Freedom of thought and opinion.

Post First World War:

The progressive internalization of human rights was initiated at the First World War peace settlement. Peace treaties were put in place for-

• Protection of the religions and languages of minorities,
• Minimum standers for labor under the supervision of the international labor organization,
• System that ensures accountability,
• Public welfare as a trust to civilization.

Post Second World War:

It was the atrocities by the Nazi regime in the years and during World War II that revolted the conscience of mankind and forced the people of the world to take a hard look at the concept of domestic jurisdiction of Human Rights. This led to the consecration of human rights into the UN Charter, in general terms and later in elaborate terms in the Universal Declaration of Human Rights (UDHR).

Crux (step by step eventual adoption of Human Rights):

Discrimination-

 Objectionable, as disregards fundamental notions of human dignity and equality before the law, towards those who lack knowledge about rights and perceived to be weak in capacity to fight for their rights.Ex.:

• Racial discrimination (Apartheid, cultural minorities, etc)
• Sex discrimination (Violence against Women, Political Rights of Women, trafficking of women and prostitution, etc)
• Religious Discrimination

NGO’s as Ombudsmen–

• NGO’s function as Ombudsmen, safe-guard human rights and calling the attention of the government on violations through periodic reports, public statements participation in the deliberations established by intergovernmental organizations.
• NGO’s stimulate public opinion and initiations and initiation on the foundation of foreign policy of countries on matters concerning the violation of human rights.

UN objective-

Enforce equal human rights; “to reaffirm faith in fundamental human rights and the dignity and worth of human person”(UN Charter Preamble); for the recognition and respect of human rights and freedom.

Human Rights Education-

• System used for training, dissemination and information efforts aimed at building of universal culture of human rights.
• Imparting of knowledge and skills on the molding of attitude, which direct towards the strengthening the people’s respect for human rights.
• Provides the understanding, tolerance, gender equality and friendship among all nations including indigenous people and racial, national ethnic, religious and linguistic groups.
• Enables a person to participate effectively in a FREE society.

CONCLUSION–

After undergoing number of theories, related to natural law, positivism, justice, equality and dignity of man and famous documents like Magna Carta (1215), Universal Declaration of Human Rights (1948), International Covenant on Civil and Political Rights (1966), International Covenant on Social, Culture and Economic Rights (1966), we seem to have all the possible power as an individual to stand for ourselves against any kind of injustice.

(But are we free enough to exercise our rights in ongoing scenario of our country or we just possess them materialistically?)

INTRODUCTION

Subject, herein being the “Transfer of Property”, so the act revolves around every possible transfer of immovable property between two living persons (doctrine of Inter vivos). Where it was enforced on 01-07-1882, it got enacted on 02-17-1882.This legislature is headed by the “Department of Legislative” under the “Ministry of Law and Justice”. It consists of 137 sections in 8 chapters.

“Life, liberty and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty and property existed beforehand that caused men to make laws in the first place.”

–Frederic Bastiat

PREAMBLE

Whereas it is expedient to define and amend certain parts of law relating to the transfer of property by act of parties.

(Certifying, this legislature to be a convenient means to explain and change the portions of statute dealing with transfer of property between two living parties).

SCENARIO OF TRANSFER

• Transfer could be done by two means- Through parties act or through Laws operation.
• Then, transfer through parties act could be done by two means- Through Inter vivos or through testamentary (will, taking effect after death).
• When Inter vivos is done with immovable property, it could be any among-sale, mortgage, charge, lease, exchange, gift or actionable claims.

TRANSFER

The term “Transfer” is defined in reference to the word “convey’ means a process or an act by which something is handed over to another.

This word in English law is narrower and in more usual sense refers to transfer of an estate in land, but it is sometimes used in much wider sense to include any form of an assurance Inter vivos.

The word “convey” in section 5 of The Transfer of Property Act, 1882 is used in the wider sense as referred to above.

CATEGORISED TRANSFERS

The Sale of Goods Act, 1930– Movable property is transferred inter vivos.

The Transfer of Property Act, 1882– Immovable property is transferred inter vivos. 

Law of succession– Property is transferred from dead person to living person, followed by categories where person dies leaving will or without will, there testamentary succession and intestate succession will be applicable respectively.

PROPERTY

This legislature deals only with transfer of Immovable property. Difference between movable and immovable property:

MOVABLE PROPERTY:

• Movement- It can be easily transported from one place to another without changing it’s shape, capacity, quality or quantity.
• Transfer- Mere delivery with intention to transfer the movable property completes the transfer.
• Registration- It’s registration is optional under The Registration Act, 1908.
• Illustration- Mongo tree, if cut and sold for timber purpose.

IMMOVABLE PROPERTY

• Movement- It cannot be easily transported from one place to another, if transported it will lose it’s original shape, capacity, quantity or quality.
• Transfer-Mere delivery is not sufficient for a transfer to be valid, the property must be registered in the name of the transferee.
• Registration- It requires compulsory registration under The Indian Registration Act, 1908, subject to condition that it’s value if exceeds rupees100.
• Illustration- Mango tree if sold for fruits and nourishment.

ESSENTIALS

Transfer-

Here transfer may be a gift, sale, mortgage, pledge, charge, lease, actionable claims.

Legal rules for valid transfer-

• Property must be transferable.
• Transferor and transferee must be competent.
• Consideration and object of transfer must be lawful.
• Transfer must take place as per method prescribed under law.

Meaning (section 5)-

Transfer of property means an act by which a living person, convey property in present or in future to one or more other living person or to himself and one or more other living person: and to transfer property is to perform such act.

“Living person” includes a company or associate or body of individuals whether incorporated or not.

Subject matter of transfer (section 6)-

Every kind of property can be transferred except the following:

• Chance of an heir apparent.
• Right of re-entry.
• Transfer of easement.
• Restricted interest.
• Right to future maintenance.
• Right to sue.
• Transfer of public office, salary and pension.

Who may transfer property (section 7)-

• Every person, competent to contract and having ownership can transfer property.
• A minor can be transferee but a minor is not competent to be a transferor.
• Persons who are authorized to transfer property can also transfer property validly.

Formalities for transfer (section 54)-

Movable property:

• Oral (by delivery of possession)
• Writing (by executive agreement)

Immovable property:

• Tangible –Registration mandatory(property value of rupees 100 or above)

                             Registration optional (property value of less than rupees 100)

• Intangible-Registration compulsory.

SYNOPSIS

Chapter I- Preliminary (section1- 4)

 This chapter is a brief prelude to this legislature, involving title, some important elucidations and specifying this legislature’s dependency of other (Contract  Act) and this legislature’s capability to upgrade other(Registration Act).

Chapter II- Transfer of property by act of parties (section 5- 53A)

It talks about-

• some definitions,
• what may be transferred and by whom,
• types of interests involved,
• different transfers made to and by people or situations,
• rights and obligations arose from such transfers and
• some crucial concepts like Rule of perpetuity and doctrine of election.

Chapter III-Sale (section 54- 57)

Chapter IV- Mortgage and Charge (section58- 104)

Chapter V- Lease (section105- 117)

Chapter VI- Exchange (section118- 121)

Chapter VII- Gift (section122- 129)

Chapter VIII- Actionable Claim (section130- 137)

(NOTE: Content of unexplained synopsis will be given in the introduction of my chapter wise upcoming blogs)

MEANING

While understanding meaning of “Administrative Law”, administrator’s task is to take government policy and implement them to the grand level. Legal connotation of the term “Administrative”, is “implementation” element is often more prominent than “management element”. For the lawyer, “Administrative matter” is often one which lies at the other end of a spectrum from “policy matter”.

 As per Australian jurisprudence, the key statute entitle individuals to judicial review of administrative Act in that jurisdiction is limited to decisions which possess “an administrative character”. The court has avoided any precise definition of the term but has supplied with some general indicators:

“Administrative carries with it the notion of ‘managing’, ‘executing’, ‘carrying’ into effect…laws”.

“Administration includes the application of a general policy or rules to particular cases, the making of individual decisions”.

DEFINITIONS

• According to Sir Ivory Jennings, in his book-“the law and the constitution” wrote Administrative Law as “the law relating to administration”, believing that it determines the organization, powers and duties of administrative authorities.
• According to Massey, Jennings definition had lots of flaws and while criticizing mentioned that-
  • Ivor, neglected separation of administrative and constitutional law.
  • Ivor, emphasized more about association, power and obligation to prohibit the way of their activity.
  • Ivor, didn’t gave importance to the procedure like organization basic leadership including standards, strategies and principles.

Though Massey defines it as-“Administrative Law as that branch of public law which deals with the organization and powers of administrative and quasi administrative agencies and prescribes the principles and rules by which official action is reached and reviewed in relation to individual liberty and freedom”.

• Accordingly Dicey, like Jennings did not recognized the independence existence of Administrative Law. So Dicey formulated Administrative as-
  • Administrative Law relates to that portion of nation’s legal systems which determines the legal status and liabilities of all state officials.
  • Defines rights and liabilities of private individuals in their dealings with public officials.
  • Specifies the procedures by which those rights and liabilities are enforced.
• According to Austin, it is the law” which determines the end s and made to which the sovereign power shall be exercise”. In this view, the sovereign power shall be exercised either directly by the monarch or indirectly by the subordinate political superiors to whom portions of those powers are delegated or committed in trust.
• The Indian Institution of Law has defined Administrative Law-“Administrative Law deals with the structure, powers and functions of organs of administration, the method and procedures followed by them in exercising their powers and functions, the method by which they are controlled and the remedies which are available to a person against them when his rights are infringed by their operation”

(Despite of there being diverse definitions and notions, still there remain some key aspects that stand common while interpreting them-

• It is a manner concerned of exercising governmental powers.
• They are focused on the basis of functions or substantial purpose for which it exists.
• It is a course specifically concerned about the practical application of law.)

HISTORY

The origin of the word lies in the 18^th century, coined from the Latin verb administrate, meaning to manage. There is no doubt of the centrality of judicial review to the practice of administrative law, but not forgetting the words of Harlow and Rawlings-

“Behind every theory of law there lies a theory of state”.

The oldest use Administrative procedure was referred to as “inquest” or “inquisitions”; which in Roman simply means, investigation.

In the Magna Carta, the first charter that talks about rule of law, procedures and balance of powers during monarchial rule of the king, there exists a clause that stated “Writ of Inquisition of Life or Limb” and that it “must be granted freely and not denied”.

NATURE

Categorised as:

1. Basic propositions(Idea/opinion)
2. General features(Specific in existence but not in sayings)
3. Specific nature(Specific in sayings of jurists)

Basic propositions:

• Power is conferred by law (working has to be recognized and approved by law).
• No authority can exceed administrative law’s power (Nature can’t be touched, it’s an inbuilt property).
• No power is absolute and uncontrolled (As nature reaches scope, nature becomes specific yet diverse).

General features:

• Branch of public law.
• Deals with relationship of individuals
• Uncodified law.
• Judge made law which evolves overtime.
• Determine organizations and power structure of administrative and quasi-judicial authorities to enforce the law.
• Specifically concerned with official actions and procedures.
• Controls mechanism by which administrative agencies stay within bounds.

Specific Nature:

In the view of Friedman, administrative law includes-

• The legislative powers of the administration both at common law and under a vast mass of statutes.
• The administrative powers of the administration.
• Judicial and quasi-judicial powers of the administration, all of them statutory.
• The legal liability of public authorities.
• The powers of the ordinary courts to supervise the administrative authorities.

SCOPE

Scope of Administrative Law goes hand in hand, right from the authorities (bodies/agencies) followed by their personal proceedings. So the scope inculcates:

Firstly, the diverge bodies which take authority to be accountable for outpacing this law (by authorities, which displays the official power of administrative law through- permits, orders, ministerial and administrative actions, and legitimacy of procedures)

Secondly, the various procedures undertaken by the above mentioned authorities(by proceedings, through principle of reasonableness, natural justice and at international spheres by signing Universal Declaration of Human Righta,1948, International Covenant on Civil and Political Rights, 1966, African Charter on Human and Peoples Rights, 1986 recognize fair hearing and just administrative procedures).

By authorities:

• Administrative bodies- There exists various administrative bodies like-Central Board of Revenue, Commission of Inquiry and Advisory board, Tariff commission.
• Administrative tribunals- Administrative agencies undergo judicial functions through Administrative Tribunals like- Industrial tribunal, Income Tax Appellate Tribunal, etc.
• Public Corporations- The Union and State Government  accounts themselves liable against the working of their servants or agents, working in public corporations.

By proceedings:

• Delegated legislation- rule making power of the authorities.
• Available Remedies- such as Writs, Injunctions, etc.
• Procedural guarantees- through applicability of Principle of Natural Justice.

INTRODUCTION

One of the major Central Act. The title of the Act may not outlash about it’s working but the soul of the act is all about consolidating provisions regulating labor in factories. Where it’s been enacted on 23-09-1948, it came into information on 01-04-1949. This legislature inculcates the provisions on proper working conditions, safety, health and welfare of workers, working hours, holidays (even paid),overtime, employment of children, women and young person. In nutshell it is concerned about anything and everything possible to affect all sizes and shapes of workers. This legislature is headed by “Ministry of Labor and Employment”. It consists of 120 sections and 3 schedules.

HISTORY

Origin

The existence of law relating to factories in India trace it’s origin back from factories legislation of United Kingdom. Like, the application and industrial jurisprudence of UK legislation provided skeleton in order to shape the factories legislation in India.

In India

The rapid growth of industrial town and factories has paved the way to develop our industrial legislation accordingly. Government of India never came on front foot to have a separate legislation vis-à-vis(in regard to which), post independent only those factories came under the obligation(enforcement) of this statute which were enacted pre-independence. Post-independence, Article 372 of The Constitution of India, 1950 and DPSP’s scope of demand of society, flourished the implementation of this statute to other factories as well. In 70 year history of Indian republic, there are unprecedented developments of law relating to factories in India.

Progress

• A memorable legislature, The Elizabethan Poor Law, 1610 followed by 17^th and 18th century instructed destitute and orphan children to have weaving and spinning as their favorite   hobby and subsequently they should apprentice to some trade.
• Later, the Factory Act, 1802 came as an extension of the old Poor Law as the conscious assumption of control over industry.
• By the time, according to Indian statics:
  • Bengal, credited with first cotton mill in 1818.
  • First jute mill started in 1855.
  • First power loom was introduced in 1859.
  • Bombay, first spinning and weaving mill was established in 1951.

(The time of early expansion in India was the time in UK when they were considering to have factory legislation).

• In UK, in accordance with the last Act dealing with this matter was that of 1847, it’s review considered 10.5 hours of monotonous, unceasing labor, even under favorable conditions, as too long to be consistent with the health of young persons (between 13 and 18 years) and women generally.
• In 1874, under the conservative Government which came into power in that year was passed the Act thus entitled ‘An Act to Make Better Provision for Improving the Health of Women, Young Persons and Children Employed in Manufactures and the Education of Such Children and Otherwise to Improve The Factory Acts’.
• In 1875, in consequences of the realization of inequality and unnecessary complexity existed in the body of the Factory Laws, a committees was appointed to in inquire into the conditions of factory work in the country.
• During Lord Ripon’s time, first factories Act was adopted in India in 1881, primarily focused on children; that-
  • No child should be employed in factory if under the age of 7 years.
  • No person under the age of 12 years, should be actually employed in any factory more than 9 hours in any one day.
  • Every child was to have 4 whole holidays in the month.
  • Children were not to be employed in certain dangerous work.
• In India, various Committees were appointed from time to time by the Government of India to inquire into the problems of health of industrial workers. In 1943, Government of India appointed Health Survey and Development Committee under the Chairmanship of Shri. D.D.Rege (as even called Rege Committee) to consider and suggest broad objectives of health and medical care in the country, the Committee report held employer responsible to provide for medical and health facilities. This is how onus of employee’s health was put upon an employer.

 (With high speed growth of various industries in India, regulation became necessary and hence, accordingly fashioned the factories legislation of United Kingdom with suitable modification by 1948).

• Since then it’s been amended in years 1949, 1950, 1951, 1954, 1970, 1976 and 1987.
• Going by the current situation, The Union Cabinet and The Lok Sabha have passed the amendment to section 64, 65 and noteworthy section 115 of The Factories Act, 1948 through Factories (Amendment) Bill, 2016. This Bill is currently pending before The Rajya Sabha.

OBJECTIVE

• Ensure adequate safety measures, to protect workers employed, against industrial and occupational hazards.
• Promote health and welfare of workers employed.
• Prevent haphazard growth of factories, through provision related to approval of plans before creation of factory.

(Objective leads to obligations upon owner or occupier and even guardians, through penal provision of this legislature, which automatically pushes them to protect workers and secure for them employment in conditions conductive for their health and safety).

SALIENT FEATURES

• Major legislation:

 Factories have capacity to regulate almost everything either it is environment, mankind, wildlife, economy and even our lifestyle.

Where factories were comparatively affordable, accessible, source of vast employment, upgraded lifestyles, initialized high rated professions; on the same time they have been a source of bizarre disaster to environment as well as mankind(through poor working conditions).

Eventually, every resource to a factory was exploited to it’s fullest.

Where to save the environment, sustainable development and go green concepts were brought up, to save human resource initially labor unions came on front foot followed by such legislation. Situations highlighted for granted approach of producers towards their human resource, lead to have a permanent solution through this legislature.

• Statutory applicability: Mentioned under section 2(m)-definition of “Factory”.
• Amplified humanitarian approach: Chapter- lll, lV, lVA, V, Vlll .
• Uplifts all shapes and sizes of worker: In general, special women oriented provisions and provisions based upon specific number of accumulated workers. Specifically, Chapter- Vl, Vll.
• Grate management: Either through occupier’ duty, Chapter- ll(Inspector’s duty), or through powers allotted to state government at each step to work according to requirement. It resulted in flexibility, which on bigger picture came up as vulnerability.
• Penal provisions: Chapter- X.
• No ambiguity: Alike other legislatures, where lots of things are left untold, this Act includes everything so sincerely. From section 2(definitions), to the schedules(mentioning everything so precisely), covering each area and leaving no loopholes.

SYNOPSIS

Chapter l – Preliminary (section 1- 7)

It specifies, this legislation’s territorial and statutory applicability, relevant definitions, concept of “time of day” to determine working hours, pre-requirements to initiate a factory, duties of occupiers and manufacturers and other provisions in which a person should know in general sense to whom this Act is relevant to.

Chapter ll – The Inspecting Staff (section 8- 10)

 It mentions that an inspecting staff consists of an inspector and surgeon. Along with this, the qualification of inspector and duties of surgeon are even mentioned.

Chapter lll – Health (section 11- 20)

This chapter talks about all the general health related provisions, with which workers must have been impliedly provided but even then not provided with. Provisions related to cleanliness, waste disposal, fresh air, lighting, drinking water, washrooms and ect.

Chapter lV- Safety (section 21- 41)

This chapter specifically points out safety provisions, relayed to worker’s health alike general provisions mentioned in Ch- lll. Provisions related to:

• Fencing and lifting of machinery,
• Revolving and self-acting machinery,
• Lift, hoists, floors, stairs and other means of access for workers.
• Protection from pits and openings in floors.
• Protection of eyes.
• Precautions against dangerous fumes, dust, gas, electricity, fire.
• Protection from defective parts.
• Maintenance of buildings and machinery.
• Employment of safety officers.

Chapter lVA- Provisions related to hazardous processes (section 41A- 41H)

Provisions related to:

• Appointment of Site Appraisal Committee, Inquiry Committee, Safety management.
• Occupier’s responsibility to disclose information, follow emergency standards, take permission to use toxic chemicals (mentioned in schedule 2).
• At last, even after taking all security measures, workers still have the right to be warned about imminent danger prevailing in the factory.

Chapter V – Welfare (section 42- 50)

This chapter talks about the wellbeing of the workers like washing as cleanliness perspective, maintenance of clothes, sitting facility, first aid , availability of canteen, shelter, rest room, lunch room, crèche, necessity of welfare officer, state government gets power to make rules supplement to the existing.

Chapter Vl –Working hours of adults (section 51- 66)

• This chapter defines every time period coming under the umbrella of working hours, like weekly hours, daily hours, night shifts, spread over.
• It even highlighted adults over here, due to which all precautionary steps have been provided accordingly like holidays either weekly or compensatory, no women worker, extra wages for over time, no overlapping of shifts, no double employment, proper registration and at last sate gets power to make some exempting rules.

Chapter Vll-Employment of young persons (section 67- 76)

• This chapter being concerned about young persons, so entertain children (not completed 14 years) and adolescents, means all workers except adults.
• It talks about the wellbeing of a young person through maintaining certificate of fitness, managing working hours, registration of working hours, proper medical examination and at last state government power to make rules.

Chapter Vlll- Annual leave with wages (section 78- 84)

This chapter mentions paid wages along with such payment in advance or recovery of such payment afterwards. Power of state to make rules and exempt factories for this provision.

Chapter IX- Special provisions (sections 85- 91A)

Here, this special character even involves the miscellaneous trait as it mentions state power to declare a premise- FACTORY, exempt public institutions from manufacturing process, option over carrying on factory with dangerous operations. Notification of certain diseases, accidents, dangerous occurrences, even provision related to enquires for such accidents or diseases by taking samples.

Chapter X- Penalties and Procedures (Section92- 106A)

• This chapter penalize workers, inspector, occupier and even parent or guardian (ultimate beneficiary) of child who commits the specified unlawful act.
• Procedure includes courts powers to make rules, make onus of age or practicability of act and jurisdiction of court to entertain proceedings.

Chapter XI- Supplemental (Section 107- 120)

As the name suggests, this chapter adds on valuable quality to this legislature through mentioning provision related to appeals, notices, rights and obligations of workers, restriction on disclosing information, repeals and savings, etc.

Schedule I– List of industries involved in Hazardous processes.

Schedule II– Permissible level of chemical substances in work environment.

Schedule III– List of Notifiable diseases.    

(NOTE: Description of required chapters in salient features could be taken from synopsis or from my upcoming, chapter wise detailed blogs)