Introduction to Public Law

D R . A B H I J I T VA S MAT K A R
A S S I S TA N T P R O F E S S O R,
SLS, PUNE
Introduction to Public Law
In conventional sense, ‘the law of relations between individuals and the state’.

Public law is the part of law that governs relations and affairs between legal persons and a government, between

different institutions within a state, between different branches of governments, as well as relationships between

persons that are of direct concern to society.

Public law comprises constitutional law, administrative law, tax law and criminal law, as well as all

procedural law.

Oxford – ‘The part of the law that deals with the constitution and functions of the organs of central and local

government, the relationship between individuals and the state, and relationships between individuals that are of

direct concern to the state.

According to Loughlin, ‘Public law is a form of political jurisprudence that incorporates no transcendental or
metaphysical ideas of justice and goodness; it is concerned solely with those precepts of conduct that have
evolved through political practice to ensure the maintenance of the public realm as an autonomous entity.’

As per Holland, Public Law provides for the manner of activities or the various organs of the Sovereign Power
as provided by the Constitution. In this sense Public has been defined as ‘the exercise of political powers
within the limits of the Constitution as the total concrete and manifoldly changing activity of the State in
particular cases as the functions, or the activity, of the Sovereign Power’.
It may include the making and promulgation of laws; the action of the government in guiding the
State in its foreign relations; the administration of justice; the management of the property and
business transactions of the State; and the working in detail, by means of subordinates entrusted with
a certain amount of discretion, of the complex machinery by which the State provides at once for its
own existence and for the general welfare.
 Common Law System
The laws governing a case are based on both legal precedent created by judges, and statutory laws, created by
legislatures.
Follows the principle of Stare Decisis
Usually an adversarial system of Litigation, where the judge acts as an impartial referee between opposing parties to
a case.
A judge will decide the law to be applied;
Initiation of a criminal case by the state
There is an active role for prosecutors and defense attorneys;
Judges do not investigate
There is an active role for prosecutors and defense attorneys
Burden of Proof ( Onus Probandi) on the Prosecutor
Witness and evidence by the parties
Victims have a role as witnesses– however, victims are not a party in criminal cases
Judges can create legal principles and have review power
Australia, England, New Zealand, Canada, and the USA are common law systems.
Civil Law System
Romano-Germanic System
Civil Law ‐ Continental European Law ‐ are c odifications within a constitution or an
amendable statute passed by legislature.
Civil Law mainly derived from the Roman Empire and extensive reform in (529AD), resulting in the codified
documents Corpus Juris Civilis.
Civil Law was also partly influenced by religious laws such as Canon and Islamic Law.
Only legislative enactments are considered legally binding.
Civil Law can be subdivided into distinct groups:
◦ French Civil Law: France, the Benelux countries, Italy, Spain, and their former colonies;
◦ German Civil Law: Germany, Austria, Croatia, Switzerland, Greece, Portugal, Turkey, South Korea and the
Republic of China;
◦ Scandinavian Civil Law: Denmark, Norway, Sweden, Finland and Iceland;
Usually an inquisitorial system, where an investigating judge is actively involved in investigating the facts of a
case;
◦ Prosecutors and defense attorneys may play a more limited role;
◦ Victims may be parties and have rights regarding their involvement, which may include having their own
attorneys and filing the initial charges- action civile and the action publique.
◦ In many civil law systems, victims may bring civil claims, e.g., for monetary damages, in the context of a
criminal prosecution.
Most of the law is statutory law created by legislatures and not by judges following precedent.
Many European countries, including France and Germany, and a number of North, Central and South American
countries, like Mexico and Brazil, are examples of civil law systems.
Skills Required to Practise Public Law
Understanding of Power Structure and the model of governance – Substantive Ultra
vires.
Knowledge about the procedures exercised (eg. Notice to government)– Procedural
Ultra Vires.
Assess the extent of Freedom Guaranteed to people.
Research and Interpretative Skills.
Creative Problem Solving.
Critical thinking and Analytical Skills.
Interpersonal Skills and Empathy.
Drafting Petitions, Appeals, Review, Revision, affidavits, etc.
Initiative and Persuasion.
Team work- coordination.
Command Over Processes:
• Explicative Process: It tries to ascertain the nature, scope, and sources of a
particular concept in order to explain what it is.
• Identificatory Process: It is used to ascertain or identify a class for whose benefit a
rule-based system has been enacted.
• Collative Process: Its objective is to compare two sets of rules to find out
which one is more workable and by which means the desired effect may be
achieved.
◦ Projective Process: It aims at examining the degree of acceptance of a policy
under a model of governance.
 Constitutional Perspective
298. Power to carry on trade, etc.—The executive power of the Union and of each State shall
extend to the carrying on of any trade or business and to the acquisition, holding and disposal
of property and the making of contracts for any purpose.
299. Contracts.—(1) All contracts made in the exercise of the executive power of the Union or
of a State shall be expressed to be made by the President, or by the Governor of the State, as
the case may be, and all such contracts and all assurances of property made in the exercise of
that power shall be executed on behalf of the President or the Governor by such persons and
in such manner as he may direct or authorise.
(2) Neither the President nor the Governor shall be personally liable in respect of any contract
or assurance made or executed for the purposes of this Constitution, or for the purposes of
any enactment relating to the Government of India heretofore in force, nor shall any person
making or executing any such contract or assurance on behalf of any of them be personally
liable in respect thereof.
300. Suits and proceedings.—(1) The Government of India may sue or be sued by the name of
the Union of India and the Government of a State may sue or be sued by the name of the State
and may, subject to any provisions which may be made by Act of Parliament or of the
Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be
sued in relation to their respective affairs in the like cases as the Dominion of India and the
corresponding Provinces or the corresponding Indian States might have sued or been sued if
this Constitution had not been enacted.
(2) If at the commencement of this Constitution—
(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of
India shall be deemed to be substituted for the Dominion in those proceedings; and
(b) any legal proceedings are pending to which a Province or an Indian State is a party, the
corresponding State shall be deemed to be substituted for the Province or the Indian State in
those proceedings.
Rule of Notice to the Government – Section 80
of CPC
In India, a person can sue the government and its officials on infringement of his
right (Both fundament rights and other legal rights).
Generally, for suing a person, there is no need of giving a notice prior to suit. But
According to section 80 of Civil Procedure Code (CPC), 1908, it is mandatory to give
a notice before filling a case against government or public officer to claim relief
from mishaps caused by the government or public officer in its official capacity.
Condition: Only after the expiration of two months of sending notice to the
government or public official, one can sue it.
Thus, this section is an attempt by the law makers to settle the matters in amicable
and timely manner.
SECTION 80 OF CIVIL PROCEDURE CODE
(CPC), 1908
The serving of notice under Section 80 of the CPC before suing the government
or public officer is mandatory and describes two types of cases:
(i) Suit against the government and
(ii) Suit against public officers in respect of acts done or purporting to be done
by such public officers in their official capacity.
This section is explicit and mandatory and admits of one exceptions.
The language of this section is imperative and absolutely debars a court from
entertaining a suit instituted without compliance with its provisions.
If the provisions of the section are not complied with, the plaint must be
rejected under O. 7, R. 11(d) of CPC. So the notice under Section 80(1) of CPC,
1908 is the first step in the ligation against government or public officer.
 Section 80(1) of CPC, 1908
Section 80(1) of CPC, 1908 provides -
a.) In the case of a suit against the Central Government the notice should be delivered to, or left at the office
of secretary to that government except in the case against railways.
b.) In the case of a suit against the Central Government where it relates to railways, the notice must be delivered
to, or left at the office General Manager of that railways:
c.) in the case of Jammu and Kashmir, to the office of the chief secretary to that government or any other
officer authorized by that government in this behalf.
d.) If the suit is against any other government, to the office of a secretary to that government or the collector
of the district.
In the case of public officer, delivery to him at his office, stating the cause of action, the name, description, and
place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such
notice has been so delivered or left.
Section 80(2) And 80(3) of CPC, 1908

Section 80(2) of CPC, 1908 provides exception to the sub-section (1), It exempt the court to entertain a suit
dealing with urgent or immediate relief against the government on reasonable opportunity of show cause that
the matter needs immediate attention. If on hearing the court is unsatisfied with the ground that urgent or
immediate relief need be granted in the suit, it should return the plaint for the later presentation after satisfying
the compliance needed in sub-section (1).
Section 80(3) of CPC, 1908 deals with the basic requirement of notice. If those requirements are satisfied, then
the suit cannot be set aside merely on the ground of any error or defect in the notice.
Those basic requirements of notice are:
a.)The name, description, and the residence of the plaintiff in such vivid way that it clearly allows to
identify the person serving the notice.
b.) Such notice had been delivered or left at the office of the appropriate authority specified in subsection (1)
c.)The cause of action and the relief claimed by the plaintiff had been substantially indicated
Object of Notice and Legislative Intent Behind
Serving Notice
The underlying motive and object behind adding section 80 in CPC is:
a.) In case of reasonable and just reason for filling suit, a prior notice will provide an
opportunity to the government or public officer to correct or accept the demand
put forward by the plaintiff. It leads to speedy settlement of the grievances.
b.) In case of reasonable complaint government or public officer will get enough
time of two months to settle it down or to negotiate on the issue. Which might take
years if it will decide in court.
c.) By giving a chance to negotiate and settle down the dispute this section is
inserted for saving the money and time of plaintiff. It will help in avoiding money
wastage in long process of litigation.
Contents or Requisites of notice u/s. 80 CPC

The essential contents or requisites of a notice u/s. 80 CPC are as under---

(1) whether the name, description and residence of the plaintiff are given so as to enable the
authorities to identify the person serving the notice;
(2) whether the cause of action and the relief which the plaintiff claims are set out with sufficient
particularity;
(3) whether a notice in writing has been delivered to or left at the office of the appropriate authority
mentioned in the section; and
(4) whether the suit is instituted after the expiration of two months next after notice has been
served, and the plaint contains a statement that such a notice has been so delivered or left. In
construing the notice the Court cannot ignore the object of the legislature, viz. to give to the
Government or the public servant concerned an opportunity to reconsider its or his legal position. If
on a reasonable reading of the notice the plaintiff is shown to have given the information which the
statute requires him to give, any incidental defects or irregularities should be ignored.
Judicial Response
Sec. 80 CPC is mandatory- Provisions u/s. 80 CPC are mandatory and failure to serve two months prior notice will
entail the dismissal of the suit. (B.R. Sinha vs. State of M.P., AIR 1969 SC 1256 )
Urgency of the matter to be relevant consideration for grant of leave u/s. 80 CPC- Court is competent to consider
whether or not there is in existence the urgency or likelihood of immediate relief being granted to the plaintiff. If
the court is of the opinion that there is no such urgency existing or immediate relief cannot be granted, the
court may refuse leave u/s. 80(2) of the CPC.(Islamia Junior High School vs. State of U.P., AIR 1986 All 92)
Errors or defects in notice u/s. 80 CPC- when not fatal?- Every venial error or defect in notice u/s. 80 CPC is not
fatal and such venial error or defects cannot be permitted to defeat a just claim if on a reasonable reading but
not so as to make undue assumptions, the plaintiff is shown to have given the information which the statute
requires him to give, any incidental defects or errors may be ignored. (The State of A.P. vs. G.V. Suryanarayana,
AIR 1965 SC 11)
Introduction of new cause of action through amendment and notice u/s. 80 CPC- If by amendment of plaint, a
new cause of action is brought, then a fresh notice u/s. 80 CPC is mandatory. (Bishan Dayal vs. State of Orissa,
(2001) 1 SCC 555)
Death of plaintiff after issue of notice u/s. 80 CPC and before institution of suit--- Where notice u/s. 80
CPC by plaintiff’s father was issued to the Government but before the expiration of next two months
and institution of suit, the plaintiff’s father died and the suit was then filed by the son without giving
fresh notice u/s. 80 CPC, it has been held by the Supreme Court that the notice u/s. 80 CPC already
issued is sufficient and fresh notice is not necessary.(Ghanshyam Dass vs. Dominion of India, AIR 1984
SC 1004)
Sec. 80 CPC to apply only in respect of acts of public officers done in their official capacity- Where
interim injunction u/o. 39, r. 1 CPC was sought by the plaintiff in a suit for permanent injunction in
respect of acts done by the public officer in his official capacity but no notice u/s. 80 CPC was given, it
has been held that the suit was hit by Sec. 80 CPC and interim injunction could not have been granted.
(U.R. Agarwal vs. Brahm Singh, AIR 1976 All 243)
Suit filed before expiration of two months next after notice u/s. 80 CPC not maintainable- A suit
preferred before expiration of two months next after notice u/s. 80 CPC is not maintainable.(Bihari
Chowdhary vs. State of Bihar, (1984) 2 SCC 627)
Order granting leave u/s. 80(2) CPC to be speaking- Order granting leave u/s. 80(2) CPC must indicate the grounds
pleaded and the application of mind thereon. (State of A.P. vs. M/s. Pioneer Builders, 2006 (65) ALR 630 (SC)
The period of 2 months is there for the purpose of providing an opportunity to the concerned
authority for addressing the issue and saving time of both, the accused government or public
officer and the plaintiff. There is not much scrutiny have done on the success rate of this
section in CPC. But the findings of Law Commission in reports point outs that this tool is not
being utilised as an opportunity to resolve dispute, instead it is misused as a technical defence
for delaying the justice.
Legislature or Judiciary should attempt to preserve the intent of this legislation. Like the
judiciary can impose exemplary damages in the cases where the authority is at fault, and it
could correct its action within 2 months after receiving the notice. These steps can make this
section more meaningful and pragmatic which can be ultimately proved helpful in reducing
the giant heap of clogged cases in Indian Judicial system.
Thank you…