Though the doctrine of public trust has been largely applied by Supreme Court in environmental matters, it cannot be disputed that the executive exercises its powers as a ‘trustee’ of the citizens. Therefore, the executive actions must be consistent with maintaining public trust.
Conversely, when the executive acts in breach of the principles of ‘rule of law’ and ‘separation of powers’, the doctrine of public trust and accountability would come into play.
Judicial Precedents
Supreme Court in the case of Delhi Airtech Services Private Limited and another v. State of Uttar Pradesh and another[1] observed thus:
“213. These authorities are instrumentalities of the State and the officers are empowered to exercise the power on behalf of the State. Such exercise of power attains greater significance when it arises from the statutory provisions. The level of expectation of timely and just performance of duty is higher, as compared to the cases where the power is executively exercised in discharge of its regular business.
Thus, all administrative norms and principles of fair performance are applicable to them with equal force, as they are to the government department, if not with a greater rigour. The well-established precepts of public trust and public accountability are fully applicable to the functions which emerge from the public servants or even the persons holding public office.
In State of Bihar v. Subhash Singh [(1997) 4 SCC 430], Supreme Court, in exercise of the powers of judicial review, stated that the doctrine of “full faith and credit” applies to the acts done by the officers in the hierarchy of the State. They have to faithfully discharge their duties to elongate public purpose.
The concept of public accountability and performance of functions takes in its ambit, proper and timely action in accordance with law. Public duty and public obligation both are essentials of good administration whether by the State or its instrumentalities.
In Centre for Public Interest Litigation v. Union of India [(2005) 8 SCC 202: (2006) 1 SCC (Cri) 23], Supreme Court declared the dictum that State actions causing loss are actionable under public law. This is a result of innovation, a new tool with the courts which are the protectors of civil liberties of the citizens and would ensure protection against devastating results of State action. The principles of public accountability and transparency in State action are applicable to cases of executive or statutory exercise of power, besides requiring that such actions also not lack bona fides.
All these principles enunciated by the Court over a passage of time clearly mandate that public officers are answerable for both their inaction and irresponsible actions. If what ought to have been done is not done, responsibility should be fixed on the erring officers; then alone, the real public purpose of an answerable administration would be satisfied.
The doctrine of “full faith and credit” applies to the acts done by the officers. There is a presumptive evidence of regularity in official acts, done or performed, and there should be faithful discharge of duties to elongate public purpose in accordance with the procedure prescribed. Avoidance and delay in decision-making process in government hierarchy is a matter of growing concern. Sometimes delayed decisions can cause prejudice to the rights of the parties besides there being violation of the statutory rule. Supreme Court had occasion to express its concern in different cases from time to time in relation to such matters.
In State of A.P. v. Food Corporation of India [(2004) 13 SCC 53 : 2006 SCC (L&S) 873] , Supreme Court observed that it is a known fact that in transactions of government business, no one would own personal responsibility and decisions would be leisurely taken at various levels.
Principles of public accountability are applicable to such officers/officials with all their rigour. Greater the power to decide, higher is the responsibility to be just and fair. The dimensions of administrative law permit judicial intervention in decisions, though of administrative nature, which are ex facie discriminatory. The adverse impact of lack of probity in discharge of public duties can result in varied defects, not only in the decision-making process but in the final decision as well.
Every officer in the hierarchy of the State, by virtue of his being “public officer” or “public servant”, is accountable for his decisions to the public as well as to the State. This concept of dual responsibility should be applied with its rigours in the larger public interest and for proper governance.”
Supreme Court held that the well-established precepts of public trust and public accountability are fully applicable to the functions which emerge from the public servants or even the persons holding public office. It has been held that the doctrine of “full faith and credit” applies to the acts done by the officers in the hierarchy of the State. They have to faithfully discharge their duties to elongate public purpose.
Supreme Court referring to its earlier decision in the case of Centre for Public Interest Litigation and another v. Union of India and another[2] held that the State actions causing loss are actionable under public law. The courts, which are the protectors of civil liberties of the citizens, would ensure protection against devastating results of State action. The principles of public accountability and transparency in State actions are applicable to cases of executive or statutory exercise of power, besides requiring that such actions also do not lack bona fides.
The Court held that the public officers are answerable for both their inaction and irresponsible actions. For such actions or inactions, responsibility should be fixed on the erring officers so as to ensure the real public purpose of an answerable administration.
The Court held that the principles of public accountability are applicable to the government officials with all their rigour. Greater the power to decide, higher is the responsibility to be just and fair. It has been held that every officer in the hierarchy of the State, by virtue of his being “public officer” or “public servant”, is accountable for his decisions to the public as well as to the State. It has been held that the concept of dual responsibility should be applied with its rigours in the larger public interest and for proper governance.
Supreme Court in the case of Express Newspapers Pvt. Ltd. and others v. Union of India and others[3] had an occasion to consider the distinction between exercise of power in good faith and misuse in bad faith. While elaborating the principle of fraud on power, Supreme Court observed thus:
“119. Fraud on power voids the order if it is not exercised bona fide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bona fide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers…..”
In the case of Nilabati Behera v. State of Orissa and others[4], Supreme Court while considering as to whether the courts exercising writ jurisdiction could grant relief under the public law to a citizen complaining of infringement of the indefeasible right guaranteed under the Constitution, observed thus:
“32. Adverting to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortious act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction.
The primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve ‘new tools’ to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law. While concluding his first Hamlyn Lecture in 1949 under the title “Freedom under the Law” Lord Denning in his own style warned:
“No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do : and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age.
They must be replaced by new and up-to date machinery, by declarations, injunctions and actions for negligence…. This is not the task for Parliament … the courts must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare state; but abused they lead to a totalitarian state. None such must ever be allowed in this country.””
In the case of Common Cause, a registered society v. Union of India and others[5], Supreme Court observed thus:
“90.Halsbury’s Laws of England, Vol. I(I) 4th Edn. (Reissue), (para 203) provides as under: “Deliberate abuse of public office or authority.—Bad faith on the part of a public officer or authority will result in civil liability where the act would constitute a tort but for the presence of statutory authorisation, as Parliament intends statutory powers to be exercised in good faith and for the purpose for which they were conferred. Proof of improper motive is necessary in respect of certain torts and may negative a defence of qualified privilege in respect of defamation, but this is not peculiar to public authorities.
There exists an independent tort of misfeasance by a public officer or authority which consists in the infliction of loss by the deliberate abuse of a statutory power, or by the usurpation of a power which the officer or authority knows he does not possess, for example by procuring the making of a compulsory purchase order, or by refusing, or cancelling or procuring the cancellation of a licence, from improper motives. However, where there has been no misfeasance, the fact that a public officer or authority makes an ultra vires order or invalidly exercises statutory powers will not of itself found an action for damages.”
De Smith in Judicial Review of Administrative Action, while speaking of tort of misfeasance in public office, says as under: “A public authority or person holding a public office may be liable for the tort of misfeasance in public office where:
(1) there is an exercise or non-exercise of public power, whether common law, statutory or from some other source; (2) which is either (a) affected by malice towards the plaintiff or (b) the decision maker knows is unlawful; and (3) the plaintiff is in consequence deprived of a benefit or suffers other loss.”
De Smith further says as under: “A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Where misfeasance is alleged against a decision-making body, it is sufficient to show that a majority of its members present had made the decision with the object of damaging the plaintiff. Often there may be no direct evidence of the existence of malice, and in these circumstances the court may make adverse inferences, e.g. from the fact that a decision was unreasonable, that it could only be explained by the presence of such a motive.
A court will not entertain allegation of bad faith or malice made against the repository of a power unless it has been expressly pleaded and properly particularised.”
Reference
In Re: Directions in the matter of demolition of structures (2024)
[1] (2011) 9 SCC 354
[2] (2005) 8 SCC 202
[3] (1986) 1 SCC 133
[4] (1993) 2 SCC 746
[5] (1999) 6 SCC 667