Monday, September 18, 2023
    BlogPrivileges  and Immunities of the Administration

    Privileges  and Immunities of the Administration

    This article is written by Aditi Shakya. She is a Legal Researcher at Legal Thirst.


    According to the Constitution, Parliament has a number of duties that each member is responsible for carrying out. They are given parliamentary privilege or immunity from some procedures so that they can do their duties without interference. The premise behind this concept is that the dignity and authority that members of parliament possess must not be diminished. The term “privilege” refers to the granting of certain privileges or immunity from particular processes that are not available to the general public. This unique privilege is granted to guarantee the smooth and successful operation of the system. Except where it serves the interests of the Parliament, these privileges do not discriminate against or elevate members of the public above the general populace. All individuals are treated equally and their fundamental rights are upheld. When they are acting in their official capacity as a representative of a Member of Parliament, these privileges are granted to them. These members are primarily granted these privileges and immunities in court proceedings by Articles 105 and 122.

    Every issue has a solution. These remedies assist in preventing the recurrence of the extraordinary legal remedies that are accessible to an individual against an unlawful for the purposes of administrative activities. However, they do not offer the person who has been wronged full restitution. The existence of certain privileges and immunities possessed by the state may limit private persons’ access to ordinary courts and conventional legal remedies.

    According to several statutes, the government is granted the following privileges:

    • Privileges and Immunities under the Civil Procedure Code, 1908. –

    According to Section 80 (1), no lawsuit may be brought against the Government or a public official for any act that is allegedly performed in that person’s official capacity until two months have passed after written notice has been given in accordance with the section’s instructions. The clause is required and does not allow for any exceptions. As a result, giving notice is required. It should be noted that the duty of notice is optional if a public officer acts without authority. Its goal seems to be to give the government or the public official a chance to think about their legal options and resolve the dispute out of court.

    To minimize the hardships for the litigants a new Clause (20) was inserted in Section 80 of the C.P.C by the Civil Procedure Code Amendment Act, 1970. The clause provides that the Court may grant leave to a person to file a suit against the Government or a public officer without serving the two-month notice in cases where the relief claimed is immediate and urgent. Before granting this exemption the Court is required to satisfy itself about the immediate and urgent need.

    It is to be noted that S.80 of the C.P.C. does not apply to a suit against a statutory Corporation. Consequently, in case the suit is filed against the statutory Corporation. Consequently, such notice is not required to be given in cases the suit is filed against a statutory Corporation.

    Regarding a claim brought before the claim Tribunal under the Motor Vehicle Act, Section 80 does not apply.

    A writ petition against the government or a public official is exempt from Section 80 of the Civil Procedure Code, and Section 82 of the C.P.C. also grants the government privilege. Section 80 of the C.P.C. does not require notice to be given. This section states that when a lawsuit is brought by or against the government or a public official, a deadline must be specified in the decree. If the deadline is not met, the decree must be satisfied within three months of the decree’s date. If no deadline is stated, the Court must report the case in accordance with government orders. Therefore, a decree against the government or a public official cannot be carried out right away.

    • Immunities from the operation of the statute –

    In India, the law presently holds that the State or Government is bound by it unless it has been explicitly or necessarily impliedly exempted or excluded from its application. It is not difficult to determine whether the statute is obligatory on the State when it has been expressly exempted from its application, but it becomes problematic when the State is excused from the application of the act by necessary inference. However, legislation is considered to be exempt from the required implications of the statute when it calls for criminal prosecution that involves imprisonment.

    • Privileges under the Evidence Act-

    Section 123 states that only with the approval of the officer at the Head may anyone present any evidence acquired from unpublished official records relating to any matter of State. The only documents that fall within this category are those that deal with state matters and whose publication would harm the general welfare. The document must be related to matters of the state, and its publication must be contrary to the interests of the State or the general good.

    The section’s foundation is the idea that releasing the document in question would be detrimental to the public interest. And that where there is a conflict between the public interest and the private interest, the public interest must prevail.

    The Court has the authority to determine whether this communication was given to the officer in confidence. The communication must have been made to a public officer in confidence for Section 124 to apply, and the public officer must believe that disclosing the communication will harm the public interest.

    In accordance with Section 162, a witness who is asked to produce a document must do so without regard to any objections to its production or to its admissibility if the document is in his custody or under his control. The Court will determine whether any such objections are justified.

    Unless the document is related to matters of State or requires more proof, the court may inspect the document if it deems it appropriate in order to assess its admissibility. If any document needs to be translated for this purpose, the court may, if it sees appropriate, order the translator to keep the information confidential; otherwise, the translator will be considered to have violated Section 166 of the Indian Penal Code.

    The provisions of Section 162 apply to both official and private documents. The court had the chance to talk about the scope of the government’s privilege to withhold records in the State of Punjab v. Sodhi Sukdev Singh, where the twin claims of governmental confidentiality and individual justice vied for recognition.

    Since the court was very aware of the limitations of this privilege for private defence, Gajendragadkar, J., who delivered the majority judgement, cautioned that care must be taken to ensure that interests other than those of the public do not dissimulate as those of the public and unfairly exploit Section 123’s provision. 

    Further refining the formulations, the court in Amar Chand v. Union of India denied the privilege when there was evidence that the authority had failed to consider the harm to the public interest that would result from the document’s revelation. In Indira Nehru Gandhi v. Raj Narain, the Court ordered the production of the policy’s Blue Books and rejected the privilege assertions.

    •  Immunity from Promissory Estoppel-

    A party is prohibited from disputing the existence of certain facts that he had previously asserted and that the opposing party has relied upon or is permitted to rely upon under the doctrine of estoppel. The idea of promissory estoppel was developed by courts in accordance with the equity principle to prevent unfairness.

    Administrative law has a strong foundation for the equitable estoppel or promissory estoppel theory. The doctrine stands for the principle that equity is developed to prevent injustice. It is clearly known that the theory against the government can be used, especially when it is required to stop blatant injustice to any individual. The notion of promissory estoppel against the government where it is required to stop fraud or blatant injustice when performing government, public, or executive tasks. The argument of executive necessity or future executive action freedom cannot be used to argue against the theory within the aforementioned restrictions.

    Nevertheless, the theory cannot be used to force the government or public authority “to carry out a representation or promise.”


    a) that violates the law, or

    b) that the government official or public authority lacks the jurisdiction or power to make.

    It should be noted that estoppel cannot be used as a defence against a law or a minor. If the representation or statement of facts made under Section 115 is against the law or an act of the legislature, estoppel does not apply to the government; however, it may be used in the case of an irregular act. The Promissory Estoppel doctrine has increased the government’s culpability.

    • Doctrine of Promissory Estoppel-

    The Promissory Estoppel doctrine is frequently used to hold the government accountable for its promises and prevent it from breaking them. This idea states that if someone makes a promise or assurance through their words or actions and the recipient follows through on it in a negative way, the promise-maker is not permitted to change his or her mind or depart from the assurance.

    The Supreme Court ruled in Delhi Cloth and General Mills v. Union of India that no proof is necessary for the Promissory Estoppel principle to be applied when a party acts on an assurance of a promise to change their stance.

    However, according to the legal opinion, it cannot be used to challenge a statutory provision, support an ultra vires act, or compel the Government or a public entity to fulfil a promise that is against the law or exceeds its authority.

    The doctrine of Promissory Estoppel was once more expanded by the Supreme Court in Century Spinning and Manufacturing Co. Ltd. v. Ulhasnagar Municipal Council. This theory was used in this instance against public authority. The Court has made it clear that when it comes to the Promissory Estoppel concept, this Court will not differentiate between a private individual and a public body.


    If a member of parliament satisfies the requirements set forth in the section, they may request the privileges under administrative law, which are entirely dependent upon the Court. In order to keep the government running efficiently, privileges are nothing more than an exclusive right that is granted. Such privileges and immunities may result in the abuse of power, thus they are offered in a way that they can be utilised in their official capacities, and the court has the last say on whether to award them. The public order, the interests of the government, and the efficient operation of the legislature must all be taken into consideration when determining whether a power or privilege is being abused.

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