Administrative Practice; case law
Administrative Practice
VELMURUGU v. THE ATTORNEY-GENERAL AND ANOTHER (1981) 1 SLR 406 Fundamental Rights-Fundamental rights of freedom from torture or cruel, inhuman or discriminatory treatment or punishment-Fundamental right of freedom from arrest except according to procedure established by law - Articles 11 and 13 of the Constitution -Administrative practice. The application of a concept of administrative practice can extend State responsibility to cases where the material before court can show that occurrence of the acts complained of can be attributed to the existence of a general situation created or brought about by the negligence and indifference of those in authority. In the instant case if liability is to be imputed to the State, it must be on the basis of an administrative practice and not on the basis of an authorisation, direct or implied, or that these acts were done for the benefit of the State. It is not possible to characterise those acts, if they had taken place as alleged as acts incidental to the authority and powers vested in those persons nor have they been performed to further some objective of the State. They seem to be in the nature of individual and personal acts due to some aberration or idiosyncrasy. They are also suggestive of the venting of some grievance of a personal or private nature or in consequence of some strong passion, prejudice or malice. They are admittedly illegal and criminal acts and not merely acts that are unauthorized and ultra vires...........
.......... The Respondents relied also on the judgment of this Court in Thadchanamoorti v. A. G. (S. C. 63/80- S. C. minutes of 14th August 1980)(12) in support of their proposition as to what is meant by "executive or administrative action" as required by" Article 126. The decision in Ireland v. United Kingdom (13) by the European Court of Human Rights was referred to, and the following comment of Harris in his book "Cases and Materials of International Law" was
VELMURUGU v. THE ATTORNEY-GENERAL AND ANOTHER (1981) 1 SLR 406 Fundamental Rights-Fundamental rights of freedom from torture or cruel, inhuman or discriminatory treatment or punishment-Fundamental right of freedom from arrest except according to procedure established by law - Articles 11 and 13 of the Constitution -Administrative practice. The application of a concept of administrative practice can extend State responsibility to cases where the material before court can show that occurrence of the acts complained of can be attributed to the existence of a general situation created or brought about by the negligence and indifference of those in authority. In the instant case if liability is to be imputed to the State, it must be on the basis of an administrative practice and not on the basis of an authorisation, direct or implied, or that these acts were done for the benefit of the State. It is not possible to characterise those acts, if they had taken place as alleged as acts incidental to the authority and powers vested in those persons nor have they been performed to further some objective of the State. They seem to be in the nature of individual and personal acts due to some aberration or idiosyncrasy. They are also suggestive of the venting of some grievance of a personal or private nature or in consequence of some strong passion, prejudice or malice. They are admittedly illegal and criminal acts and not merely acts that are unauthorized and ultra vires...........
.......... The Respondents relied also on the judgment of this Court in Thadchanamoorti v. A. G. (S. C. 63/80- S. C. minutes of 14th August 1980)(12) in support of their proposition as to what is meant by "executive or administrative action" as required by" Article 126. The decision in Ireland v. United Kingdom (13) by the European Court of Human Rights was referred to, and the following comment of Harris in his book "Cases and Materials of International Law" was