WRITS

Introduction

The most significant and fascinating but complex segment of administrative law is that pertaining to judicial control of administrative action. It has been suggested that two important aspects of administrative law, among others, are the control mechanisms over the administration and the remedies and relief which a person can secure against it when his legal right is infringed by any of its actions.
It is an accepted axiom  that the real kernel of democracy lies in courts enjoying the ultimate authority to restrain the exercise of absolute and arbitrary power. Without some kind of judicial power to control administrative  authorities, there is a danger that they commit excess and degenerate into arbitrary bodies. Courts must install the administrative bodies and officials to function within the limits of the ambits of the country’s legal system as they tend to ignore such limits.

Definition of Writs

An order issued by a 
court requiring that something be done or giving authority to do a specified act.The development of English CommonLaw relied on the courts to issue writs that allowed 

persons to proceed with a legal action. Over timethe courts also used writs to direct other courts, sheriffs, and attorneys to perform certain actions. In modern law, courts primarily use writsto grant extraordinary relief, to grant the right of appeal, or to grant the sheriff authority to seize property. 

Under the Indian legal system, jurisdiction to issue ‘prerogative writs’ is given to the Supreme Court, and to the High Courts of Judicature of all Indian states. Parts of the law relating to writs are set forth in the Constitution of India.

Article 32 and 226 of the Constitution (Writ Jurisdiction)

The Supreme Court, the highest in the country, may issue writs under Article 32 of the Constitution for enforcement of Fundamental Rights and under Articles 139 for enforcement of rights other than Fundamental Rights, while High Courts, the superior courts of the States, may issue writs under Articles 226.

Scope of Article 32: Article 32 provides a quick and summary remedy of the enforcement of Fundamental Rights . Any person complaining of infraction of any of his fundamental rights by an administrative action can go straight to the Supreme Court for vindication of his right without required to undergo the dilatory proceedings from the lower court to the higher court. 

Article 32 is itself is a fundamental right (Mohd. Yasim v Town Area Committee, AIR 1952 SC115) and cannot be diluted or whittled down by legislation and can be invoked even when a law declares a particular administrative action final.

However, article 32 can be invoked only when an administrative action is in conflict with fundamental rights of the petitioner and it cannot be invoked even if the administrative action is illegal unless it is violation of fundamental rights.

Article 32 (1) provides the discretionary power to Supreme court to whether entertain the petition or not and not right of the petitioner. Once, it is admitted through the discretionary power of Supreme Court , Article 32(2) provides the remedies for the petition filed thereafter. 

Scope of Article 226: Article 226 is unlike Article 32 is writ jurisdiction of High Court’s discretionary power and equitable jurisdiction. The power under this Article is to reach justice wherever it is found. Where no legally enforceable right of the petitioner exists and can be invoked to enforce not only the Fundamental rights but also legal rights as well. It has broader in range than that of Article 32 . Because of its broad ambit, it serves as a big reservoir of judicial power to control administrative action and hundreds of writs can be moved under this Article in High Court.

Exception to writ Petition

a.       LACHES

A writ petition will be thrown out if the petitioner is guilty of laches. The Court helps the vigilant  and not the indolent. The petitioner should be diligent in pursuing his remedy and file writ petition within a reasonable time from the date of the order challenged and an undue delay on his part will debar him from getting and relief (Druga Prasad v Chief Controller of Imports, AIR 1970 SC769)

Articles  32 and 226 does not prescribe any period of limitation nor they are bound by limitation Act. The Supreme Court in the case of (Druga Prasad v Chief Controller, AIR 1970 SC769) stated that:

No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and it otherwise guilty of laches. That is a matter which must be left to the discretion of the High Court and like all matters left to the discretion of the court, in this matter too discretion must be exercised judiciously and reasonably.

b.       Principle of Res Judicata

Principle of Res Judicata in the same court: The rule of res judicata is based on considerations of public policy as it envisages that finality should attach to the binding decisions pronounced by the courts of competent jurisdiction, and that individuals should not be made to face the same litigation twice. Res Judicata in latin means “a matter (already) judged”. It is also called a Claim Preclusion. It is a common law practice meant to bar re-litigation of cases between the same parties in the court.  The issue should be between the same parties for the same cause of action and same relief. It such is writ petition, it will be rejected by the court once it is filed in the one court  if it is already filed in another court.

Res Judicata aims to prevent:

                  i.   Injustice to the parties of a case that has been supposedly concluded

                ii.   Injustice to the parties of a case that has been supposedly conclude

              iii.   Unnecessary waste of court of resources

              iv.   Prevent multiplying of judgments

                v.   Recovery of damages from the defendant twice for the same injury 

Res Judicata between Arts. 32 and 226 petitions

The Principle of res judicata applies in another context as well. A person complaining of infraction of his Fundamental Rights has a choice: he can either straightaway invoke the jurisdiction of the Supreme Court under Art. 32, or that of a High Court under Art. 226. If a person goes first to a High Court under Art.226, and his petition is dismissed there on merits , then he cannot approach the Supreme Court under Article 32 because of res judicata  as in case of Daryao v. State of U.P. AIR 1961 SC 1457. Where a petition under Art. 226 is disposed of on merits by a speaking order, such dismissal would amount to res judicata and would bar a petition under Art. 32 on same facts (K.Vidyasagar v. State of U.P. 2005). Where petition under Article 226 a relief is given up, the same cannot be sought in a writ petition under Article 32.

In such situation, he can reach the Supreme Court only by way of appeal. If, however, the High Court dismisses the petition not on merits but on some other technical ground, like laches or availability of an alternative remedy, through a speaking order, the re judicata does not apply and the petitioner can move the Supreme Court under Art.32. Consideration of an application under Article 32 is not barred by a previous application of High Court under Art.226, if it not decided on merits. Similarly, no res judicata arises if the petition is dismissed in limine without passing a speaking order (Ghulam Sarwar v, Union of India, AIR 1967 SC 1335).  

In limine is a Latin term meaning Latin "at the threshold," referring to a motion made before a trial begins. A motion in limine is usually made to exclude reference to anticipated evidence which is objectionable, so that a determination of the admissibility of the evidence can be made outside the presence of the jury. Such motions seek to avoid having the jury tainted by irrelevant, inadmissible, or prejudicial evidence. For example, a motion in limine may be a motion to suppress illegally obtained evidence

To Whom Writs can be issued

Writs are public law remedies and are generally designed to redress grievances against public officials or bodies. In the modern welfare state, the administration has assumed a sprawling and varied character. The state functions not only through the traditional Government Departments, officials, boards, administrative bodies and local governments but also through diversified various other agencies called public corporations, government public companies, commissions etc which discharge various types of functions.

Therefore, writs may be issued to:

a.        The Government

b.       Local Authorities

c.        Other authorities (under Article 12 related cases laws)

d.       Statutory Bodies

e.        Non-statutory Bodies

Who can apply for a writ

Locus Standi: Article 32 and 226 do not prescribe persons or classes of persons who may seek writs for redressal of their  of their grievances against the administration. The matter of “standing” thus lies within the realm of the courts. 

This was provided in case of J.M. Desai v. Roshan Kumar, AIR 1976 SC 578

i.                     Only he can take recourse to the writ jurisdiction whose own legal rights of person or property are directly and substantially injured.

ii.                   When a person suffers along with other members of the public by administrative action, he cannot chellenge the action in question unless he can show some special injury to himself, over and above what others have suffered.

iii.                 Where a person challenging an administrative action is a total stranger (whom the courts call as a meddlesome interloper), the court will not ordinarily entertain his petition.

Kinds of Writs and Grounds for issuance of these writs.

‘Writ’ is eminently designed by the makers of the Constitution, and in the same way it is developed very widely and efficiently by the courts in India. The Constitution broadly provides for five kinds of “prerogative” writs:

a.        Habeas Corpus,

b.       Mandamus;

c.        Certiorari;

d.       Quo Warranto; and

e.        Prohibition.

The scope of the writ of habeas corpus has considerably increased by virtue of the decision of the Supreme Court in Maneka Gandhi v. Union of India5 and also by the adoption of forty-fourth amendment to the Constitution. Since the judicial interpretation of Article 21 has extended the magnitude of the concept of the personal liberty and the Court introduced the element -of fairness and justness in the 'procedure established by law', now a writ of habeas corpus would lie if the law depriving a person of his personal liberty is not fair, just and equitable
(i) body of persons having legal authority to determine question;
(ii) the determination must affect the rights of subjects;
(iii) having the duty to act judicially;
(iv) act in excess of their legal authority.
(ii) the determination must affect the rights of subjects;
(iii) having the duty to act judicially;
(iv) act in excess of their legal authority.
(i) Lack or excess of jurisdiction
(ii) Violation of the principles of natural justice.
(iii) Error of law apparent on the face of the records.

a.        Habeas Corpus ( You may have the Body)

This writ is used primarily to secure the release of a person who has been detained unlawfully or without any legal justification. The great value of the writ is that it enables immediate determination of the right of person as to his freedom (Ranjit v. State of Punjab AIR 1959 SC 843).  The writ of habeas corpus has always been looked upon as an effective means to ensure release of the detained person from the prison. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another’s detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. However, even when writ of habeas corpus is issued, it does not automatically exonerate the detained person from liability. It merely ensures his release from prison and it does not have any bearing on his guilt or otherwise. 

Kanu Sanyal v. District Magistrate AIR 1973 SC 2684 .

The court in that case held that habeas corpus was essentially a procedural writ dealing with the machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ, declared the court is a command addressed to the person who is alleged to have another person unlawfully in his custody, requiring him to bring the body of such person before the court in order that the circumstances of the detention may be enquired into and an appropriate judgment rendered upon judicial enquiry into the alleged unlawful restraint. The characteristic element of the writ and the theory behind the whole procedure observed the court was the immediate determination of the right of the applicant's freedom and his release when the detention is found to be unlawful.

An application for habeas corpus can be made by any person on behalf of the prisoner as well as by the prisoner himself, subject to the rules and conditions framed by various High Courts. The writ of habeas corpus is an effective means of immediate release from unlawful detention whether in prison or private custody. Physical confinement is not necessary to constitute detention. Control and custody are sufficient Legal necessities and technicalities are no impediments to the court entertaining the writ of habeas corpus if the basic facts are found. The writ of habeas corpus cannot only be used for releasing a person illegally detained but it will be also used for protecting him inhumane treatment inside the jail as stated in Sunil Batra case4 

b.       Mandamus;

It is a command issued by a court to an authority directing it to perform a public duty imposed upon it by law. Eg., when a body omits to decide a  matter which it is bound to decide, it can be commanded to decide the same (Mysore v. Chandrasekhara, AIR 1965 SC 532).

In India, mandamus can be issued to undo what has already been done in contravention of a statute, or to enforce a duty to abstain from acting unlawfully. Mandamus is employed to enforce a duty the performance of which is imperative and not optional or discretionary with the authority concerned. Mandamus is not to enforce the performance of public duties by public authorities. Mandamus is not issued when Government is under no duty under law.

c.        Quo Warranto

The term Quo Warranto means what is your Authority?. The writ of quo warranto is used to judicially control executive action in the matter of making appointments to public offices under relevant statutory provisions. The writ is also used to protect citizen from the holder of a public which he has no right. The writ calls upon the holder of a public office to show to the court under authority he is holding the office in question. If he is not entitled to the office, the court may restrain him from acting in the office and may also declare the office to be vacant (University of Mysore v. Govinda Rao, AIR 1965 SC 491). The writ proceedings not only give a weapon to control the executive from making appointments to public office against law but also tend to protect the public from being deprived of which he has right to hold the office.

d.       Certiorari

Certiorari is a Latin term being in the passive form of the word ‘Certiorare’ meaning to inform. It was a royal demand for information. Certiorari can be described as “one of the most valuable and efficient remedies.” Certiorari is one of the five prerogative writs adopted by the Indian Constitution under Article 226 which would be enforced against the decisions of the authority exercising judicial or quasi judicial powers. Such powers are exercised when the authorities have failed to exercise the jurisdiction though vested in it or failed to exercise the jurisdiction though vested on him or to correct the apparent error on the face of record or there is violation of the principle of natural justice.  

According to the above statement the conditions are –

The most controversial condition was the requirement of acting judicially. It was interpreted as an additional requirement apart from affecting the rights by Lord Hewert in R. v. Legislative Com  1928 (1) KB 411 etc. This was confirmed by the Privy Council in Nakkuda Ali case 1951 AC 66. Our courts also adopted this interpretation. In England this confusion was cleared by Lord Reid in the landmark decision of Ridge v. Baldwin 1964, AC 40, Lord Reid reinterpreted Atkin LJ's words about the duty to act judicially. Accordingly it was not additional condition but a qualification of the earlier condition. Therefore, acting judicially means acting fairly where the determination affects a person's rights. This interpretation has extended the writ to administrative actions also which of course affect his rights.

         i.            In A.K.Kraipak v. Union of India AIR 1970 SC 150, the Supreme Court accepted Lord Reid's interpretation and held that distinction between quasi-judicial and administrative has become thin but it is not completely obliterated for other purposes. Therefore, since Kraipak a new trend has emerged in the expanding horizon of the writ of certiorari in India to control the administrative actions. It applies not only to legal authority but also to any agency or instrumentality of the state who acts arbitrarily in violation of law or Constitution. The broad grounds for issuing the writ are:

The last ground 'error of law apparent on the face' has become redundant in English law since the decision of the House of Lords in Anisminic Ltd. v. Foreign Compensation Commissioner 1969(2AC) 147, where the Court (Lord Reid), brought all errors of law under the jurisdictional law. This position is now confirmed after some controversy in the earlier stages after the decision in the Anisminic case. In India, our courts are still hesitant in this regard. The ground of 'error of law apparent on the face' is still being employed for certiorari. It is hoped that our courts will also follow the broad principle of 'jurisdiction law' as laid down in Anisminic case.

Thus the writ of certiorari is an important remedy to quash a decision of any court, tribunal or administrative authority if it acted ultra vires their powers.

e.       Writ of Prohibition

The writ of Prohibition is issued by the court exercising the power and authorities from continuing the proceedings as basically such authority has no power or jurisdiction to decide the case. Prohibition is an extra ordinary prerogative writ of a preventive nature. The underlying principle is that ‘prevention is better than cure .’ In East India Commercial Co. Ltd v. Collector of Customs , a writ of prohibition is an order directed to an inferior Tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise

In the same manner Electricity Commission case 1924(1KB) 171 Lord Atkin LJ said: “I can see no difference in principle between certiorari and prohibition, except that the latter may be invoked at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters, which would result in its final decision being subject to being brought up and quashed on certiorari, I think that prohibition will lie to restrain it from so exceeding its jurisdiction.”

In Hari Vishnu Kamath v. S. Ahmad Ishaque AIR 1955, SC 233, the Supreme Court said: Both the writs of prohibition and certiorari have for their object the restraining of inferior courts from exceeding their jurisdiction and they could be issued not merely to court but to authorities exercising judicial or quasi-judicial functions.

Since these decisions the scope of prohibition has expanded and it lies against the administrative authorities also. Lord Denning said, “It is available to prohibit administrative authorities from exceeding their powers or misusing them. In particular, it can prohibit a licensing authority. from making rules or granting licenses which permit conduct which is contrary to law” ¹¹. In India, prohibition is issued to protect the individual from arbitrary administrative actions.

It is an efficacious and speedy remedy where a person does not desire any other relief except to stop the administrative agency. An alternative remedy does not bar the issue of this writ. It can be issued even when the matter is decided to stop the authority from enforcing its decision. If the lack of jurisdiction is patent, the writ is issued as a writ of right.

  

Grounds for issuance of writs

a.       Cases of Nullity

 It is trite law that an order passed without jurisdiction is a nullity (Kiran Singh v. Chaman Paswan AIR 1954 SC 1062). According to the original or pure theory of jurisdiction, the jurisdiction of a tribunal is determinable at the commencement of a proceeding and if jurisdiction is properly assumed any order passed thereafter will be within jurisdiction and conclusive though it may be erroneous in fact or law.

 The case of Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC 1621, shows that an adjudication by a tribunal of limited jurisdiction is void, when:

i.                     Action is taken under an ultra vires statute

ii.                   The subject-matter of adjudication is beyond its competence or the order passed is such which it has no authority to pass

iii.                 The adjudication is procedurally ultra vires being in violation of fundamental principles of judicial procedure, and

iv.                 Jurisdiction is assumed by wrongly deciding jurisdictional questions of law or fact.

(a)     Cases of nullity may arise when there is a lack of jurisdiction at the stage of commencement of enquiry eg. When (i) authority is assumed under an ultra vires statute (ii) the tribunal is not properly constituted, or is disqualified to act, (iii) the subject-matter or the parties are such over which a tribunal has no authority to inquire and (iv) there is want of essential preliminaries prescribed by the law for commencement of the inquiry

(b)     It may also rise during the course or at the conclusion of the inquiry. These cases of are also want of jurisdiction if the word “jurisdiction” is understood in wide sense. Eg. (i) When the tribunal has wrongly determined a jurisdictional question of fact or law, (ii) when it has failed to follow the fundamental principles of judicial procedure.

b.       Error of law apparent on the face of the record

A decision of an authority can always be quashed if there is an error of law apparent on the face of the record even though the error is non-jurisdictional. Theoretically, neither certiorari nor prohibition is issuable merely on the ground that the decision of an authority involves an “error of law” which is neither “jurisdictional” nor “patent”. However, with the expansion of the concept of “patent error of law”, the scope of mere “error of law” has been very much narrowed down. Whenever a court wants to interfere, it can characterize an “error of law” as either “Jurisdictional “ or “patent”.

Jurisdictional Facts

There are two types of facts: facts which an authority has to determine to dispose of a dispute before it; and facts which must exist before an authority could exercise jurisdiction in a matter. The latter are known as “jurisdictional” or “collateral” facts. The existence of these facts is condition precedent for the application of a statutory standard or the assumption of jurisdiction by a body over a dispute and to decide it on merits. Thus, where an authority has power to requisition a vacant house, it is a condition precedent for requisitioning the house that it must be vacant which is a “jurisdictional “ or a “Collateral” fact.

A Statute may or may not give power to a body to determine the jurisdictional facts for itself. When no such power is conferred, judicial review extends to consideration of the evidence  by the court upon independent judgment, as if it is an appeal and to decide the existence of jurisdictional facts. The reason for this approach is that the jurisdiction of the body depends  on a correct decision as to jurisdictional facts and that by wrongly deciding a jurisdictional fact, body cannot give jurisdiction to itself which it does not possess under the law (Naresh v. Maharashtra, AIR 1967 SC1).

Findings of Fact

A court would not interfere with a decision of an authority merely on the ground of errors of fact. The writ jurisdiction is supervisory in nature, a court exercising the same is not to act as an appellate authority and it would not ordinarily review findings of fact by tribunals, for if it were to do so, these authorities would become merely transmitting agencies of evidence to the court, and much of the advantage of administrative adjudication will be lost.

Procedural Defects

If an authority fails to observe a procedural requirement which is considered to be mandatory, then its decision is liable to be quashed on the ground of ultra vires. Whether disregard of procedure would vitiate administrative actions or not depends upon whether the procedure is held to be directory or mandatory. Breach of directory procedure does not invalidate administrative action but breach of a mandatory provision would.  Article 320(3) lays down that while taking disciplinary  action against any civil servant in state the State Public Service Commission “shall be consulted.” Interpreting the provision, the Supreme Court held that it is only directory  and not mandatory and non-compliance with it would not vitiate the action of the Government (State of U.P. v. Manbodhan Lal AIR 1954 SC 912).

Moulding of Relief

Ordinarily the function of certiorari is to quash the decision of an authority leaving it to decide the matter again if it so likes. Similarly, mandamus directs the authority to discharge a mandatory duty laid on it by law and the court in doing so ask the authority to act in one specific way, eg. To grant a licence or not to cancel licence, without going into the merits of the case or laying down guidelines, as to how the authority is to act. In recent years the courts have not looked upon their task in such a mechanical manner and have tended to  mould their relief according to the exigency of the situation. They have tried to tailor the relief in accordance with the demand of justice in the circumstances of the specific case, lay down guidelines, go into the merits and even at times dilute the logical consequences of their own ruling on the law.

 State of Kerala v. T.P. Roshana AIR 1979 SC 765

SC held that though certain admission were found to be unconstitutional,seats in the medical colleges be increased by 30 so that all those who were injustifiably left out could be admitted without disturbing those who had already been admitted. The court action here may called as affirmative action.

 DISCLAIMER

The  above  publication is an academic note prepared for my Semester exam on Administrative Law. Most of the parts in this are either direct reproduction from various books or online sources and sources are not cited here. The major source for this article is from Principle of Administrative Law by M.P. Jain (Jain and Jain). Therefore, the author here bears no responsibility for any suits against  plagiarism or not citing references. Further, readers may only use this article to understand the concepts given here for their  self purpose and not for any commercial purpose. The author takes no responsibility on matters arising out of any use except for personal reading and understanding of the concepts provided here.