The Indian Constitution’s anthem is social and economic justice. The Constitution includes writ remedies that the High Court and Supreme Court can use to enforce fundamental rights that are frequently unassailable.. The ability to provide relief to the harmed party includes the award of compensation, which is a significant component of these remedies. This results from the fact that the state not only has a legal obligation to defend the rights guaranteed, but also a social need to make amends to those who are harmed when these rights are violated. On the other hand, the administrative procedure has grown significantly. As a welfare state is essentially an administrative state, this makes sense. This research paper deals with the Concept of Writs, its background and also its Role in Administrative Action.
The 1st question that arises white writing this research paper is, what is writ? The answer is that a writ is a formal written order issued by a government entity in the name of the sovereign power. This government body is typically a court. In modern democracies, administrative officials have a lot of discretion. In the lack of clear rules, etc., the use of those powers frequently becomes subjective.
Hence the need for a control of the discretionary power is essential to ensure that ‘Rule of law’ exist in all government actions. In modern democracies, administrative officials have a lot of discretion. In the lack of clear rules, etc., the use of those powers frequently becomes subjective. Safeguards of the fundamental rights and assurance of natural justice are the most important components of writ jurisdiction.
Origination of writs in India
In India writs were brought up in 1773, through Regulating Act, 1773 under which Supreme Court was established at Calcutta. As successors to the Supreme Court, the charter also established other high courts and granted them the authority to do so. The writs jurisdiction of these courts was limited to their original civil jurisdiction which they enjoyed under Section 45 of the specific Relief Act, 1877.
Article 32- Protection of Fundamental rights.
If the fundamental right of any person is being violated then he/she can approach the Supreme court by directly using Article 32. It gives power to the Supreme court to issue 5 kinds of writs to protect fundamental rights.
This feature of Article 32 makes the Supreme court as the ‘Protector and Guarantor of Fundamental Rights’. It is because of this feature of the Article that Dr. B.R Ambedkar called this article to be “the heart and soul of the constitution”.
Article 32 and Article 226
This article gives the same powers as of article 32 but you can approach the high court through this article when any person’s fundamental right is being violated and in addition writs can be issued under this article for any other purpose. Example- writ against the decision of an administrative tribunal.
Article 32- Approach Supreme court
Article 226- Approach High court
There is no such law that tells to approach High court first, rather than Supreme court, but if any person approaches the Supreme court in first place, then he/she has to give the reason for not approaching the high court first.
Difference between Article 32 and Article 226
- Article 32- writ issuing power under this article is only limited to Fundamental rights
Article 226- writ issuing power under this article extends to fundamental rights and ‘any other purpose’.
- Article 32- As this article falls under Part III of the constitution, it is a fundamental right.
Article 226- Remedy under this article is not fundamental right.
These writs are Latin terms-
- Habeas Corpus
- Quo Warranto
1)Habeas Corpus- To have a body.
Most powerful and most used writ.
If a person is detained illegally by the state, then the relatives, friends or the person himself / herself can use the writ of Habeas Corpus for the release of that person. When this writ is issued then the Supreme court or High Court asks the detaining authority the basis of detention of person concerned and if the bases is found to be unreasonable, then the detention ends and the person is released with immediate effect.
CASE – Rudul Shah v. State of Bihar-
A person whose term of imprisonment was already completed was kept for extra 14 years in the jail.
Following this, when the matter was brought up, by using the writ of Habeas Corpus, he was immediately released and was given Exemplary Damages for the damages he faced.
4 conditions in which writ of Habeas Corpus cannot be used
1) When detention is lawful.
2) There is contempt of court.
3) Detention is outside the jurisdiction of the court.
4) Detention is by a competent court.
2) Mandamus- We command
Through this writ, you can command a public official to perform his Public Duty.
CASE- Gujarat State Financial Corporation v. Lotus Hotels. AIR – 1983 SC 848-
Financial Corporation made an agreement with Lotus Hotels and said that we will release the funds so that you can complete your construction work and later they don’t release the funds. Lotus Hotel approaches the Gujarat High Court. Writ of Mandamus is issued by the Gujarat High Court and orders the authority to perform its promised Public Duty.
CASE- State of Mysore v K.N.Chandrasekhara
The Public Service Commission has been ordered by the High Court to include the names of the six petitioners in the list it has created in accordance with Rule 9(2) of the Rules for the appointment of candidates to the cadre of Munsiffs. The High Court believed that the selection of ten individuals whose names were on the list under R. The six applicants should be added to the list, and appointments should be made from that list, but 9(2)’s determination of fitness for promotion could not be changed.
Any person or corporate body may be granted the same directive as that provided to the public service commission by the high court to carry out their public duty.
3) Certiorari– to be certified.
Through this writ the Supreme Court/ High Court can give command to a Lower court to submit its record to the Supreme court /High Court for review. It is looked upon that the judgement of the lower court or legal or not.
When can their judgement be illegal-
- a) excess of Jurisdiction
- b) lack of Jurisdiction
- c) unconstitutional jurisdiction
d)violation of natural principles of Justice.
If the judgements are found to be illegal, they are quashed which means that their judgement has no value now and it is not to be followed.
Gullapalli Nageshwara Rao v. APSRTC 1959 AIR 308 1959
The Supreme Court ruled that the basic tenet of natural justice requires that both parties to a matter be given an equal opportunity to submit their arguments, but where a right to a personal hearing is expressly granted in a statute, the person making the decision must personally hear the case.
These principles were breached in the instance at hand since the Chief Minister decided the objections after the Home Secretary, who was in charge of transportation and was therefore a party to the dispute, heard them. As a result, the State Government’s decree authorising the proposal must be reversed.
4) Prohibition– to forbid
Prohibition is prevention and certiorari is cure.
The difference between prevention and cure is same as the difference between Prohibition and Certiorari.
When illegal judgement is already given then Certiorari is used as a cure, and the decision is quashed, but before the cure, comes the prevention, that is Prohibition. Before the judgement is announced, if we want to prevent the mistake, then writ of Prohibition is used. In short it means to stop court from pronouncing a judgement.
East India Commercial Co. Ltd. v Collector of Customs
The Supreme Court notes in the relevant case that a writ of prohibition is an order instructing lower courts and tribunals to cease proceedings on the grounds that the procedure is being conducted with excessive or insufficient jurisdiction.
5) Quo Warranto– by what authority
By using this writ, court can question any Public Office that by what authority have you assumed this Public office and if the officer’s title is defective, then he has to vacate the office.
Shiam Sunder v State of Punjab
In the case at hand, a municipality filed a writ petition under article 226 with the Punjab and Haryana High Court, asking for an order in the nature of a quo warranto and an investigation into the elected members of the municipality. The investigation revealed that 10 of the elected members of the Municipality Board had been appointed improperly, and their seats had been declared vacant. In all these 5 writs, only the writ of Quo Warranto can be filed by anyone, i.e., even a stranger can file it.
ROLE OF WRITS IN ADMINISTRATIVE ACTION
Now as far as the role of the writs is concerned, let us go by illustration over the cases on discretion. Conferment of discretionary power has been accepted as necessary phenomena of modern administrative and constitutional machinery. Law making agency legislates the law on any subject to serve the public interest and while making law, it has become indispensable powers that are subject to judicial review. The rider is that the Donnie of the discretionary powers has to exercise the discretionary power has to exercise the discretion in good faith and for the purpose for which it is granted and subject to limitations prescribed under the Act. The courts continue to have the authority to judge whether the statute is reasonable. Most of the time, courts consider two issues: first, whether the statute is a piece of substantively legal legislation, and second, if the act offers procedural protections.if these two tests are not found, the law is declared ultra vires and void under the Article 14 of the constitution.
Beside this, Courts control the discretionary powers of the executive government being exercised after the statutes have come to exist. Once they come into existence, it becomes the obligation of the Executive Government to govern the powers within constraints given to achieve the aim of the Statute. The various government executives’ discretionary powers play a significant role in administrative decision-making, and they immediately fall foul of the established rules of administrative law. The exercise of these discretionary powers is void if they are not done so correctly, if the executives abuse or misuse them, if they consider things that are irrelevant and are not within their purview, or if they simply misdirect them from the proper application of the law. When it is determined that executives uphold the standard of reasonableness in their decisions, judicial review is excluded.
Errors are often crept in either because they would maintain pure administrative spirit as opposed to judicial favour or that they influence their decisions by some irrelevant considerations or that sometimes, the authorities may themselves misdirect in law or that they may not apply their mind to the facts and circumstances of the cases. Besides, this aspect, they may act in derogation of fundamental principles of natural justice by not conforming to the standard or reasons and justice or that they do not just truly appreciate the existence or non-existence of circumstances that may entitle them to exercise the discretion. The Executive must make judgments by taking into account pertinent factors.
They should not refuse to evaluate significant matter nor should they take into account matters that are entirely irrelevant or superfluous. They shouldn’t take a legal matter in the wrong direction. Only such a decision will be lawful. The courts have power to see that the Executive acts lawfully. They cannot avoid judicial scrutiny by omitting to provide justifications. The court can order them to reconsider the situation in light of pertinent factors if they provide reasons, even though the propriety, adequacy, or satisfactory nature of their justifications may not be subject to judicial review. Even if the Executive considers it inexpedient to exercise their powers, they should state their reasons and there must be material to show that they have considered all the relevant facts.”
The role of writs is also sensibly laid down in a famous Padfield’s case
In England in former days the Courts frequently refused to interfere where the Government or the responsible official passed what was considered a non-speaking order, that is, an order which on the face of it did not describe the grounds for the commands. Where a speaking order was passed the Courts proceeded to evaluate whether the grounds offered for the order or conclusion were relevant considerations. Where there existed a non-speaking order, they used to argue that it was like the face of the Sphinx in the sense that it was incurable and therefore held that they could not discuss the matter of the legitimacy of the order. Even in England the Courts have travelled very far since those days. They no longer find the face of the Sphinx mysterious.
The prerogative powers of writ jurisdiction provided by the constitution for judicial review of administrative action is obviously discretionary and yet limitless in its bounds. The discretion however should be exercised on sound legal principles. In this regard, it is critical to emphasise that the foundation of the entire constitutional system is the rule of law, which is first and foremost the absence of arbitrary power. In a system governed by rule of law when discretion is conferred upon the executive authorities it must be based on clearly defied limits. Thus, the rule of law from this point of view suggests that the discretion or the judgement must be based on some principles and standards. In general, the decision should be predictable and citizens should know where he is. A decision is arbitrary and not in accordance with the rule of law if it is made without reference to any principles or regulations.
Nobody is supreme because the Constitution is the law of the land. Even the judges of Supreme Court are not above law and they are constrained by the rulings which are the law of the land announced by them under the writ petitions. Thus, the constitutional remedies given under the constitution serve as a check and keeps the operation of government within the confines of law. The judiciary or law is supreme in our nation. Writ jurisdictions are judicial reviews of administrative actions. The judiciaries are constantly on guard to ensure that each administrative action is carried out in accordance with the law. Therefore, the writ jurisdictions serve as judicial restraints on policy decisions that are irrational, unjust, and contrary to the general good.
By- Snigdha Dubey