Admin Law Abstract
Admin Law Abstract
Admin Law Abstract
PROJECT TITLE:
''SCOPE OF PREROGATIVE REMEDIES”
SEMESTER- 6th
ACKNOWLEDGEMENT
On the occasion of the submission of the project of Family Law II on the topic ‘Will' under
Hindu Succession Act, 1956. I take immense pleasure in thanking our Sir S. Radhakrishna for
endowing me with this opportunity to project my ideas on this wonderful topic. It is with his
guidance and tremendous support that I have succeeded in completing this project. I thank him
for coming up with this idea because as a result of this, I have imbibed intricate knowledge about
the topic.
Abstract:
Social and Economic Justice is the signature tune of the Indian Constitution. It guarantees,
fundamental rights which cannot be ordinarily derogated from, in protecting these right, the
Constitution has provided for writ remedies enforceable by the High Court and the Supreme
Court. An important dimension of these remedies is the award of compensation as part of the
relief that can be granted to the affected person. This arises from the fact that not only does the
state have a legal duty in protecting the rights guaranteed, but also a social duty to compensate
the affected, when the state violates these rights. On the other side, there has been tremendous
expansion in the administrative process. This is natural in a welfare state as a welfare state is
Prerogativeremedies.
~ SYNOPSIS
RESEARCH METHODOLOGY
For the project Scope of Prerogative Remdies” resources referred to in the course of research
include books, journals, law reports and cases, most of them accessed from the DSNLU law
library. Other sources like articles, and the like were accessed online through the use of online
databases. All direct quotations have been properly footnoted.
The aim of the project is to trace the origin of the Writs? Origin of Prerogative remedies? Why
the Law governing the Prerogative remedies is important? Changes seen in the flexibility of
Prerogative remedies in India and England. The landmark ruling of the Supreme Court in various
Cases.
The project covers the development of the Prerogative remedies from England to India.
Difference between the Indian law on Writes and English law.
The research is limited to the resources available at the DSNLU Library. Books related to the
topic are available at the library. Also, the sources available on the internet helped a considerable
deal. Suggestions from the course-instructor and fellow students have been incorporated
wherever necessary.
~Introduction:
The first question which came in our mind while looking at the topic is - What Is Writ? The
answer is here- “A Writ is a formal written order issued by a government entity in the name of
the sovereign power. In most cases, this government entity is a court. In modern democratic
countries, the administrative authorities are vested with vast discretionary powers. The exercise
of those powers often becomes subjective in the absence of specific guidelines etc. Hence the
need for a control of the discretionary powers is essential to ensure that ‘Rule of Law’ exist in all
governmental actions. The judicial review of administrative actions in the form of writ
jurisdiction is to ensure that the decisions taken by the authorities are legal, rational, proper, just,
fair and reasonable. Safeguard of fundamental rights and assurance of natural justice are the most
important components of writ jurisdictions.
A prerogative writ is a writ (official order) directing the behavior of another arm of
government, such as an agency, official, or other court. It was originally available only to the
Crown under English law, and reflected the discretionary prerogative and extraordinary power of
the monarch.
Origin of Writs:
The origin of writs can be drawn from the English Judicial System and were created with the
development of English folk courts to the common law courts. The law of writs has its origin
from the orders passed by the King’s Bench in England. Writs were issued on a petition
presented to the king in council and were considered as a royal order. Writs were a written order
issued in the name of the name of the king. However, with different segments writs took various
forms and names. The writs were issued by the crown and initially only for the interest of the
crown later on it became available for ordinary citizens also. A prescribed fee was charged for it
and the filling of these writs were known as Purchase of a Writ.
In England, six writs are traditionally classified as prerogative writs, which is also be identified
as an extraordinary writ or extraordinary remedy.
certiorari, an order by a higher court directing a lower court to send the record in a given
case for review;
habeas corpus, a demand that a prisoner be taken before the court to determine whether
there is lawful authority to detain the person;
procedendo, to send a case from an appellate court to a lower court with an order to
proceed to judgment;
quo warranto, requiring a person to show by what authority they exercise a power.
Origination in India:
The origin of writs in India goes back to the Regulating Act, 1773 under which Supreme Court
was established at Calcutta. The charter also established other High Courts and also gave them
power to issue writs as successor to Supreme Court. The writ jurisdiction of these courts was
limited to their original civil jurisdiction which they enjoyed under Section 45 of the Specific
Relief Act, 1877.
Writs are meant as prerogative remedies. The writ jurisdictions exercised by the Supreme Court
under article 32 and by the High Courts under article 226, for the enforcement of fundamental
rights are mandatory and not discretionary. But the writ jurisdiction of high courts for 'any other
purpose' is discretionary. In that sense the writ jurisdiction of high courts are of a very intrinsic
nature. Hence high courts have the great responsibility of exercising this jurisdiction strictly in
accordance with judicial considerations and well established principles. When ordinary legal
remedies seem inadequate, in exceptional cases, writs are applied.
1. Habeas Corpus:
The meaning of the Latin phrase Habeas Corpus is 'have the body'. According to Article 21, "no
person shall be deprived of his life or personal liberty except according to the procedure
established by law". The writ of Habeas corpus is in the nature of an order directing a person
who has detained another, to produce the latter before the court in order to examine the legality
of the detention and to set him free if there is no legal justification for the detention. It is a
process by which an individual who has been deprived of his personal liberty can test the validity
of the act before a higher court.
The objective of the writ of habeas corpus is to provide for a speedy judicial review of alleged
unlawful restraint on liberty. It aims not at the punishment of the wrongdoer but to resume the
release of the retinue. The writ of habeas corpus enables the immediate determination of the right
of the appellant's freedom. In the writs of habeas corpus, the merits of the case or the moral
justification for the imprisonment or detention are irrelevant.
In A.D.M. Jabalpur v. Shivakant Shukla , it was observed that “the writ of Habeas Corpus is a
process for securing the liberty of the subject by affording an effective means of immediate relief
from unlawful or unjustifiable detention whether in prison or private custody. If there is no legal
justification for that detention, then the party is ordered to be released.”
2. Certorari:
The writ of Certiorari is generally issued against authorities exercising quasi-judicial functions.
The Latin word Certiorari means 'to certify'. Certiorari can be defined as a judicial order of the
supreme court or by the high courts to an inferior court or to any other authority that exercise
judicial, quasi-judicial or administrative functions, to transmit to the court the records of
proceedings pending with them for scrutiny and to decide the legality and validity of the order
passed by them. Through this writ, the court quashes or declares invalid a decision taken by the
concerned authority. Though it was meant as a supervisory jurisdiction over inferior courts
originally, these remedy is extended to all authorities who issue similar functions.
The concept of natural justice and the requirement of fairness in actions, the scope of certiorari
have been extended even to administrative decisions. An instance showing the certiorari powers
was exercised by the Hon’ble Supreme court in A.K.Kraipak v. Union of India, where the
selection was challenged on the ground of bias. The Supreme Court delineated the distinction
between quasi judicial and administrative authority. The Supreme Court exercising the powers
issued the writ of Certiorari for quashing the action. Certiorari is corrective in nature. This writ
can be issued to any constitutional, statutory or non statutory body or any person who exercise
powers affecting the rights of citizens.
3. Prohibition:
The grounds for issuing the writs of certiorari and prohibition are generally the same. They have
many common features too. The writ of prohibition is a judicial order issued to a constitutional,
statutory or non statutory body or person if it exceeds its jurisdiction or it tries to exercise a
jurisdiction not vested upon them. It is a general remedy for the control of judicial, quasi judicial
and administrative decisions affecting the rights of persons.
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.
4. Mandamus:
The writ of mandamus is a judicial remedy in the form of an order from the supreme court or
high courts to any inferior court, government or any other public authority to carry out a 'public
duty' entrusted upon them either by statute or by common law or to refrain from doing a specific
act which that authority is bound to refrain from doing under the law. For the grant of the writ of
mandamus there must be a public duty. The superior courts command an authority to perform a
public duty or to non perform an act which is against the law. The word meaning in Latin is 'we
command'. The writ of mandamus is issued to any authority which enjoys judicial, quasi judicial
or administrative power.
The main objective of this writ is to keep the public authorities within the purview of their
jurisdiction while performing public duties. The writ of mandamus can be issued if the public
authority vested with power abuses the power or acts mala fide to it. In Halsbury’s Laws of
England , it is mentioned that, “As a general rule the order will not be granted unless the party
complained of has known what it was required to do, so that he had the means of considering
whether or not he should comply, and it must be shown by evidence that there was a distinct
demand of that which the party seeking the mandamus desires to enforce and that that demand
was met by a refusal.”
5. Quo Warranto:
The word meaning of 'Quo warranto' is 'by what authority'. It is a judicial order against a person
who occupies a substantive public office without any legal authority. The person is asked to
show by what authority he occupies the position or office. This writ is meant to oust persons,
who are not legally qualified, fro substantive public posts. The writ of Quo warranto is to
confirm the right of citizens to hold public offices. In this writ the court or the judiciary reviews
the action of the executive with regard to appointments made against statutory provisions, to
public offices .It also aims to protect those persons who are deprived of their right to hold a
public-office.
In University of Mysore v. Govinda Rao,12 the Supreme Court observed that the procedure of
Quo Warranto confers the jurisdiction and authority on the judiciary to control executive action
in making the appointments to public offices against the relevant statutory provisions; it also
protects a citizen being deprived of public office to which he may have a right.
~ The Development of the Remedies in India:
As the India have taken Prerogative Remedies basics from the English age old tradition, but apart
from that, these remedies has been developed in parallel in India by the arrangements of Indian
Constitution and through the Judgments, decisions, orders, by- laws passed by the Judges should
not be underestimated.
The true strength of the remedies in India is that they take their foundation from English law but
not through the historical issues that has arisen in their development. The genious work done by
the Dr. B.R. Ambedkar and his colleagues in the drafting was to isolate the salient features of the
prerogative remedies and to simplify their application.
It was observed in the Case of Dwarka Nath v. ITO1, that “ex facie, these prerogative remedies
it confers wide powers on High Courts to reach injustice where ever it is found.”
And the similar point was recognized by the judges with the judgement of Mukherjea J.in
Basappa confirming that:
“In view of the express provision in our constitution we need not now look back to the earky
history or the procedural technicalities of these writes in English law, nor feel oppressed by any
difference or change of opinion expressed in particular case by English Judges. We can make an
order or issue a writ in the nature of certiorari in all appropriate cases in appropriate manner, so
long as we keep the fundamental principles that regulate the exercise of jurisdiction in the matter
of granting such writs in English law.”2
It was further cleared by the case of P.J. Irani v. State of Madras, that the power of the High
Court is not only limited to pass the writs of Certiorari, mandamus etc. as they have been
1
AIR 1966 SC 81
2
T.C. Basappa v. T. Nagappa, AIR 1954 SC 440
introduced by the English Law, but the power in general to issue the order, direction, writ for the
same purpose.3
As India as incorporated it’s fundamentals of prerogative remedies from the English law.
According to the English law, Parliament is the Sovereign that means ‘ no executive action
sanctioned by the act passed by the parliament can be questioned or held void by the court and in
addition, the Parliament may also able to remove the jurisdiction of the court over certain
matters. But since the Source from which Judiciary, Executive and legislation receives power is
different in both the countries i.e. in England – the source of power is Parliament whereas in
India – the source of power is derived from the Constitution of India, and the Powrs of
Prerogative Remedies is enshrined in Article 32 and 226 of the Indian Constitution, which
cannot be taken away or modified in any manner short of amendment of the Constitution. The
enshrined status of these writs allows for an altogether more complete protection of fundamental
rights as the remedies are able to resist any immediate change or abrogation by the overzealous
government.
In implementing these remedies in India, there were many confusion and disagreements as to
when rights could be suspended, it was made clear that the “Article 32 provides being guaranteed
as a fundamental right, it cannot be taken away or curtailed by anything short of amendment of
the Constitution.”4
In the cases of Durga Das Basu and A.K. Nandi 5, courts made it clear that “ if any law which
seeks to take away , or restrict the jurisdiction of the High Cort under Ar. 226 must so far be held
to be void and the H.C. shall be entitled to exercise the powers under Ar. 226, free from fetters
imposed, directly or indirectly.”
There are five types of Writs- Habeas Corpus, Certorari, Prohibition Mandamus and Quo
Warranto. Article 32 and 226 of the constitution of India has designed for the enforcement of
3
B.L. Hanara, Writ Jurisdiction under the Constitution ( 1 st ed., 1984)
4
Minerwa Mills v. Union of India, (1980) 3 SCC 625
5
Constitutional Remedies and Writes 18, ( 2nd ed., 1999)
fundamental rights and for a judicial review of administrative actions, in the form of writs. It is a
constitutional remedy available to a person to bring his complaint or grievance against any
administrative action to the notice of the court.
Article 32 and 226 of the constitution of India has designed for the enforcement of fundamental
rights and for a judicial review of administrative actions, in the form of writs. It is a
constitutional remedy available to a person to bring his complaint or grievance against any
administrative action to the notice of the court. Safeguard of fundamental rights and assurance of
natural justice are the most important components of writ jurisdictions.
Writ jurisdiction is exercised by the Supreme Court and the High courts only. This power is
conferred to Supreme Court by article 32 and to high courts by article 226.
•Article 32(1) guarantee a person the right to move the Supreme Court for the enforcement of
fundamental rights guaranteed by part III of the constitution.
•Article 32(2) empowers the Supreme Court to issue direction or orders or writs in the nature of
Habeas Corpus, Certiorari, Prohibition, mandamus and Quo-warranto for the enforcement of
fundamental rights.
•Article 226 empowers the state high courts to issue directions, orders or writs as mentioned
above for the enforcement of fundamental rights and for 'any other purpose'. i.e., High courts can
exercise the power of writs not only for the enforcement of fundamental rights but also for a 'non
FR'
Thus the constitution provides the discretionary remedies on the High Court and the Supreme
Court. In the absence of the provisions of such remedies no one can enforce its rights given.
Thus wherever there is a right there must be a remedy for it. Thus it should satisfy the maxim,
‘ubi jus ibi remedium.’ One of the principle makers of the constitution, Dr. Ambedkar has given
the prime importance to Article 32 among all other articles from the Indian Constitution. He has
referred that, “It is the very soul of the Constitution and the very heart of it, “It is the very soul of
the Constitution and the very heart of it .”
In Devilal v. STO , it has been marked that, “There can be no doubt that the Fundamental
Rights, guaranteed to the citizens are a significant feature of our Constitution and the High
Courts under Article 226 are bound to protect these Fundamental Rights.”
In Daryao v. State of U.P. , it was held that the right to obtain a writ must equally be a fundame
ntal right when a petitioner presents the case. Thus, it cannot merely be considered as an
individual’s right to move the Supreme Court but it is also the duty and responsibility of the
Supreme Court to protect the fundamental rights.
The Indian drafters made it clear that the inherent problems with the prerogative remedies when
drafting and when implementing it should be flexible in nature. In the case of Basappa, Justice
Mukherjea observed that “it was open to the courts to issue any appropriate writ to aggrieved
party, and his application for a writ would not fail because he had applied for the wrong kind of
writ. The writs were grouped under the general head of ‘judicial review’ and as a result of this
change the application would not fail on any of the technical preliminary grounds available under
the common law prerogative remedies.”
And the drafters introduced a permission requirement so that the court must consider that the
applicant has ‘ sufficient interest’. If we look at it in a restrict manner, “a liberal interpretation of
this idea has allowed the courts to widen rules relating to locus standi and therefore increase the
scope of protection of Fundamental rights. Indian courts have increased the Flexibility by giving
powers to High Courts to modify the form and incidents of prerogative writs in order to get
appropriate relief to the parties whereas in England, the Superior courts have no power to modify
the prerogative remedies.”
The Courts have constantly tried to protect the liberties of the people and assume powers under
the Constitution for judicial review of administrative actions. The discretionary powers have to
be curbed, if they are misused or abused, it is the essence of justice. The socio- politics
instrument need not cry, if the courts do justice and perform the substantial role. That is the
essence of justice. The welfare state has to discharge its duty fairly without any arbitrary and
discriminatory treatment of the people in the country. If such powers come to the notice of the
Courts, the courts have raised the arms consistently with the Rule Of Law. Today, the
Government is the provider of social services, new form of poverty like jobs, quotas, licences
etc. The dispenser of special services cannot therefore act arbitrarily. Courts laid the standard of
reasonableness in Government act
Now as far as the role of the writs is concerned, let us go by illustration over the cases on
discretion. Conferment of discretionary powers 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 to
provide for discretionary powers that are subject to judicial review. The rider is that the Donnie
of 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 have retained
their jurisdiction to test the Statute on the ground of reasonableness. Mostly, the courts review on
two counts; firstly whether the statute is substantively valid piece of legislation and, secondly
whether the statute provides procedural safeguards. If these two tests are not found, the law is
declared ultra vires and void of 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 duty of the
Executive Government to regulate the powers within limitations prescribed to achieve the object
of the Statute. The discretionary powers entrusted to the different executives of the Government
play substantial role in administrative decision making and immediately the settled principles of
administrative law trap the exercise of powers. If these discretionary powers are not properly
exercised, or there is abuse and misuse of powers by the executives or they take into account
irrelevant consideration for that they are not entitled to take or simply misdirect them in applying
the proper provision of law, the discretionary exercise of powers is void. Judicial review is
excluded when it is found that executives maintain the standard of reasonableness in their
decisions. Errors are often crept in either because they would maintain pure administrative spirit
as opposed to judicial flavour 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 have to reach their decisions by taking into account relevant considerations.
They should not refuse to consider relevant matter nor should they take into account
considerations that are wholly irrelevant or extraneous. They should not misdirect themselves on
a point of law. Only such a decision will be lawful. The courts have power to see that the
Executive acts lawfully. They cannot avoid scrutiny by courts by failing to give reasons. If they
give reasons and they are not good reasons, the court can direct them to reconsider the matter in
the light of relevant matters though the propriety adequacy or satisfactory character of these
reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to
exercise their powers they should state their reasons and all the relevant facts.”
The role of writs is also sensibly laid down in a famous Padfield’s Case. In England in earlier
days the Courts usually refused to interfere where the Government or the concerned officer
passed what was called a non-speaking order, that is, an order which on the face of it did not
specify the reasons for the orders. Where a speaking order was passed the Courts proceeded to
consider whether the reasons given for the order or decision were relevant reasons. Where there
was a non-speaking order they used to say that it was like the face of the Sphinx in the sense that
it was incurable and therefore hold that they could not consider the question of the validity of the
order. Even in England the Courts have travelled very far since those days.
Conclusion:
The prerogative powers of writ jurisdiction conferred by the constitution for judicial review of
administrative action is undoubtedly discretionary and yet unbounded in its limits. The discretion
however should be exercised on sound legal principles. In this respect it is important to emphasis
that the absence of arbitrary power is the first essential of the rule of law upon which the whole
constitution system is based. 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 means that the discretion or the decision must be based on some principles and
rules. In general the decision should be predictable and citizens should know where he is. If a
decision is taken not on the basis of any principle then such decision is arbitrary, in such Rule of
law.
The Constitution is the law of the laws and nobody is supreme. Even the judges of Supreme
Court are not above law and they are bound by the decisions which are the law of the land
declared by them under the writ petitions. Thus, the constitutional remedies provided under the
constitution operate as a check and keeps the administration of government within the bounds of
law. In our country the judiciary or law is supreme. Writ jurisdictions are judicial reviews of
administrative actions. Judiciaries always stand to ensure that all administrative actions are
confined to the limits of the law .Thus, the writ jurisdictions act as judicial restraints of policy
decisions which are unreasonable, unfair and against public interest.
In fact we can say that today India’s position is better than that of England regarding Writ
Jurisdiction. As the Indian drafters has made our system more flexible so that it not only provide
legal aids but also making it as Fundamental right. For Example, in India, a writ or order in the
nature of mandamus is available to restrain the State or a public official from enforcing an Act
on the ground that it is unconstitutional, crucial protection affords only occur due to the
interpretation of Article 13. And other than these also, the activism of Indian Judges in relation to
the interpretation and application of the Articles has meant an even wider protection of rights
than may be even the drafters has thought of.
Bibliography –
1. http://oxfordindex.oup.com