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Role of Writs In Administrative Law

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 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.

Author Name:   Shrimali Mahima

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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 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.

Role of Writs In Administrative Law

 

Concept of Writs In India

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 basically an
administrative state. So my article deals with the Concept of Writs, It’s Background and also It’s Role
In Administrative Action.

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Introduction-
The first question arise in our mind while reading the topic is.. Actually, 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

Birth 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.

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.

Principles of Exercise Writs Jurisdiction

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-
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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.
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Constitutional Provisions

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
fundamental right'

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 fundamental 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.

Role of Writs In Administration Law-

The administrative law is that branch of law that keeps the government actions within the bounds of
law or to put in negatively, it present the enforcement of blatantly bad orders from being derogatory.
Administrative law has greatly demarcated the checks, balance and permissible area of an exercise of
power, authority and jurisdiction over administrative actions enforced by any State, Government
agencies and instrumentalities defined under Article 12 of the Constitution of India. And the judiciary
is dynamically carving the principles and exceptions, while making the judicial review of
administrative action.

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

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 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
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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 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 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. They no
longer find the face of the Sphinx inscrutable.

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 or rules then such decision is arbitrary and is taken not in
accordance with the 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
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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.

ISBN No: 978-81-928510-1-3

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Author Bio:   Student of Government Law College, Mumbai.

Email:   shrimalimahima1@gmail.com Website:   http://www.legalserviceindia.com

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