You are on page 1of 28

1

OBTAINING JUDICIAL REVIEW



SUBMITTED TO: Dr. ALI MOHAMMAD
(FACULTY FOR ADMINISTRATIVE LAW)

SUBMITTED BY:
SHRADHA SHARMA
3
RD
YEAR, 6
TH
SEMESTER
ROLL NO. 359

2


ACKNOWLEDGEMENT
Before starting this project I would like to thank my faculty, Dr. Ali Mohammad for
giving me such a wonderful topic to work on. The topic was really challenging and I
was very interested in doing this project. I would also like to thank University librarys
librarian who constantly guided in choosing the appropriate books for reference and also
my friends and guardians.
Thanking You,
Shradha Sharma








3


RESEARCH METHODOLOGY
(1) Aim and Objective
The aim of the project is to study and analyze the laws relating to Obtaining Judicial Review.
(2) Scope and Limitation
The scope of the project extends to study of Obtaining Judicial Review. I tried to explain the
present day position of laws in this context while discussing the various provisions of law
regarding the same. The project is based on doctrinal method of research as field work on this
topic is quite impossible. I have mainly used the textbooks relating to the subject and the bare
act. Moreover internet is used to obtain web articles and write ups and bare acts. Due to lack of
expertise and time constraints, I had to use secondary sources to do the research work which is
the limitation of this project.
(4) Chapterisation
I have divided the project into various chapters each dealing with different aspects of the topic.
In the initial chapters, I have discussed elaborately, the meaning of judicial review. Further, I
have the analysis of obtaining judicial review.
(5) Sources of Data
Books
Journals
(6) Method of Writing
The method of writing followed in this project is both analytical and descriptive.
(7) Mode of Citation
Uniform mode of citation has been followed hinting at the Harvard Law Schools Bluebook for
this project.
4

CONTENTS

1) INTRODUCTION.......................................................................................................................5
2) JUDICIAL REVIEW OF LEGISLATIVE ACTS.6
3)JUDICIAL REVIEW OF PRIMARY LEGISLATION.7
4)GROUNDS OF JUDICIAL REVIEW.8
5)APPROACH OF ADMINISTRATIVE COURTS.9
6)LEADING CASES ON LOCUS STANDI10
7)JUDICIAL REVIEW AND APPEALS11-14
8)POWERS OF THE SUPREME COURT...15
5)ARTICLE 136 SPECIAL POWER OF JUDICIAL REVIEW..16
6)POWERS OF THE HIGH COURT..17-18
7)REMEDIES OF JUDICIAL REVIEW....19-25
8)DIRECTIONS AND ORDERS 26
9)CONCLUSION..27
10)BIBLOGRAPHY......28

5

INTRODUCTION
Judicial review is the doctrine under which legislative and executive actions are subject to review
(and possible invalidation) by the judiciary. Specific courts with judicial review power must
annul the acts of the state when it finds them incompatible with a higher authority (such as the
terms of a written constitution). Judicial review is an example of the separation of powers in a
modern governmental system (where the judiciary is one of three branches of government). This
principle is interpreted differently in different jurisdictions, which also have differing views on
the different hierarchy of governmental norms. As a result, the procedure and scope of judicial
review differs from country to country and state to state.
There has been tremendous expansion in the administrative process. Expansion in the
administrative power is a consequence of the concept of welfare state. All legal power, according
to H.W.R. Wade, 'as opposed to duty, is inevitably discretionary to a greater or lesser extent'
Therefore, in order to maintain rule of law it is absolutely necessary to control this discretionary
element in the administrative power. Justice Douglas of the U.S. Supreme Court has rightly
remarked that it is the majesty of the administrative law that it has been able to control absolute
discretion on the part of the government or any ruler or official because absolute discretion is a
ruthless master. It is more destructive of freedom than any of man's inventions.
Therefore, the judicial control over the administrative action becomes imperative. There are two
types of remedies against the administrative wrongs private law remedy of suit and judicial
review through writs. Civil law remedy is not effective against the administration. It is the public
law remedy of judicial review through writs which is very effective and expeditious, though it is
costly as only High Courts and the Supreme Court have the power to issue these writs.
The power of judicial review is a supervisory power and not a normal appellate power against
the decisions of administrative authorities. The recurring theme of the apex court's decision
relating to nature and scope of judicial review is that it is limited to consideration of legality of
decision making process and not legality of order per se. That mere possibility of another view
cannot be a ground of interference.
6

JUDICIAL REVIEW OF ADMINISTRATIVE ACTS

Judicial review of administration is, in a sense, the heart of administrative law. It is certainly the
most appropriate method of inquiring into the legal competence of a public authority. The
aspects of an official decision or an administrative act that may be scrutinized by the judicial
process are the competence of the public authority, the extent of a public authoritys legal
powers, the adequacy and fairness of the procedure, the evidence considered in arriving at the
administrative decision and the motives underlying it, and the nature and scope of the
discretionary power.
Most modern legal systems allow the courts to review administrative acts (individual decisions
of a public body, such as a decision to grant a subsidy or to withdraw a residence permit). In
most systems, this also includes review of secondary legislation (legally-enforceable rules of
general applicability adopted by administrative bodies). Some countries (notably France and
Germany) have implemented a system of administrative courts which are charged with resolving
disputes between members of the public and the administration. In other countries (including the
United States, United Kingdom and the Netherlands), judicial review is carried out by regular
civil courts although it may be delegated to specialized panels within these courts (such as the
Administrative Court within the High Court of England and Wales). The United States employs
a mixed system in which some administrative decisions are reviewed by the United States district
courts (which are the general trial courts), some are reviewed directly by the United States courts
of appeals and others are reviewed by specialized tribunals such as the United States Court of
Appeals for Veterans Claims (which, despite its name, is not technically part of the federal
judicial branch). It is quite common that before a request for judicial review of an administrative
act is filed with a court, certain preliminary conditions (such as a complaint to the authority
itself) must be fulfilled. In most countries, the courts apply special procedures in administrative
cases


7

JUDICIAL REVIEW OF PRIMARY LEGISLATION

There are three broad approaches to judicial review of the constitutionality of primary
legislationthat is, laws passed directly by an elected legislature. Some countries do not permit
a review of the validity of primary legislation. In the United Kingdom, statutes cannot be set
aside under the doctrine of parliamentary sovereignty. Another example is the Netherlands,
where the constitution expressly forbids the courts to rule on the question of constitutionality of
primary legislation.
1

In the United States, federal and state courts (at all levels, both appellate and trial) are able to
review and declare the "constitutionality", or agreement with the Constitution (or lack thereof) of
legislation that is relevant to any case properly within their jurisdiction. In American legal
language, "judicial review" refers primarily to the adjudication of constitutionality of statutes,
especially by the Supreme Court of the United States. This is commonly held to have been
established in the case of Marbury v. Madison
2
, which was argued before the Supreme Court in
1803. A number of other countries whose constitutions provide for a review of the compatibility
of primary legislation with the constitution have established special constitutional courts with
authority to deal with this issue. In these systems, other courts are not competent to question the
constitutionality of primary legislation.
Brazil adopts a mixed model since (as in the US) courts at all levels, both federal and state, are
empowered to review primary legislation and declare its constitutionality; as in Germany, there
is a constitutional court in charge of reviewing the constitutionality of primary legislation. The
difference is that in the first case, the decision about the laws adequacy to the Brazilian
Constitution only binds the parties to the lawsuit; in the second, the Court's decision must be
followed by judges and government officials at all levels.


1
Article 120 of the Netherlands Constitution
2
Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803)
8

GROUNDS OF JUDICIAL REVIEW
Public law is not at base about rights, even though abuses of power may and often do invade
private rights; it is about wrongs that is to say misuses of public power.
3


The ultimate (though not necessarily the most appropriate) means by which public law disputes
are resolved is by bringing the matter before the Administrative Court using a claim for judicial
review. Broadly, in order to succeed, the claimant (the person or body bringing the case) will
need to show that either:
the person or body is under a legal duty to act or make a decision in a certain way and is
unlawfully refusing or failing to do so; or
a decision or action that has been taken is beyond the powers (in Latin, ultra vires) of
the person or body responsible for it. Only then, will a public law wrong have occurred.
Generally, it does not matter if the judge, faced with the same decision, would have
decided the merits of the case differently. This reflects the fact that judicial review
involves supervision of administrative decision making did the public body act in a
lawful manner in deciding the way that it did. There are three categories of public law
wrongs which are commonly used and which will be considered in turn:

Illegality;

Fairness; and

Irrationality and proportionality.


3
(Sedley J in R v Somerset CC ex parte Dixon [COD] 1997 323, QBD).

9

THE APPROACH OF ADMINISTRATIVE COURT

The approach of the courts to public law disputes, and the development of special procedures for
handling judicial review claims have a number of important practical consequences. For
example:
there are special protections in the procedure intended to ensure administrative decision
making is not paralysed by the prospect of claims, or the way they are pursued. These are
manifested in the time limit rules, and in the requirement to seek permission;

judicial review claims proceed, as far as possible, on the basis of agreed facts. The rules
do
not easily accommodate cases where the facts are in dispute (orders for disclosure are rare,
oral evidence rarer);

both parties are expected to co-operate with the court, and take a candid, cards on the
table approach to the litigation;
the court will sometimes act proactively, bringing issues into play which have not been
raised by either party;
depending on the nature of the decision being challenged, there may be a degree of
deference to the decision maker, given her/his democratic mandate, or special expertise;
the court has a discretion to refuse permission for judicial review, or a remedy, even
when
a public law wrong has been committed; and

decisions will often be remitted back to the decision maker with guidance from the
court,rather than quashed.


10


LEADING CASES ON LOCUS STANDI
In R v Inland Revenue Commissioners,
4
it was held that if a person does not have locus standi he
must use a different procedure called the relator action. This is an action brought by the
Attorney-General 'on the relation' (at the instance) of some other person. The Attorney-General
represents the public interest. The costs must be paid by the relator.
The Law Commission (No 226, 1994) recommended that if the applicant for judicial review was
not directly affected by the decision under review, the court should have discretion to decide
whether it was in the public interest for the application to be heard.








4
R v Inland Revenue Commissioners ex parte NFSSB (1982), R v Secretary of State, ex parte EOC (1994)

11

JUDICIAL REVIEW- A COMPARITIVE
ANALYSIS
WITH APPEALS
The purposes served by allowing an appeal of a local land use or environmental decision are
viewed differently by different interests. This has led to different views of the appropriate
appellate procedure and the standards that should apply during administrative and judicial
review. The basic issue to be resolved on appeal is whether the decision maker has followed the
law. For some, this is largely a procedural question that does not involve an examination of the
substance of the decision. For others, the question of whether the law was followed also requires
an examination of whether the decision is consistent with state policy, as established by the
Legislature and agency rules.
Washington's land use and environmental system provides a variety of appeal procedures and
review bodies. The procedure that applies to the appeal of land use and environmental decisions
depends on the subject matter of the decision as well as the decision maker. In some instances, a
decision can result in parallel appeals being heard by two different appellate bodies.
BACKGROUND
Decisions implementing state land use and environmental laws are subject to a variety of review
mechanisms. Most local government land use decisions are appealable to superior court under
the Land Use Petition Act. This legislation was adopted in 1995 and combined the different
appeal procedures applicable to permits into a single statute and eliminated common law
procedures as the chief review mechanism. State agency actions are generally subject to judicial
review by superior court under the Administrative Procedures Act, RCW Chapter 34.05.
Under some circumstances, prior to judicial review, a quasi-judicial state board may have review
authority over the actions of a state agency or a local government. There are five separate quasi-
judicial boards with authority to review land use and environmental decisions of state agencies
12

and local governments. Decisions of the quasi-judicial appeals boards may be appealed to
superior court, or in appropriate circumstances, to the Court of Appeals.
In some appeals of a local government decision on a project permit application, there is the
potential that two different appeal bodies will have jurisdiction over different aspects of the
project. The appeal of a project constructed within the shorelines that requires a shoreline
substantial development could potentially be appealed to both the Shoreline Hearings Board and
superior court. As a result, the parties may be required to present similar testimony and evidence
in both forums. The SHB decision, once made, may also be appealed to superior court.
There are also differences in the appeal procedures depending on the forum. Superior court
review is usually based on the record created by the local government or state agency. Under the
SMA, the appeal of a shoreline substantial permit is heard de novo by the SHB. This means the
SHB conducts fact-finding hearings and bases its decision on the record it creates rather than the
record before the local government.
The standard of review on appeal varies depending on the nature of the issue. The APA provides
that a state agency decision will be upheld unless the agency acted in an arbitrary or capricious
manner. Most local government land use decisions are appealed pursuant to the Land Use
Petition Act (LUPA) which provides for a substantial evidence standard. Under the GMA, a local
government's decisions relating to its comprehensive plan and development regulations are
presumed valid upon adoption and must be upheld unless the GMHB determines the local
government's actions were clearly erroneous.
Another difference among the different boards is the types of actions over which they have
jurisdiction. The Growth Management Hearings Boards only have jurisdiction to review
legislative decisions of local governments. They cannot review individual project permit
decisions. The Shoreline Hearings Board has authority over both legislative actions and permit
decisions. In addition to shoreline permits, it hears appeals of shoreline master programs for non-
GMA jurisdictions and of Ecology's rules implementing the SMA.
13

The Pollution Control Hearings Board's jurisdiction is largely limited to review of Ecology
actions in adopting rules, issuing permits, or imposing penalties or other sanctions. It does have
authority to hear appeals of penalties imposed by the regional air pollution control authorities.
Most of the quasi-judicial boards are required to have members who are representative of the
different political parties and who have expertise in the subject matter. Board members are not
generally required to be attorneys, although most boards are required to have at least one
attorney member.
The boards generally do not have authority to review constitutional issues.
In 1997, the Legislature changed some of the procedural standards that apply to Growth
Management Hearing Board review of city and county GMA decisions. The changes were
intended in part to give local government decisions greater weight on an appeal before the
GMHBs.
DISCUSSION
The role of quasi-judicial boards in Washington's land use and environmental system has
received considerable attention in the last few years. Quasi-judicial boards are created for a
variety of reasons. Their proceedings are often less formal and more accessible to those not
represented by attorneys. The boards can provide level of land use or environmental expertise
that some believe is more difficult to achieve in the judicial system. A quasi-judicial system also
can provide some degree of state-wide consistency. An another advantage that proponents of
quasi-judicial review see is that it brings the perspective of non-lawyers into the review process.
A common objection to the quasi-judicial boards is that they place appointed state officials in the
position of reviewing, and in some cases overturning, decisions of locally elected officials.
Under the GMA process, this is thought to undermine one of the principle elements of the GMA,
which is the local control it gives to counties and cities. There are also objections raised that the
quasi-judicial boards substitute their judgment for that of the local legislative body, rather than
limit their review to legal issues. An appeal to court is felt to be preferable because the judges are
directly accountable to the public through the election process. Courts are thought to be more
14

experienced in applying the law and more familiar with separation of powers issues. There is
also a concern that the quasi-judicial process is often an extra step in the review process that only
adds time and cost.
The review procedure for shoreline substantial development permits presents an additional issue.
Shoreline permits are heard de novo by the SHB. Local governments and developers frequently
believe that this procedure causes unnecessary delay and allows opponents to withhold
information and objections until the SHB hearing, rather than presenting all of the information at
the local government hearing. They also point out that the process can result in two different
review proceedings on the same project, one before the SHB and the other in superior court, with
many of the same issues and evidence before both bodies. The SHB decision is then also
appealable to superior court. Reform advocates question the SHB's cost effectiveness given the
small number of local government permit decisions overturned by the board.
Proponents of the current SHB process believe that the shorelines are a fragile and unique
resource that require special attention and protection. They point out that many local
government's have hearing procedures that do not meet the test of basic due process and fairness.
The environmental community and state agencies point out that there is little evidence that
duplication of proceedings is a serious problem. They note that only a small percentage of
shoreline permits are appealed to the SHB and that only a portion of those permits end up in a
hearing before the board. They also see de novo review as a means to assure that decisions
affecting the shorelines are made based on scientific evidence and that the state-wide interest is
not dismissed in favor of the more limited local interest. State agencies and the tribes also note
that they have limited resources that make it difficult to keep abreast of and participate in every
local permit process involving the shorelines. The tribes also note that with limited resources,
they need to present their case in a forum where they believe they are more likely to receive
procedural due process. The de novo review procedure provides a mechanism to assure that in
those cases where it is necessary, additional evidence can be provided.


15


POWERS OF THE SUPREME COURT

The Power of judicial review is a constitutional power since it is the Constitution which invests
these powers in the Supreme Court and the High Courts in the States. So far the Supreme Court
is concerned the relevant Articles are 32 with Articles 12 and 13 and Article 136. Article 32
empowers the Supreme Court to issue directions, orders or writs (which are specifically
mentioned therein) for the enforcement of fundamental rights. What is unique about Article 32 is
that the right to move the Supreme Court under this Article is itself a Fundamental Right. Thus
the Supreme Court is made guarantor or protector of the fundamental rights. Dr. Ambedkar
called it the soul of the Constitution. The Supreme Court has further expanded the scope of this
Article even in cases where no fundamental right is involved. In Jhumman Singh v. CBI
5
, it was
held that where a person manipulated facts in order to get a decree by a court to defeat the ends
of justice, in such a situation petition was held to be maintainable under Article 32. Though
Article 32 is called cornerstone of the democratic edifice, it becomes inconvenient for the
Supreme Court to entertain petitions under original jurisdiction since it could overload the court.
Therefore, sometimes the Supreme Court suggests that the petitioner should first approach the
High Court under Article 226 before coming to the Supreme Court under Article 32.






5
Jhumman Singh v. CBI , 1995 (3) SCC 420. Also see M.C.Mehta v. Union of India, A.I.R 1987, SC 965
16


ARTICLE 136-A SPECIAL POWER OF JUDICIAL
REVIEW

Under Article 136, the Supreme Court may grant special leave to appeal against any decision of
a Tribunal. What is a Tribunal is not defined, but the Supreme Court has interpreted it in a liberal
way. A tribunal is a body or authority which is vested, with judicial power to adjudicate on
question' of law or fact, affecting the rights of citizens in a judicial manner. Such authorities or
bodies must have been constituted by the state and vested with judicial as distinguished from
administrative or executive functions.
Article 136 does not confer a right of appeal as such but a discretionary power on the Supreme
Court to grant special leave to appeal. The Supreme Court has held that even in cases where
special leave is granted, the discretionary power continues to remain with the court even at the
stage when the appeal comes up for hearing. Generally, the court does not, grant special leave to
appeal, unless it is shown that exceptional and special circumstance exist, that substantial and
grave injustice has been done and the case in question presents sufficient gravity to warrant a
review of the decision appealed against. It confers a very wide discretion on the Supreme Court
to be exercised for satisfying the demands of justice.

In Bharat Coking Coal Co. v. Karam Chand Thapar
6
, the Supreme Court held, Article 136 has
been engrafted by the founding fathers of the Constitution for the purpose of avoiding mischief of
injustice on the wrong assumption of law. The justice delivery system of the country prompts this
court to interfere under Article 136 of the Constitution when the need of the society stands
established and the judgment, if left outstanding, would not only create prejudice but would have
otherwise adverse effect upon the society.


6
Bharat Coking Coal Co. v. Karam Chand Thapar 2003(1)SCC 6.
17


POWERS OF THE HIGH COURT

Article 226 clause (1) empowers the High Courts in the States or Union Territories to issue to
any person or authority including any Government within their territories, directions, orders or
writs for the enforcement of the fundamental rights or for any other purpose.
The power of judicial review of the High Court under Article 226 is wider than that of the
Supreme Court under Article 32 of the Constitution. The expression 'for any other purpose'
enables the High Court to exercise their power of judicial review for the enforcement of ordinary
legal rights which are not fundamental rights. High Court can issue a writ to a person or authority
not only when it is within the territorial jurisdiction of the court but also when it is outside its
jurisdiction provided the cause of action wholly or partly arises within its territorial jurisdiction.
This power of the High Court under Article 226 is concurrent with the power of the Supreme
Court under Article 32 of the Constitution.
Article 227 clause (1) confers the power of 'superintendence over all courts and tribunals
throughout the territories in relation to which it exercises jurisdiction. However, this power does
not extend, like Article 136, over any court or tribunal constituted under any law relating to the
Armed Forces.

This power is in addition to the power conferred upon the High Court under Article 226 which is
of a judicial nature. Is this power of superintendence, administrative or judicial? Under the
Government of India Act, 1935 this power extended only to the courts and was of administrative
nature only. Under the Constitution it is extended to the tribunals and section 224 clause (2) of
the Government Of India Act, 1935, which made it of administrative nature, was not retained in
Article 227. Therefore, the power of superintendence under Article 227 is of an administrative as
well as judicial nature. The parameters of this power are well settled and it is exercised on the
same grounds as the power of judicial review.
18


They are as follows:
(i) It can be exercised even in those cases where no appeal or revision lies to the High Court;

(ii) The power should not ordinarily be exercised if any other remedy is available even if it
involved inconvenience or delay.

(iii) The power is available where there is want or excess of jurisdiction, failure to exercise
jurisdiction violation of principles of natural justice and error of law apparent on the face of the
record;

(iv) In the exercise of this power the High Court does not act as appellate tribunal.

(v) It does not invest the High Court with an unlimited prerogative to interfere in cases where
wrong decisions have been arrived at by judicial or quasi-judicial tribunals on questions of law
or fact. There has to be grave miscarriage of justice or flagrant violation of law calling for
interference.
Tribunal under Article 227 has the same meaning as under Article 136 for the Supreme Court. In
Surya Dev Rai v. Ram Chander Rai
7
, the Supreme Court held that the purpose underlying vesting
of this jurisdiction under Article 227 is paving the path of justice and removing its obstacles
therein.
Thus a very wide discretionary power is provided to the High Courts under articles 226 and 227.
However, it must be exercised according to the principles of judicial review.



7
Surya Dev Rai v. Ram Chander Rai A.I.R 2003 SC 3044; Also see Shiv Shakti Cooperative Housing Society,
Nagpur v. M.S Swaraj Developers A.I.R 2003 SC 2434
19

REMEDIES OF JUDICIAL REVIEW
WRITS

The Supreme Court under Article 32 and the High Courts under Article 226 are vested with the
powers to issue directions, orders or writs in the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari, which ever may be appropriate in the case. A brief explanation of
these remedies is appropriate here.
WRIT OF CERTIORARI

The term of the old writ was that of a royal demand to be informed (certiorari) of some matter,
and in early times it was used for many different purposes. It became a general remedy to bring
up for review in the court of Kings Bench any decision or order of an inferior tribunal or
administrative body. In the modern times the scope of certiorari was laid down in the Electricity
Commissioner's case by Lord Atkin which is classical and approved in many English and Indian
decisions. Lord Atkin said:
Wherever any body of persons having legal authority to determine questions affecting the rights
of subjects and having the duty to act judicially, act in excess of their legal authority, they are
subjected to the controlling jurisdiction of the Kings Bench Division exercised in these writs.
According to the above statement the conditions are
(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.
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
8
etc. This was confirmed by the Privy Council in Nakkuda Ali case
9
.Our courts also

8
Lord Hewert in R. v. Legislative Com 1928 (1) KB 411
20

adopted this interpretation. In England this confusion was cleared by Lord Reid in the landmark
decision of Ridge v. Baldwin
10.
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.
In A.K.Kraipak v. Union of India
11
, 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:

(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.
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
12
,
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.

9
Nakkuda Ali v Jayaratne 1951 AC 66.
10
Ridge v. Baldwin 1964 AC 40.
11
A.K.Kraipak v. Union of India AIR 1970 SC 150
12
Anisminic Ltd. v. Foreign Compensation Commissioner 1969 (2AC) 147.
21

WRIT OF PROHIBITION
In the same manner Electricity Commission case
13
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
14
, 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
15
. 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.




13
Electricity Commissioners 1924 (1KB) 171
14
Hari Vishnu Kamath v. S. Ahmad Ishaque A.I.R 1955 SC 233
15
RV.G.L.C Ex.t.Blackburn 1976 1WLR 550.
22

WRIT OF MANDAMUS
The prerogative remedy of mandamus has long provided the normal means enforcing the
performance of public duties by public authorities of all kinds. While certiorari and prohibition
deal with wrongful action, mandamus deals with wrongful inaction. These prerogative remedies,
thus, together cover the field of governmental powers and duties.
Mandamus is issued only when a legal duty is imposed on a public authority in the performance
of which the petitioner has a legal right
16
. Mandamus would also lie when there is a failure to
perform a mandatory duty. The petitioner must show that he has made a demand to enforce that
duty and the demand was refused.
Mandamus will not lie when the duty is merely discretionary. In State of M.P. v. Mandawara
17
the Supreme Court held that granting of Dearness Allowance is discretionary for the
Government and it cannot be compelled by mandamus to grant the same. However, the court
may issue a writ of mandamus where the public authority has failed to exercise or has wrongfully
exercised discretion conferred on it by a statute or has exercised such discretion mala fide or on
irrelevant considerations.
The writ of mandamus is issued against any court, tribunal or administrative authority. The
Supreme Court has developed a new concept of continuing Mandamus by issuing directions
from time to time and keep the matter pending, requiring the agencies to report the progress of
investigation so that monitoring by the court could ensure continuance of the investigation
18







16
G.B Reddy v. ICR Institute 2003, SC 1764.
17
State of M.P. v. Mandawara A.I.R 1954 SC 93.
18
Vinnet Narayan v. Union of India A.I.R 1998 SC 2684.
23

WRIT OF HABAES CORPUS
It is a process by which a person, who is confined without legal justification may secure a release
from his confinement. The writ is an order issued by the High Court calling upon the person by
whom a prisoner is alleged to be kept in confinement to bring him before the Court to let the
Court know on what ground the prisoner is confined. However, the production of the body of the
person alleged to be unlawfully detained is not essential in modern times
19
.

The rule of standing is relaxed in habeas corpus petition which can be made by any person on
behalf of the prisoners but not an utter stranger. Application for habeas corpus has to be
accompanied by an affidavit stating the nature and circumstances of the restraint. If the court is
satisfied that there is prima facie case, it issues a rule nisi requiring the opposite party to show
cause, on a day specified, why an order granting the writ should not be made. After hearing the
parties, the court may make the rule nisi absolute or it may discharge it as the case may be.
The writ of habeas corpus has assumed great importance in the administrative process as wide
powers of detention are conferred on the administrative authorities in the modern times. The
fundamental right to personal liberty as a human right has further enhanced the importance of
this remedy. The grounds of habeas corpus are the same grounds of judicial review based on
ultra vires doctrine. So if the detention powers are used mala fide or based on irrelevant or
extraneous considerations or are used in violation of statutory provisions, the writ of habeas
corpus will issue to quash such a detention. There is no need for a separate certiorari.
The writ of habeas corpus is issued against any order of detention by any authority including the
Speaker of Parliament or State Assemblies
20
. However, no writ of habeas corpus will lie in
regard to a person who is undergoing imprisonment on a sentence of a court in a criminal trial
even on the ground of erroneousness of conviction.
21


19
Kanu Sanyal v. D.M Darjelling A.I.R 1973 SC 2684.
20
Ganpati v. Masi Nafisul Hasan A.I.R 1954 SC 636.
21
Janardan Reddy v. State of Hyderabad A.I.R 1951 SC 217.
24

Before Constitution (44th Amendment) Act, 1978, enforcement of the writ of habeas Corpus was
liable to be suspended. The Supreme Court in the habeas corpus case
22
held that no person could
have any locus standi to move the court to challenge the legality of an order of his detention on
any grounds. This was challenged on limited grounds before this decision. This was the most
unfortunate decision of the apex court. It utterly failed to protect the life and liberty of the people
when it was most needed. Therefore, by the 44th amendment, now the enforcement of the writ of
habeas corpus cannot be suspended during Emergency under Article 352.
The scope of the writ has been further expanded by the Supreme Court by prohibiting torture or
inhuman treatment while in detention in a prison by the prison authorities. In this respect the law
is more advance in India than prevailing in England where detention conditions cannot be
challenged by habeas corpus.

WRIT OF QUO-WARRANTO

The writ of quo warranto is issued against the holder of a public office calling upon him to show
with what authority he holds that office. It is issued against the usurper of an office.
The object is to confer jurisdiction upon the judiciary to control the executive action in making
appointments to public offices and also to protect the public from usurpers of public offices.
The law of standing is relaxed so that any member of the public can challenge the action by this
writ
.23

The following conditions apply:

(i) The office in question must be a public office.

(ii) The office must be substantive in character.

(iii) The holder must not be legally qualified to hold the office or to remain in the office .

22
ADM Jabalpur v. Shivkant Shukla. 1976 AIR 1207
23
S.N Srivistav v. State of U.P A.I.R 2003 All 259.
25


(iv) The person must be holding the office when the writ is heard.
The writ will not lie in respect of an office of a private nature. The writ is discretionary in nature
and the court may refuse to grant it.
What are the consequences of granting of the writ? Will the actions of usurper become null and
void ab initio? It will depend upon the nature of disqualification. If the disqualification is of
technical nature, the acts will not be null and void and the principle of de facto office will be
applied to save such actions. However, where defect in the qualification is fatal, then everything
done by him will be null and void. The benefit of the colour of office will not be available.










26

DIRECTIONS AND ORDERS

The powers conferred by Articles 32 and 226 are very wide. Supreme Court observed that, In
view of the express provision in our Constitution we need not now look back to the early history
or the procedural technicalities of these writs in English Law, nor feel oppressed by any
difference or change of opinion expressed in particular cases by English Judges., so long as
we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the
matters of granting such writs in English law
24
.
This is the meaning of the wide phraseology 'the writs in the nature of' should be understood.
The courts have been very liberal in this regard. It is the duty of the court to provide appropriate
remedy to the petitioner. A petition will not be thrown out on procedural and technical defects.
However, broad principles must be followed. Apart from these writs, the court can issue any
directions or orders to supplement the writs, for examples, declaratory orders or injunctions in
the same petitions. In fact declaratory orders are the appropriate remedy for setting aside an ultra
vires rule or legislative measure and not the writ of certiorari which is appropriate for quashing a
determination or decision of a body or authority. In Prabodh Verma v. State of U.P., the Supreme
Court deprecated the slipshod drafting of a writ petition asking for certiorari to quash a
legislative measure. Proper pleading rules must be followed since ill-drafted pleading results in
wastage of precious time of the court.
25


The power of issuing directions or orders is frequently used to provide relief to the parties and
monitor the implementation of the decision of the court
26





24
T.C Bassapa v. T. Nagappa A.I.R 1954 SC 440.
25
(1984) 4SCC 251.
26
See B.K Basu v. State of West Bengal A.I.R 1997 SC 610, Vishakha v. State of Rajasthan 1997 SC 3011.
27

CONCLUSION
The objective of the judicial review is to enforce the rule of law which is the basis of
constitutional and administrative law. The power of judicial review in India is rooted in the
Constitution. This is expressly conferred on the Supreme Court and the High Courts under
Articles 32,136 and 226,227 respectively.
The power of judicial review is exercised through writs. The five writs are specifically
mentioned in Articles 32 and 226. Our courts are not bound by the technicalities of the English
practice; only broad principles should be observed in their application. The scope of these writs
has expanded in recent times. It is now available in administrative actions also.
The courts can supplement these writs with any other orders and directions depending upon the
facts and circumstances of the case. For example, it can grant injunction or stay order or
declaration in suitable cases.













28

BIBLOGRAPHY
BOOKS
Administrative Law , I.P. Massey, seventh edition, Eastern Book Company
Lectures on Administrative Law , fourth edition, C.K.Takwani, Eastern Book Company
Administrative Law, seventh edition, S.P. Sathe , Lexis Nexis Butterworths
Principles of Administrative Law, M.P. Jain & S N Jain , seventh edition , by Dr. Shakil
Ahmad Khan and The Publishers Editorial Board, Lexis Nexis Butterworths Wadhwa,
Nagpur
Durga Das Basu, Administrative Law, Kamal Law House, Kolkata
WEBSITES
http://www.lawcollegedehradun.com/lawreview/vol2_issue1_nov10/article3.html
lawcommissionofindia.nic.in/51-100/Report92.pdf
www.du.ac.in/fileadmin/DU/.../administrative-discretion-tr3.pdf
www.supremecourtofindia.nic.in/.../judicial_review_of_administrativ...
faizlawjournal.blogspot.com/.../judicial-review-on-administrative.htm...
articles.economictimes.indiatimes.com Collections
www.mondaq.com/article.asp?articleid=20649
www.ncbi.nlm.nih.gov ... J Natl Med Assoc v.90(12); Dec 1998
www.publiclawproject.org.uk/downloads/GuideToJRProc.pdf
www.pacode.com/secure/data/210/chapter15/s1511.html
www.law.upenn.edu/.../the-need-for-a-judicial-check-on-regulatory-...
http://www.commerce.wa.gov/landuse/report/chapter11.html