Administrative Discretion and Remedies

Meaning and Definition of Administrative Discretion
Administrative Discretion is defined as the discretion given to the administrative authorities to

carry out its daily functions and take decisions on the issues it encounters which have not been
addressed by the legislation and the authorities have to take the decision themselves. But the
discretion shall be given with a system to keep a check by way of Judicial Review otherwise
there is a chance of misuse.
We have come far from the concept of laissez faire to social welfare where the laws are made
for the welfare of the people and the governments continuously work to achieve this. In a
democratic country like India, the law-making power lies with the elected representatives
called the Parliament, but executing the laws passed by the Parliament is the responsibility of
the Executive. To ensure that the Executive is able to perform its duties, some additional
powers have to be conferred upon the Executive as not every decision can be taken by the
Parliament.
Administrative Discretion in literal sense means the discretion which is used by the
administration to carry out the functions. Discretion is the power to do something according to
will. An individual taking any decision with respect to his life and property is a part of his
discretion. Administrative Discretion though on the similar lines is different from the individual
discretion as the authority is expected to take its decision with proper application of mind and
with acceptable justification.
Lord Cock as rightly said, “Discretion is a science to understand the difference between truth
& untruth, right & wrong and reasonable & unreasonable. They must not do their work under
the influence of personal interest and to fulfill own will”.
The definition of Administrative discretion is offered by many but there only few which are
worth mentioning. Prof. Freund [3] said that:
“When we speak of administrative discretion, we mean that a determination must be reached,

in part at least, upon the basis of consideration not entirely susceptible of proof or disproof…
It may be practically convenient to say that discretion includes the case in which the
ascertainment of fact is legitimately left to administrative determination.”
In black law’s dictionary , administrative discretion would be a public official’s or agency’s

power to exercise judgment in the discharge of its duties.
According to another thinker, Coke, discretion would be “…a science or understanding to
discern between falsity and truth, between right and wrong, between shadows and substance,
between equity and colorable glosses and pretences, and not to do according to their will and
private affection.”
In Oxford Dictionary of law, administrative powers have been defined as “the discretionary
powers of an executive nature that are conferred by the legislature on government, ministers,
public and local authorities and other bodies and persons for the purpose of giving detailed
effect to the policy intended by the legislature itself.”
Discretionary powers bestowed on the administrative authorities are of a vast range. Their
power serve the purpose of simple ministerial tasks like maintenance of birth and death register
as well as those which seriously affect the rights of an individual, e.g. acquisition of property,
regulation of trade, industry or business, inquiry, seizer, confiscation and destruction of
property, detention of a person on subjective satisfaction of an executive authority and many
more. The list of their functions is exhaustive in nature.
Basically, administrative discretion is provided to the executive using which they drive the
process of governance smoothly in the country. In short, the purpose of the discretion is to
serve the country’s citizens’ in the best possible way.
THE NEED OF ADMINISTRATIVE DISCRETION
The act of the legislature to grant discretionary power to the Executive is clearly based upon
the reliance placed upon the power of judgment of that authority. The legislature thus directly
eliminates a direct attack on the exercise of the discretionary power unless a right of appeal to
the courts is expressly provided by the legislature. But the absence of such provision, one that
provides for appeal does not mean the immunization of the exercise of discretion from judicial
review. In the words of Prof. H. W.R. Wade,
“If the state is to care for its citizens from the cradle to the grave, to protect their environment,
to educate them at all stages, to provide them with employment, training, houses, medical
services, pensions and in the last resort food, clothing and shelter, it needs a huge administrative
apparatus. Relatively little can be done by merely passing Acts of Parliament and leaving it to
the courts to enforce them. There are far too many problems of detail and far too many matters
which cannot be decided in advance. No one may erect a building without planning permission,
but no system of general rules can prescribe for every case. There must be discretionary
power.”
Development of Administration
As already discussed, the discretion given to the administration is inevitable. The day to day
functioning of the government involves a number of decisions that need to be taken
immediately and prior consent of the elected representatives is not feasible. There are a number
of reasons for the development of administrative discretion:
 Every problem or difficulty that is faced by the administration is generally one of a kind
and a general thumb rule of solving the issues cannot be applied to every issue and thus
leads to the need of increased discretion with the administration. This ensures flexibility
in the working of the administration.
 Sometimes the problems faced by the administration is such that the law-makers are
not capable to anticipate the needs as they lack technical knowledge and expert advice
which is required for administration.
 The legislature works in a certain matter which lays down the basic structure and leaves
some empty spaces to be filled by the discretion of the administration keeping in view
the practical aspects. This discretion is necessary to protect the interests & rights of the
people but at the same time it does make the administration responsible for the actions
that it takes.
Control of Administrative Discretion
There are three main heads under which the control over administrative discretion exercised.
1. Parliamentary Control over administrative discretion
2. Judicial Control over administrative discretion
3. Procedural and Executive Control
PARLIAMENTARY CONTROL OVER ADMINISTRATIVE DISCRETION
There are several grounds of parliamentary control.
1. Direct General Control – The first form of parliamentary control shall be exercised at the
time the enabling act is passed. This is Parliamentary hearings that are of a general and direct
control sort. In India, different methods and procedures are used, such as discussions on the
delegation bill, which include aspects such as requirement, scope, form of delegation and
authority delegated to. In addition, any Member can.ask questions on any aspect of the
delegation of legislative powers and, if disappointed, may give notice of discussion under Rule
59 of the Rules of Procedure and Conduct of Business in Lok Sabha. Budget cuts during grant
voting and committee debates throughna private member’s Bill requesting changes to the
parent act or through a debate at the time of the President’s speech to.the joint parliamentary
session are also useful. Yet in India as well as in the UK. Those methods are seldom employed.
This is due solely to a lack of tradition or experience. However, scholars think that this
approach should be used widely and efficiently to nip delegation vices in the bud.
2. Direct Special Control – Prominent among these remedies is the “laying on the table”
method, which demands that administrative “laws” rendered under delegated authority be
submitted for approval to the legislature. Under direct control, laying is an important and
necessary feature, and it is laid down in compliance with the law, which ensures that it should
be put before Parliament after making the regulation. It contains three important parts to be
exercised according to.the degree of control required.
 Simple Laying
 Negative Laying
 Affirmative Laying
And two key tests are “Mandatory test” & “Directory test.”
i. Mandatory testing – Where laying demand is a condition pattern to direct the rule into
effect, then laying need is compulsory in such ancase. Where the clause that the rules should
be drafted in a particular format is specified then it becomes mandatory to adopt the format.
ii. Directory test – If the laying prerequisite is next to enforce the rule, it will be a directory in
nature.
3. Indirect control – This is a power every Parliament and its committees exercise.
Subordinate legislation is another term for such form of committee. The committee’s principal
job is to investigate.
 Whether rule are according to general object of the act.

 It bars the jurisdiction of the court in direct or indirect ways.
 Whether it has retrospective effect or not.
 Whether it safeguard or destroy the Principle of Natural Justice.
 Expenditure involved in it is from Consolidated fund.
In the case of Narendra Kumar v. Union of India, it was held by the Supreme Court that the
provision under Section 3(5) of the Essential Commodities Act, 1955, which explains that any
rules framed under the Act must be presented before both the houses of the Parliament.
Therefore, clause 4 of Non – Ferrous Control Orders, 1958 has no effect until it is presented in
the Parliament.
JUDICIAL CONTROL OVER ADMINISTRATIVE DISCRETION
The rule of law has been applied to judicial review. The court must see that the delegated
authority as defined is within the meaning of the Constitution. Judicial review is more effective
as it is not recommended by the.court, but it specifically violates the ultra vires law. In
accordance with section 13(3)(a) “Rule” is stated in the Indian Constitution which clearly
indicates that the State should not make any law which abridge the right given in Part iii of the
Constitution. It is dependent on two basic grounds:
 It is ultra vires to the Constitution of India, and

 It is ultra vires to the enabling Act.
Although Indian courts have established some successful guidelines for proper exercise of
discretion, the conspectus of judicial conduct remains stagnant, varied, and residual, and lacks
American courts’.activism. Administrative direct judicial review process is exercised in two
grounds :
(1) Control at the stage of delegation of discretion – The court exercises control over the
delegation of discretionary powers to the government by adjudicating the constitutionality of
the law under which these powers are delegated in relation to the fundamental rights set out in
Part III of the Constitution of India. Consequently, if the law confers undefined and broad
discretion on any administrative authority, it may be considered ultra vires Article 14, Article
19 and other Constitutional provisions.
(2) Control at the stage of the exercise of discretion – In India, unlike the USA, there is no
Administrative Procedure Act which provides for judicial review of administrative
authority exercising. The.power of judicial review therefore derives from the statutory
structure of the tribunals. Indian courts have always held the view that judge-proven discretion
is a negation of the rule of law. Thus, they developed different formulations to control the
exercise of administrative discretion.
In P.B. Samant v. State of Maharashtra, the court held the distribution of cement against the
law and the circulars or guidelines issued by the Government on that behalf as bad. The
distribution of cement was in favour of certain builders in return for the donations given by
them to certain foundations of which the Chief Minister was a trustee. It was a clear case of
mala fide exercise of power. The power to control the distribution of an essential commodity
like cement is given to the Government with a view to ensuring its equitable distribution. When
this power is used for obtaining donations for a trust, it is a clear case of abuse of power
PROCEDURAL AND EXECUTIVE CONTROL
There is no clear protocol for this until the legislature compels the executive to obey those laws
or procedures. It may take a long time to follow a.particular format which will certainly negate
the actual purpose of the act. Procedural regulation therefore means that certain rules are laid
down under the Parent Act which must be followed whilst it is compulsory or directory to
follow it or not. It includes three components:
i. Pre publication and consultation with an expert authority,

ii Publication of delegated legislation.
iii Laying of rules.
It can be either Mandatory or Directory, to know, certain specified parameters are given:
i.Scheme of the Act.

ii.Intention of Legislature.
iii.Language used for drafting purpose.
iv.Inconvenience caused to the public at large scale.
And these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur
Municipal Council.
Judicial Review of Administrative Discretion
The main grounds for reviewing the administrative discretion, may be classified as under:
1. ULTRA-VIRES
The doctrine of ultra-vires states that a person or authority acting under statutory power can do
only those things which are statutorily authorised.
In case of failure to do so, the doctrine permits the courts to strike down the decision made by
the bodies exercising the public functions.
Khoday Distillaries Ltd. v. State of Karnataka
That the act of the administrative authority can be struck down if it is manifestly unreasonable
and arbitrary.
The test of reasonableness plays a significant part in the governance of the country.
It can always be pointed whether the authority has a reasonable ground exercising judgement.
2. ABUSE OF POWER
It has been seen that administrative bodies do not exercise their discretionary power for the
purpose intended to by the legislature.
All these factors amount to the abuse of discretionary powers and become ground for judicial
review.
A. Irrelevant Consideration
If the authority concerned pays attention to, or takes into account wholly irrelevant or
extraneous circumstances, events or matters, then the administrative action is ultra-vires and
bound to be quashed.
Associated Provincial Picture Homes Ltd. v. Wednesbury Corp.
Ruled that an authority exercising discretion must adhere to some principles: which include:
i. take all relevant factors into account;
ii. exclude all irrelevant factors from its consideration;
iii. reach the decision which is neither perverse nor irrational.
B. Improper Purpose
If the statutory authority exercises discretion for a different purpose the actions taken may be
quashed on the ground to have exercised that power for improper purpose.
Pratap Singh v. State of Punjab
It may be also possible to prove that an act of public body, though performed in good faith and
without the taint of corruption, was so clearly founded an alien and irrelevant ground as to be
outside the authority conferred upon the body and therefore inoperative.
It is not possible to draw hard and fast line, but if the administrative authority, by reason of its
having misconstrued the Act or for any other reason so used its discretion as to thwart or run
counter to the policy and objects of the Act, the court would certainly provide protection to the
persons aggrieved.
C. Errors of Law
Syed Yakoob v. K. S. Radha Krishnan
Court observed: An error of law which is apparent on the face of record can be corrected by a
writ but not an error of fact, however, grave it may appear to be.
The only case where a finding of fact might be impugned on the ground of error of law apparent
on the face of record are:
i. erroneously refusing to admit admissible and material evidence,
ii. erroneously admitting inadmissible evidence which influenced the finding, and
iii. a finding of fact based on no evidence.
D. Unauthorised Delegation
The principle is that when a power entrusted to a person in circumstance indicating that trust
is being placed in his individual judgement and discretion, he must exercise that power
personally unless he has been expressly empowered to delegate it to another.
E. Fettering of Discretion
When a statute confers powers on an authority to apply a standard as the case in administrative
discretion, it is expected of it to apply it from case to case, and not fetter its discretion by
declaration of rules or policy to be followed uniformly in all the cases.
Somabhai v. State
The court observed that: Generalization on matters which rest on discretion and the attempt to
discover formulae of universal application when facts are bound to differ from case to case
frustrates the very purpose of conferring discretion.
3. PROPORTIONALITY
The doctrine of proportionality is emerging as a new ground of challenge for judicial review
of administrative discretion.
It is a recognised general principle of law evolved with a purpose to maintain a proper balance
between any adverse effects which its decision may have on the rights, liberties or interests of
persons and the purpose it pursues.
The doctrine of proportionally endavours to confine the exercise of discretionary powers of
administrative authority to mean which are proportioned to the object to be pursued.
The courts while invoking the doctrine of proportionality may quash the exercise of powers in
which there is not a responsible relationship between the objective which is sought to be
achieved and the means used to that end.
Tests
'Proportionality' involves a Balancing test which keeps a check on the excessive or arbitrary
punishments or encroachment upon the rights and Necessity test which takes into account other
less restrictive alternates.
The principle of proportionality evaluates two aspects of a decision:
 Whether the relative merits of differing objectives or interests were appropriately weighed
or fairly balanced?
 Whether the measure in question was in the circumstances excessively restrictive or
inflicted an unnecessary burden on affected persons?
Landmark Case:
Associated Provisional Picture Houses Vs. Wednesbury Corporation
Under the concept of Secondary Review the Courts would strike down Administrative Orders
only if it suffers the vice of Wednesbury unreasonableness which means that the order must be
so absurd that no sensible person could ever dream that it lay within the powers of the
administrative authority.
Union of India v. Kuldeep Singh
The Supreme Court while invoking the principle of proportionately has held that:
It is equally true that the penalty imposed must be commensurate with the gravity of the
misconduct and that any penalty disproportionate to the gravity of misconduct would be
violative of Article 14 of the Constitution.
Union of India v. G. Ganayutham
In that case the Supreme Court after extensively reviewing the law relating to Wednesbury
unreasonableness and proportionality prevailing in England held that the 'wednesbury'
unreasonableness will be the guiding principle in India, so long as fundamental rights are not
involved.
Omkumar v. Union of India
However the Court refrained from deciding whether the doctrine of proportionality is to be
applied with respect to those cases involving infringement of fundamental rights.
Shrillekha Vidyarthi Vs. State of U. P
Equally important is the consideration whether the administrative action challenged as arbitrary
should remain within the purview of Wednesbury principle. For this, it is pertinent to look at
the meaning of the word arbitrariness. It is never an easy term to define with precision and
hence the Supreme Court in the case of equated arbitrariness with reasonableness.
Sandeep Subhash Parate Vs. State of Maharashtra
In that case a student obtained admission to Engineering Course based on a Caste Certificate,
which was subsequent to the admission, invalidated. However, he completed the course based
on an interim order of the High Court. Yet the University refused to grant him the degree.
This action of the University was held to be correct by the High Court.
The Supreme Court in appeal directed the University to grant him degree subject to the
appellant making a payment of Rupees One lakh, to re-compensate the State for the amount
spend on imparting education to him as a reservation candidate.
This, the Supreme Court claimed was done having regard to the doctrine of proportionality.
But the Supreme Court did not come to a finding that the University had failed to balance the
various considerations before refusing to grant the appellant the degree.
Also, the Supreme Court apart from mentioning the facts of the case failed to explain how it
came to the conclusion regarding proportionality.
At any rate the Supreme Court itself admitted that it was taking the decision under Article 142
of the Constitution of India.
Ranjit Thakur Vs Union of India
Wherein, an Army Officer disobeyed the lawful command of his superior officer by not eating
food offered to him Court Martial proceedings were initiated and a sentence of one year
rigorous punishment was imposed.
He was also dismissed from service, with added disqualification that he would be unfit for
future employments.
It was held that Judicial Review generally speaking, is not directed against a decision, but is
directed against the decision making process. The question of the choice and quantum of
punishment is within the jurisdiction and discretion of the Court-Martial.
But the sentence has to suit the offence and the offender.
It should not be vindictive or unduly harsh.
It shouldn't be so disproportionate to the offence as to shock the conscience and amount in
itself to conclusive evidence of bias.
Coimbatore Distt. Central Co-operative Bank v. Employees Association
Certain Employees went on illegal strike
They also prevented others from discharging their duty.
It was held that the acts amounted to serious misconduct.
Punishment imposed on the employees of stoppage of increment could not be said to be
disproportionate to the charges levelled and proved against employees.
K. S. Puttaswamy Vs. Union of India
Test of proportionality was upheld by the Hon'ble Supreme Court.
It was held that in the case of proportionality of a measure must be determined while looking
at the restrictions being imposed by the State on the fundamental rights of citizens.
It is not just the legal and physical restrictions that must be looked at, but also the fear that
these sorts of restrictions engender in the minds of the populace, while looking at the
proportionality of measures.
4. UNREASONABLE EXERCISE OF DISCRETIONARY POWER
The term unreasonableness embraces a wide variety of defects including misdirection,
improper purpose, disregard of relevant considerations and advertence to immaterial factors.
Associated Provincial Picture Homes Ltd. v. Wednesbury Corporation
The Court observes:
There may be something so absurd that no sensible person could ever dream that it lay
within the power of authority.
The fact is that all powers exercised by the public authorities are liable to be misused.
The courts are, therefore, vigilant to check the misuse of public power which is the subject
matter of judicial review.
5. IRRATIONALITY
The term irrationality and 'unreasonableness' are often used interchangeably.
However, irrationality may be said to be only one facet of unreasonableness.
A decision is said to be irrational if it is unreasoned; if it is lacking ostensible logic or
comprehensible justification.
Indian Railway Construction Company Ltd. v. Ajay Kumar
Court has held that judicial review is open in cases of irrationality.
While quoting Lord Diplock, the Apex Court has endeavoured to explain the meaning of
irrationality as a decision which is so outrageous in its defiance to logic or accepted moral
standards that no sensible person who had applied to the question to be decided could have
arrived at.
6. PROCEDURAL IMPROPRIETY
Procedure 'deals with the structure' of decision making and not the quality or impact of the
decision themselves.
Another important concern of the procedural justice is to promote the quality, accuracy
andrationality of decision-making process.
In case there is procedureal impropriety, the court can interfere.
7. JURISDICTIONAL ERROR
The court have held that the administrative authority cannot go into the question of validity of
substantive law or procedure laid down in the statute or the rules framedthereunder since it
itself is creature of statute.
The doctrine of ultra-vires permits the courts to strike down decision made by administrative
bodies exercising public functions, if they exceed the jurisdiction provided in the statute under
which they exercise their powers.
8. ACTING UNDER DICTATION
The cardinal principle of administrative law is that an authority entrusted with a discretion must
not, in the purported exercise of its discretion, act under the dictation of another body.
Indian Railway Construction Company v. Ajay Kumar
The Supreme Court of India struck down the order passed by the administrative authority on
the ground that it had acted under the dictation of a superior authority and had therefore,
surrendered its discretionary power to the dictation of other authority and had not acted
independently.
9. MALICE OR MALAFIDE
It is not only the power but the duty of the court to ensure that all authorities exercise their
powers properly, lawfully and in good faith.
If the powers are exercised with oblique motive, in bad faith or for extraneous or irrelevant
considerations, there is no exercise of power known to the law and action cannot be termed as,
action in accordance with law.
Somesh Tiwari v. Union of India
High degree of proof is required for review due to malice and mere allegations do not suffice.
In the absence of sufficient material, the court will not interfere, however, mala-fide exercise
of statutory power conferred on an authority is liable to be struck down if it is established by
the party who has alleged it so.
10. COLOURABLE EXERCISE OF POWERS
The courts have used this doctrine to denounce an abuse of discretion which speaks that under
the 'colour' or 'guise' or power conferred for one purpose, the authorities seek to achieve
something else which is not authorised to do so under the law in question.
State of Bihar v. Shree Baidyanath Ayurved Bhawan Pvt. Ltd.
It may be pointed out here that if a lawful object is chosen as a colour or guise for doing
something other than genuinely achieving that object, the action would be termed as colourable
exercise of power and it cannot be sustained in the eyes of law as it is mala-fide exercise of the
power.
Scope of Writ Jurisdiction (Article 32 and 226)
The Supreme Court of India under section 32 of the Indian Constitution[1] is empowered to
issue orders and writs to any person or authority and in some cases even the government if
someone approaches it with a claim of the violation of a Fundamental Right. This Article is
also known as the Right to Constitutional Remedy.
Similarly, the High Courts of India under article 226 of the Indian Constitution[2] are
empowered to issue orders and writs to any person or authority and in some cases even the
government pertaining to the matters which fall under its jurisdiction.
The constitution of India also gives a mention to the various kinds of writs under article 32 and
article 226 which are permissible and can be issued by the Courts. They are as follows:-
Writ of Habeas Corpus
Habeas Corpus is a term which is used to question the legality of a person’s detention. It can
be seen as a last resort and is only available when all the other legal remedies have been
exhausted.
Writ of Prohibition
The writ of Prohibition is issued by a Superior Court to a lower court, ordering it not to overstep
its Jurisdiction in matters cited in front of the court. On getting the writ of prohibition, the lower
court ceases to try the case and it gets transferred to the court having the requisite jurisdiction.
Writ of Quo Warranto
This writ is to challenge any illegal occupation of a public office by any person. If the person
fails to prove that he has legally occupied the office, he will be ordered to relinquish his office.
Writ of Certiorari
This writ is used to verify any judgment given by a lower court by a higher court. This is a
supervisory power and not an appellate one.
Writ of Mandamus
This writ which is issued by a court compelling any person or governmental entity to follow
law and carry our statutory duty as required.
Landmark Cases
India is one of those countries in the world, which has an old yet robust Justice Delivery system.
Indian Judiciary can rightly be said to have an iron fist with a velvet glove. More often than
not the Justice delivered by India has got praised all over the world and have been cited by
many irrespective of which country they belong to.
Writ jurisdiction given to the Indian Courts under Article(s) 32 and 226 of the Constitution of
India is a power which has enabled it to help sustain this great country a lot many times. There
have been several instances where the Indian Courts have taken an extra mile and given historic
judgments Some of these cases are:-
ADM Jabalpur v. Shivkant Shukla
Popularly known as the Habeas Corpus case, this case has been one of the most historic cases
in the history of Indian Judiciary. In this case, the Court was approached with a contention that
whether the right of a person to approach the respective High Court gets quashed during a state
of emergency when the fundamental rights are suspended. The case was duly heard by a
constitutional bench of the Supreme Court and the court pronounced the judgment in which a
Presidential Order was cited and it was confirmed that no individual has got any locus standi
to move any writ petition to any High Court under article 226 of the Indian Constitution during
an Emergency.
Vishnu Kamath v. Ahmad Ishaque
This case was pertaining to an Election Petition in which the Court intervened and held that the
High court has the power under Article 226 of the Indian Constitution to quash any order passed
by a subordinate court (in this case the Election Tribunal) in which the court feels has passed
an order outside its jurisdiction by applying the writ of Certiorari.
University of Mysore v. Govinda Rao
In this case, the University of Mysore advertised some posts for professors and readers. The
respondent approached the High Court under Article 226 challenging the appointment of a
person and to show under what authority was he holding the office of a reader in English by
applying the writ of mandamus. The High Court set aside the appointment as it was held that
the person appointed did not fulfill the requisitions which were annexed with the
advertisements.
Satyanarayan Sinha v. Lal & Co.
In this case, the petitioner filed a case challenging the grant of a lease of mining to the
respondent. The court observed that since the petitioner had no personal interest or locus standi
in the lease and was not there in person in the Court. The Court had no jurisdiction under Article
32 or 226 of the Constitution of India to entertain the matter under its writ jurisdiction and the
case was not maintainable.
Grounds for exercise of Writ Jurisdiction

A) Writ of Habeas Corpus:-
The expression “Habeas Corpus” is a Latin term which means ‘to have the body’. If a person
is detained unlawfully, his relatives or friends or any person can move the Court by filing an
application under Article 226 in High Court or under Article 32 in Supreme Court for the writ
of Habeas Corpus. The Court on being satisfied with the contents of the application, issues the
writ. This writ is in the nature of an order calling upon the person who has detained another to
produce the latter before the Court, in order to let the Court know on what ground he has been
confined and to set him free if there is no legal justification for the confinement. The Court
may also award exemplary damages. In Bhim Singh Vs State of Jammu& Kashmir, AIR 1986
SC 494, the Hon’ble Apex Court awarded the exemplary damages of Rs.50,000/-(At that time
this was a very significant amount).
An application for habeas corpus can be made by any person on the behalf of the
prisoner/detenu as well as the prisoner/detenu himself. Even a letter to the judge mentioning
illegalities committed on prisoners in jail can be admitted. In Sunil Batra Vs Delhi
Administration, AIR 1980 SC 1579, a convict had written a letter to one of the Judges of the
Supreme Court alleging inhuman torture to a fellow convict. The late justice Krishna Iyer
treated this letter as a petition of habeas corpus and passed appropriate orders. Courts can also
act suo motu in the interests of justice on any information received by it from any
quarter/source. The general principle is that a person illegally detained in confinement without
legal proceedings is entitled to seek the remedy of habeas corpus.
However, the writ of habeas corpus is not issued in the following cases:
(i) Where the person against whom the writ is issued or the person who is detained is not within
the jurisdiction of the Court.
(ii) To secure the release of a person who has been imprisoned by a Court of law on a criminal
charge.
(iii) To interfere with a proceeding for contempt by a Court of record or by Parliament.
Thus writ of habeas corpus is a bulwark of personal liberty. I has been described as “a great
constitutional privilege” or “ first security of civil liberty”. The most characteristic element of
the writ is its peremptoriness i.e. a speedy and effective remedy for having the legality of
detention of the person enquired and determined by the Court.
B) Mandamus:-
The expression ‘Mandamus’ is a Latin term which means “ We Command”. Mandamus is a

Judicial order issued in the form of a command to any Constitutional, Statutory or Non-
Statutory authority asking to carry out a public duty imposed by law or to refrain from doing a
particular act, which the authority is not entitled to do under the law. It is an important writ to
check arbitrariness of an administrative action. It is also called ‘Writ of Justice’
Mandamus demands some kind of activity on the part of the body or person to whom it is
addressed. Thus, when a body omits to decide a matter which it is bound to decide, it can be
commanded to decide the same. Where the Government denies to itself a jurisdiction which it
has under the law or where an authority vested with the power improperly refuses to exercise
it, mandamus can be issued. Thus, mandamus will not be issued unless the applicant has a legal
right to the performance of legal duty of a public nature and the party against whom the writ is
sought is bound to perform that duty.
The rule of Locus Standi is strictly followed in while issuing writ of mandamus. The petitioner
has to prove that he has a right to enforce public duty in his favour. The petitioner can approach
the High Court or Supreme Court for issuing the writ of mandamus on the following grounds:-
(i) Error of jurisdiction;
(a) Lack of jurisdiction

(b) Excess of jurisdiction
(ii) Jurisdictional facts;
(iii) Violation of the principles of natural justice i.e. principles of Rule against bias and Rule
of Audi alterem partem;
(iv) Error of law apparent on the face of record
(v) Abuse of jurisdiction
It is a discretionary remedy and the High Court may refuse to grant mandamus where an
alternative remedy is available for the redressal of the injury complained of. In the matter of
enforcement of fundamental rights, however, the question of alternative remedy does not weigh
so much with the Court since it is the duty of the High Court or the Supreme Court to enforce
the fundamental rights. In India, mandamus will lie not only against officers who are bound to
do a public duty but also against the Government itself as Article 226 and 361 provided that
appropriate proceedings may be brought against the Government concerned. This writ is also
available against inferior Courts or other Judicial bodies when they have refused to exercise
their jurisdiction and thus to perform their duty
Further, Mandamus will not be granted against the following persons:

(i) The President or the Governor of a State, for the exercise and performance of the powers
and duties of his Office or for any act done or purporting to be done by him in the exercise and
performance of those powers and duties.
(ii) Mandamus does not lie against a private individual or body whether incorporated or not
except where the State is in collusion with such private party, in the matter of contravention of
any provision of the Constitution or a Statute or a Statutory instrument.
(iii) It will not lie against the State legislature to prevent from considering enacting a law
alleged to be violative of constitutional provisions.
(iv) It will not lie against an inferior or ministerial officer who is bound to obey the orders of
his superiors
Thus, Writ of Mandamus is a general remedy whenever justice has been denied to any person.
C) Prohibition:-
The expression ‘prohibition’ literally means ‘to prohibit’. The Writ of Prohibition is a Judicial
order issued by the Supreme Court or a High Court to an inferior Court or quasi-judicial body
forbidding the latter to continue proceedings therein in excess of its jurisdiction or to usurp a
jurisdiction with which it is not legally vested. Thus, object of the writ is to compel inferior
courts to keep themselves within the limits of their jurisdiction.
Earlier, this writ was used to issue only to judicial and quasi-judicial bodies. But such
requirement is no longer valid. With the expanding dimensions of natural justice and the
requirement of fairness in administrative functions, the rigidity about prohibition has been
liberalized. This writ can now lie to anybody, irrespective of the nature of function exercised
by it, if any of the grounds on which the writ is issued is present.
The writ of prohibition can be issued on the following grounds:

(i) Absence or Excess of jurisdiction;
(ii) Violation of the principles of natural justice;
(iii) Unconstitutionality of a Statute;
(iv) Infraction of Fundamental Rights
Thus, writ of prohibition is available during the pendency of the proceedings and before the
order is made. The object is to secure that the jurisdiction of an inferior court or tribunal is
properly exercised and that it does not usurp the jurisdiction which it does not possess.
D) Certiorari:-
The expression “ certiorari” is a Latin word which means “ to certify”. This writ confers power
on the Supreme Court and High Courts to correct illegality of their decisions. ‘Certiorari’ is a
judicial order issued by the Supreme Court under Article 32 and/or by the High Court under
Article 226 of the Constitution to an inferior Court or quasi-judicial or any administrative body
to transmit to the Court of records of proceedings pending therein for scrutiny and decide the
legality and validity of the orders passed by them. If the decision is bad in law, it is quashed.
The conditions necessary for the issue of the writ of certiorari are:-
(i) Any body of persons;
(ii) Having legal authority;
(iii) To determine questions affecting the rights of subjects;
(iv) Having the duty to act judicially;
(v) Act in excess of legal authority
The grounds on which the writ of certiorari may be issued are:

a. Error of Jurisdiction
(i) Lack of jurisdiction

(ii) Excess of jurisdiction
b. Abuse of jurisdiction
c. Error of law apparent on the face of the record
d. Violation of principles of natural justice
The purpose of the writ of certiorari is not only negative in the sense that it is used to quash an
action but it contains affirmative action as well. It is preventive as well as curative in nature.
The power of judicial review is not restricted where glaring injustice demands affirmative
action.
Case study:- In A.K. Kripak Vs Union of India, AIR 1970 SC 150, the Supreme Court issued
the writ of certiorari to quash the selection list of the Indian Forest Service on the ground that
one of the selected candidates was the ex-officio member of the selection committee.
E) Writ of Quo Warranto:- The Writ of ‘Quo Warranto’ questions the title as to the holder
of an office. The term ‘Quo Warranto’ means ‘what is your authority ‘ It is a judicial order
asking a person, who occupies public office, to show by what authority s/he holds the office.
If it is found that the holder of the office has no valid title, then this writ is issued to him to oust
from the office.
Thus writ of Quo Warranto is a mode of judicial control in the sense that the proceedings review
the actions of the administrative authority which appointed the person. The writ is issued to the
person ousting him from holding a public post to which he has no right. It is used to try the
civil right to a public post. Accordingly, the use of the writ is made in cases of usurpation of a
public office and removal of such usurper. Conversely, it protects citizen from being deprived
of public office to which he may have a right. A petition for the writ of Quo Warranto can be
filed by any person though he is not an aggrieved person.
The conditions necessary for the issue of a writ of Quo Warranto are:
(i) The office must be public and it must be created by a statute or by the constitution itself.
(ii) The office must be a substantive one and not merely the function or employment of a
servant at the will and during the pleasure of another.
(iii) There has been a contravention of the Constitution or a statute or statutory instrument, in
appointing such person to that office.
The fundamental basis of the proceeding of Quo Warranto is that the public has an interest to
see that an unlawful claimant does not usurp a public office. It is, however, a discretionary
remedy which the Court may grant or refuse according to the facts and circumstances of each
case. Thus, it may be refused when it is vexatious or where it would be futile in its result or
where the petitioner is guilty of laches or where there is an alternative remedy for ousting the
usurper. In P.L. Lakhan Pal Vs A.N.Ray, AIR 1975 Del.66, the Delhi High Court refused to
issue writ against Chief Justice of India, Justice Ray because it would be futile in its result as
the three Judges senior to him already resigned. Justice Ray becomes the seniormost and as
such can be re-appointed even it were assumed that the appointment of Chief Justice of India
should be on the basis of seniority rule.
Conclusion: Thus it is clear that vast powers are vested with the Judiciary to control an
administrative action when it infringes fundamental rights of the citizens or when it goes
beyond the spirit of Grundnorm of our country i.e Constitution of India. It ensures the Rule of
Law and proper check and balances between the three organs of our democratic system.The
philosophy of writs is well synchronized in our Constitutional provisions to ensure that rights
of citizens are not suppressed by an arbitrary administrative or Judicial action.
Exclusion of Judicial Review/ Finality Clause

Finality clauses are provided by the statute to declare that the decision by any agency “shall be
final”. This article analyses and traces the evolution of the finality clauses in India by
examining the evolution of the role of the Judiciary. It traces how Indian courts initially inspired
the English tradition of law that gave primacy to parliamentary sovereignty and the courts
assume a modest role, despite the constitution having federal features. Therefore, when
legislation authorized the preventive detention, it was challenged in the Supreme Court in the
case of A.K. Gopalan v. State of Madras. The Supreme Court held a view that the Indian
constitution does not incorporate within itself the concept of “due process” as in America.
Supreme Court invoked the test of ‘pith and substance’ of the subject matter in this case and
propounded that only legislative competence is concerned with the direct and the incidental
effect of the legislation for the purpose of federal distribution of power and it does not brings
forth the question of infringement of the fundamental rights secured by the constitution. In this
context, it would have been relevant if the effect of the legislation was to abridge or take away
the fundamental rights provided by the constitution.
The role of the Indian judiciary vis-a-vis the parliamentary sovereignty was evolving; with the
courts changing their position from the initial one in the parliamentary privileges case whereby
it was held that in matters of dispute relating to the houses of parliament the Indian courts were
adjudicators, this view was held because the constitution of India, for the reason of it being
federal in nature is fundamental and central to federalism and ensure that the federal or the state
do not overstep their authority. The Constitution provides the High Courts and Supreme Court
under Article 226 and 32 respectively to enforce the fundamental rights against the state. The
article cites statutes by which the Indian legislature tried to block the judicial review power of
the courts by the means of the finality clauses. It cites the case of Dhulabai v. State of Madhya
Pradesh which propounds that the jurisdiction of the civil court can only be ousted if the statute
provides for substantial remedies that a civil court would do. Thus upon establishment of
appropriate forum the jurisdiction of the civil court can be assumed to be ousted. However to
keep in check the discretion enjoyed by the administration is not arbitrary the courts can be
said to have distinguish the arbitrary discretion of the administration into two categories, first
being the “abuse of discretion” exceeding their authority and the second is “non-application of
mind” where the administration omits to do what it was supposed to do. However, the
judgments in the later cases including the Maneka Gandhi v. Union of India case, The Shankari
Prasad case and The Sajjan Singh case, The Golaknath and the Keshavananda Bharti case
exemplified the changes in the nature of the Indian Judiciary. Which established that the power
of Judicial Review cannot be completely excluded.
Administrative Finality on Judicial Review
Finality clause are provided by the statute to declare that a decision by any agency “shall be
final”. In the landmark judgement of R. v. Medical Appeal Tribunal, ex p. Gilmore the appeal
court held that the decision made by administrative authorities if made final might lead to no
corrections in the errors made by the inferior tribunals as it will be immune from the attack by
superior courts by the means of certiorari. This case establishes a supervisory jurisdiction on
the decision made by the administrative tribunals in finding of law. It further laid down that
the decision of the inferior tribunals is not immune from the jurisdiction of the superior courts
where it is expressed to be “final”. Lord Denning observed that the finality clause is included
in the statute on the presumption that the tribunal will take the law into consideration while
deciding a case. The decision given by the administrative tribunal can only be final upon
finding of the facts and not the question of law. Thus, it was laid down that this clause can only
be invoked and will only be effective when the question of fact is challenged. The courts are
furthermore allowed to review the decision of the tribunals based on the excess of jurisdiction
and when there is error on the face of record. However, if for instance there is a “mixed
questions of law and facts” and the court cannot possibly separate the two and figure out where
the question of law lies, in such cases, the decision given by the administrative tribunal should
be taken as final and conclusive. The courts justify reviewing the question of law in the decision
given by the administrative tribunal on the ground that such error in the implementation of law
might lead to miscarriage of justice.
However, a person aggrieved by the decision of administrative tribunal can approach court
when the decision given by the tribunal is ultra vires, meaning that the tribunal has exceeded
its jurisdiction while exercising its authority. Therefore, the decision can be reviewed by the
court on the ground of it being ultra vires, which is a question of law. In England the
administrative finality has been attempted to be established by various statutes. However, by
merely invoking a clause establishing finality of the decision by the tribunal does not bar the
court from reviewing the decision on the ground of law although it does prevent the court from
questioning or challenging it based on facts. Thus it can be concluded that the finality clause
only makes the decision of the tribunal on the facts “final” and not the question the law.
Finality clauses in India
The Indian courts in the beginning took English rather than American tradition despite the
constitution being federal in nature. According to which the role of the court is modest and the
parliament is sovereign. Therefore, when legislation authorized the preventive detention, it was
challenged in the Supreme Court in the case of A.K. Gopalan v. State of Madras. The Supreme
Court held a view that the Indian constitution does not incorporate within itself the concept of
“due process” as in America. Supreme Court invoked the test of ‘pith and substance’ of the
subject matter in this case and propounded that only legislative competence is concerned with
the direct and the incidental effect of the legislation for the purpose of federal distribution of
power and it does not brings forth the question of infringement of the fundamental rights
secured by the constitution. In this context it would have been relevant if the effect of the
legislation was to abridge or take away the fundamental rights provided by the constitution.
This view, however, started changing with the decision in the parliamentary privilege case, the
Supreme Court gave an advisory decision in this case upon being asked by the president of
India. The facts of this case are that a citizen was booked for publishing a libel against a
member of the state legislature by the state legislature. The facts of this case were similar to
some English cases. The High Court further upon the citizen’s appeal released him upon habeas
corpus and the judges were asked to summon before the house for its contempt, which was
petitioned before the full judge bench in high court by the judges. Then the house issued
warrant for the arrest of the judges to be produced before it to deal with the contempt. After
which the president acting upon his powers conferred under the article 143 of the
constitution referred the question concerning parliamentary privileges to the Supreme Court.
The Supreme Court in response to that said in the matters of dispute relating to the houses of
parliament and the high court, first the high court and then on appeal Supreme Court is
conferred with the power to adjudicate upon the matter and is the final authority over the same
because the Indian courts the arbitrator. The court held this view because the constitution of
India, for the reason of it being federal in nature is fundamental and central to federalism and
ensure that the federal or the state do not overstep their authority. The constitution provides the
high court and Supreme Court under article 226 and 32 respectively to enforce the fundamental
rights against the state. The legislature however did not take the advisory opinion of the
Supreme Court to be binding upon them but this case does indicate the alteration in the views
of the Indian judiciary.
There are a lot of statutes in India exhibiting the legislature’s intention to block out the judicial
review by the means of finality clause. This further excludes the jurisdiction of the civil court
upon these matters under section 9 of the civil procedure code. However, it can only exclude
the superior court from interfering in the matter but cannot bar the supervisory jurisdiction of
the high court and Supreme Court under article 226 and 32 respectively. Thus, to ensure that
due process is followed, the Supreme Court in the case of Dhulabhai v. State of Madhya
Pradesh, propounded that the jurisdiction of the civil court can only be ousted if the statute
provides for substantial remedies that a civil court would do. Thus upon establishment of
appropriate forum the jurisdiction of the civil court can be assumed to be ousted. However to
keep in check the discretion enjoyed by the administration is not arbitrary the courts can be
said to have distinguish the arbitrary discretion of the administration into two categories, first
being the “abuse of discretion” exceeding their authority and the second is “non-application of
mind” where the administration omits to do what it was supposed to do.
However, the change in the Indian judiciary became evident from the Supreme Court’s ruling
in the case of Maneka Gandhi v. Union of India, the brief facts of the case are the Maneka
Gandhi’s passport was seized without any conclusive reason and the appellant was not given a
chance to be heard. Which violates the principle of natural justice i.e. right to be heard. The
Supreme Court held that the “procedure established by law” under article 21 of the Indian
constitution has to be “reasonable, just and fair”. Also, the ruling of the AK Gopalan case has
been outright rejected by the Supreme Court in this case. Thus from the case it can be concluded
that the principles of natural justice were protected but only on a personal liberty level. This
Case furthered the concept of “due process” in Indian law at least for protecting individual
liberty.
The “unconstitutional constitutional amendment” Amendment 42 to the Indian Constitution
raised various question about the power of judicial review and amendability of the Part III of
the Constitution of India. The constitutionality of the first amendment was first challenged in
Shankari Prasad and then was subsequently amendment seventeenth was challenged in Sajjan
Singh Case. However, it was only in the case of Golaknath that Supreme Court with the
majority of five to six decided that parliament cannot make any amendment to the constitution
which abridges or take away the fundamental right in the part III of the constitution. Thus
makes an important and a landmark observation in this case that the Supreme Court is conferred
with reviewing the constitutional amendment under Article 13(2) of the constitution. However,
in opposition to this judgment the parliament enacted a twenty-fourth amendment giving itself
the authority to amend whatever part it wants. This gave rise to the emergence of “basic
structure” doctrine in the Keshavananda Bharathi case, which meant that amendment can be
made as long as it not take away the basic structure of the constitution. These developments
established that the power of the judiciary of judicial review cannot be completely excluded.
The “partial exclusion of the judicial review” was permitted in the case of Sampath Kumar v.
Union of India. It upheld that the decision of the administrative tribunal can be made immune
from the judicial review by the high court if the administrative tribunal constitutes “judicial
element”. To completely exclude the judicial review there has to be an appeal procedure. This
view, however, is not well appreciated in the Indian context, it is followed that judicial review
cannot be excluded completely even if there were alternative remedies in the cases where the
tribunals have acted beyond their jurisdiction.
Conclusion
The finality clauses or excluding judicial review from the administrative tribunals was not a
much debated issue in India before the parliamentary privilege case. Before this case, the
position was that due process is not a part of Indian constitution or else it would have been
included in the constitution by the constituent assembly. However, in this case, the Supreme
Court said in the matters of dispute relating to the houses of parliament and the high court, first
the high court and then on appeal Supreme Court is conferred with the power to adjudicate
upon the matter and is the final authority over the same. Even though a lot of statutes in India
invoke finality clauses the scope of judicial review is never completely excluded from its
purview, the jurisdiction of the civil court can only be ousted if the statute provides for
substantial remedies that a civil court would do. The courts in the Indian subcontinent have
drawn on from the encounters of Common lawyers yet they needed to manage novel
circumstances emerging somewhat out of political exigencies and halfway out of the important
constitutional provisions. The Courts have confronted the problem valiantly in guarding the
job of Judiciary in looking at the legality of legislative activities despite express and inferred
Ouster Clauses. In doing so they have relied heavily on novel doctrines with innate
implications. Thus even though these doctrines and provisions only partial exclusion of the
judicial review is permitted in India.
Principles for exercise of Writ Jurisdiction
Indian Journal of Law and Legal Research Volume II Issue II | ISSN: 2582-8878
WRIT JURISDICTION: SCOPE AND LIMITATIONS FACED

BY THE COURTS
Gopika Thakur, Bennett University, Greater Noida
ABSTRACT
The paper majorly focuses on the Writ jurisdiction under Article 32 and Article
226 of the Indian constitution. The paper initially talks about the types of reliefs
available and the functions of these articles and then progresses on to discuss the
limitations of these articles on the judicial courts of law. The scope of the research
paper limits to the powers of the Supreme Court and the High court to exercise
these powers granted to them by the Constitution to protect the rights of the
citizens from its infringement. The paper will also aim to discuss the interrelation
between the two articles and what makes them distinct from each other. We shall
also look into the various challenges faced by the courts when huge number of
these petitions are filed before them and how they take cognizance of the matter
and dispose them in the appropriate manner.
1
LIST OF CASES
S. NO CASES CITIATION
1 Daryao Singh v. State of UP Air 1961 SC 1457
2 D. C. Wadhwa v. State of Bihar AIR 1897 SC 597
3 Durga Prasad v. Chief Controller AIR 1970 SC 769
4 E. A. Coop. Society v. State of Maharashtra AIR 1966 SC 1149
5 Fertilizers Corporation Kamgar Union v. Union AIR 1981 SC 344
of India
6 Har Shankar v. Dy. Excise Commissioner 1975(1) SCC 737
7 Icchu Devi v. Union of India AIR 1980 SC 1984
8 Mahadev Kalkar v. State Bank of Hyderabad 1990(4) SCC 174
9 M.S.M. Sharma v. Krishan Sinha AIR 1960 SC 1186
10 People’s Union for Democratic Rights v. Union (1982) 3 SCC 235
of India
11 Prem Chand Garg v. Excise Commissioner AIR 1963 SC 996
12 Ram Manohar Lohia v. State of Bihar AIR 1966 SC 740
13 Sarojini Ramaswamy v. Union of India AIR 1992 SC 2219
14 Sarvepalli Ramaiah (D) The. Lrs. & Ors. v.
District Chittoor Dist. & Ors.
15 State of AP v. Parent of a Student of Medical AIR 1985 SC 910
College
16 Steel Ltd v. Kalyan 1973(1) SCC 273
17 Sunil Batra v. Delhi Administration AIR 1980 SC 1579
18 Supreme Court Advocates on Record Ass. v.
Union of Bihar
19 Tilokchand Motichand v. H. B. Munshi, AIR 1970 SC 898
Commissioner of Sales Tax
20 Univ. of Mysore v. Govinda Rao AIR 1965 SC 491
21 Union of India v. T.R. Verma AIR 1957 SC 882
22 Vijay Mehta v. State of Rajasthan AIR 1980 Raj 207
2
I INTRODUCTION
The struggle for independence by the Indians against the colonial rule, was a long journey of
torture, pain and suffering, yet a battle, that millions fought with an undying spirit and
enthusiasm. This struggle bared its fruits when we eventually freed and got our independence.
Since then, the policy makers and the leaders of our country wished for an India that was
“Sovereign, Socialist, Democratic, Secular and Republic”, ensuring that every citizen enjoyed
justice, equality and liberty alongside the right to dignity of individuals and maintaining the
integrity of the nation.
The founding fathers of the nations enshrined these principles and ideals in the preamble of the
Indian constitution after navigating and analysing across some of the best constitution in the
world and integrating the best provisions from these Constitutions into our new Constitution,
which became the supreme authority of law in the land.
Part III of the Constitution contains the Fundamental Rights, which were solely included to
secure to its citizens the basic human rights, that they are to possess as a matter of right and
any infringement of these right will provide them a legal backing in the courts of law. These
rights reflect the component of justiciability and enforceability, which makes them efficient to
operate through the mechanisms of writs. Writs are an instrument which gives the power to the
court (Supreme Court or High Court) where it can issue an order or direct an authority or an
individual to do an act or refrain from doing an act.
The Indian Constitution provides for remedies in cases where the basic and fundamental rights
of the citizens are infringed due to arbitrary administrative action, by conferring writ
jurisdiction to the Supreme Court and the High Court in the form of Article 32 and Article 226,
respectively.
Writ jurisdiction is the most commonly used method to bring about administrative action before
the competent courts of law. Since the commencement of the constitution and till date,
numerous petitions and cases, against the arbitrary action of the governmental administration,
have been filed under this area of writ jurisdiction, which has resulted in its domination over
all other methods of judicial review of administrative action.
There have been instances of abuse of this power by the citizens, where the authority of these
articles were taken beyond their scope, making them ultra vires1 to the constitution and
rendering a violation to the rule of law. It is the duty of the court to ensure proper
1
Beyond the authority
3
implementation and execution of these articles and dismissing petitions that go beyond its
jurisdiction. There are certain limitations in both the articles (32 and 226), hence, it is necessary
that these defects are corrected for better effectiveness and proficiency of the judicial system.
4
II ARTICLE 32 AND 226: SCOPE AND FUNCTIONS
Article 32 and 226 : Scope and Functions
Article 32, as stated by Dr. BR Ambedkar, is the “very soul of the Constitution and the very
heart of it”2. It follows the legal maxim of Ubi Jus Ibi Remedium which refers to where there
is a right there is remedy. Contained in the Part III of the Constitution, it is one of the most
important articles as it mentions and gives power to enforce the right of the citizens, before the
courts to seek justice for their basic rights that have been arbitrarily or unduly infringed. This
power of reinstating the right to the individuals/ citizens is vested with the Supreme Court,
which is the apex judicial body in the country, through the Constitution.
The Supreme Court stated the importance of Article 32 in the landmark case of Prem Chand
Garg v. Excise Commissioner, where according to the words of Gajendragadkar J.,
"The Fundamental Right to move this Court can therefore be appropriately described as the
cornerstone of the democratic edifice raised by the Constitution. ‘That is why it is natural that
this Court should, regard itself ‘as the protector and guarantor of Fundamental Rights’ and
should declare that ‘it cannot, consistently with the responsibility laid upon it, refuse to
entertain applications seeking protection against infringements of such rights’.”3
The Supreme Court also in the case of Fertilizers Corporation Kamgar Union v. Union of
India4, observed that Article 32 forms an “integral part of the basic structure of the
Constitution”. The court held that, “It is meaningless to confer fundamental rights without
providing an effective remedy for their enforcement, if and when they are violated”. It is
important to note that Article 32 is of a nature as it can be barred even during emergency.
Article 32 also offers remedies against private persons for the enforcement of Article 17, 32
and 245.
Article 32 allows the Supreme Court to relax the conventional rule of Locus Standi6 and adopt
the procedure of Public Interest Litigations (PIL), where the citizens, even without approaching
the court, can enforce their rights in cases of bonded labour, undertrial of prisoners, right to
2
Dr. BR Ambedkar, Drafting Committee on Article 32 of the Constitution of India
3
AIR 1963 SC 996
4
AIR 1981 SC 344
5
People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235
6
The right to appear before the court
5
information, torture under police custody, etc,. The territorial scope of Article 32 does not
restrict just within the territory of India but also extends over those authorities functioning
outside of the country provided that these institutions of authority fall under the control of the
Government of India. Article 32 needs to be read in conjunction with Article 142 of the
Constitution of India.
Article 226 is a right, similar to Article 32, given to the High Courts to issue writs for
safeguarding and upholding the rights and liberties of the citizens of the country. In the case of
Sarvepalli Ramaiah (D) Thr. Lrs. & Ors. v. District Chittoor Dist. & Ors., it was held by the
Supreme court held that,
“Administrative decisions are subject to judicial review under Article 226 of the Constitution,
only on grounds of perversity, patent illegality, irrationality, want of power to take the decision
and procedural irregularity. Except on these grounds administrative decisions are not
interfered with, in exercise of the extra ordinary power of judicial review”
The right to original jurisdiction to issue writs is reserved with the High Court according to the
Constitution. The article provides huge powers to the High Courts to control administrative
action and makes sure that no legislations are passed that curtails or restricts its powers.
Individuals can move the court not only for the enforcement of their fundamental rights but
also for their legal rights. The powers conferred by Article 226 on the High Courts are said to
be wider than compared to the powers conferred on the Supreme Court under Article 32.
There are five types of writs that are made available under Article 32 and 226. They are known
as the prerogative writs. This term has been derived from the English law where the king
exercised his prerogative power of superintendence and ensured that the due rule of law was
observed by his officers and tribunals. These prerogative writs are applicable in extra-ordinary
circumstances where the usual legal remedies are not sufficient.
The 5 types of writs are as follows-
1. Habeas Corpus
The Latin definition of this term extends to “to have the body”. This writ can be issued by any
person on behalf of the detainee/ prisoner, who has been unlawfully and unjustly detained
without following the due procedure as laid down under Article 22. The detention is said to be
6
unlawful when the authority, who has the power of detention, uses this power in a
disproportionate manner or abuses this power or has intentions that are mala fide 7. The court
ones satisfied with the matters of application of the writ can issue orders directing the person
who has unlawfully detained the person, to present the latter before the court, so that the court
can evaluate the grounds on which he was detained and free him from such detention if no
proper justification is found. The landmark case of Sunil Batra v. Delhi Administration8, Justice
Krishna Iyer considered the letters of the detainee, alleging torture by the jail authorities, as a
petition for Habeas Corpus. The courts have the power to take Suo moto action, if the matter
concerns justice and equality, received from any source. In the case of Icchu Devi v. Union of
India9, the Supreme Court took into cognizance that the court does not have to follows strict
guidelines for pleading in the case of an application under the writ of Habeas Corpus.
2. Mandamus
The writ of mandamus is derived from the Latin phase “We command”. This writ is also called
as the “writ of Justice” as the court can order any public authority or constitutional or statutory
or non-statutory body to perform or carry out any duties as laid down by the law or restrain
from carrying out any particular act or duty. The essential prerequisites for issuing a writ of
mandamus, that are to be satisfied is that the petitioner should have an existing legal right and
the respondent has the legal duty, that would compel his performance. In the case of Vijay
Mehta v. State of Rajasthan10, the Apex court held that a writ of mandamus cannot be issued
to compel state governments to appoint commissions, as the government holds discretionary
and optional powers in matters of appointment of commissions. In cases where the government
refuses to handle matters that fall under its jurisdiction, the writ of mandamus can be issued 11.
For the writ of mandamus to be issued it is necessary to strictly follow the rule of Locus Standi
and the petitioner has to show that he has the right to enforce duty on his behalf. This writ is
available not only against public officers but also can be enforced against the government under
article 226 and 361. However, it needs to be made sure that proper proceedings are
administered against the government concerned. Inferior courts and other judicial bodies and
tribunals can also be summoned using this writ in case they do not perform their duties by
refusing their jurisdiction.
7
Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740
8
AIR 1980 SC 1579
9
AIR 1980 SC 1984
10
AIR 1980 Raj 207
11
E.A. Coop. Society v. State of Maharashtra, AIR 1966 SC 1149
7
3. Quo Warranto
The writ of Quo Warranto translates to “what is your authority”. The writ questions the
position of the officer holding the public office and whether he has the authority to hold such
office of power. If the officer is seen to hold no official title, then he can be ousted through the
implementation of this writ. In the case of Univ. of Mysore v. Govinda Rao12, it was held that
the court has the power to control elections or appointment to offices of law, with the aim of
preventing a person from being deprived of an office of authority that he/ she is entitled to.
The main function of the writ is to prevent unlawful usurpation of public office and allows any
party, even if he/ she is not the aggrieved party, to seek redressal for their wrongs.
4. Certiorari
The Latin definition of this writ refers to “to certify”. It gives powers to the Supreme Court
and the High Court to transfer pending cases and records from inferior courts or quasi-judicial
courts, in order to scrutinise and decide the legal validity of such judgements and orders passed
by them. The prerogative writ of Certiorari is of affirmative, preventive and curative in nature.
this writ exercises a supervisory jurisdiction and the High Court is not allowed to exercise its
powers of an appellate court. There are certain grounds under which this writ can be issued.
Them being-
a. Jurisdictional error
b. Absence of jurisdiction
c. Overuse of the power of jurisdiction
d. Misuse of jurisdiction
e. Error of law on the record passed by the court
f. Disobedience of principles of natural justice
5. Prohibition
The writ of Prohibition is the translated from the Latin term meaning “to prohibit”. It is issued
as an order from the superior courts to the inferior courts to stop or discontinue the proceedings,
where it can be seen that they have gone ultra vires to their jurisdictional powers. The writ
focuses on keeping the inferior courts within the limits of their jurisdiction. Earlier, it could be
enforced only upon judicial and quasi-judicial bodies. But as the realms of law and natural
justice have been expanding for fairness and accountability in administrative actions, the
12
AIR 1965 SC 491
8
rigidity of the writ has been subsided, making it applicable over anybody, irrespective of the
functions performed by them. The grounds to issue the writ of prohibition include-
a. Infringement of fundamental rights
b. Unconstitutionality of the provision or statute
c. Lack or excess of jurisdiction
d. Infringement of principles of natural justice
9
III DISTINCTION BETWEEN ARTICLE 32 AND 226
Distinction between Article 32 and 226
The main distinction that can be identified between Article 32 and 266 is that Article 32 can be
invoked only for the implementation of the Fundamental rights, whereas Article 226 can be
seen to have a wider as it can be enforced for violation of Fundamental rights as well as other
legal rights. It can be observed that Article 32 has a more restricted definition compared to
article 226. However, there can be exceptional circumstances, such as in the case of D.C.
Wadhwa v. State of Bihar13 (abuse of ordinance making powers), Supreme Court Advocates on
Record Ass. v. Union of India (appointment of Supreme Court and High Court judges), Sarojini
Ramaswamy v. Union of India14 (matters relating to procedure for the removal of judges of the
Supreme Court), where the Supreme Court has accommodated the writ petition under article
32 for enforcement of rights other than the fundamental rights.
Some other distinguishing features between the two articles include-

1. The High Court has the discretionary powers to issue writs under Article 226 however,
no such discretion is allowed under article 32 for the Supreme Court.
2. If a party has already approached the high court under article 226 to seek remedies for
their infringed right, the Supreme court of India cannot use its power under article 32.
If an appeal is filed before the apex court regarding a similar complaint and relief and
for the proceeding failed before the high court, it cannot use its original jurisdiction15
but continue on the appeal brough before instead of a fresh proceeding.
3. The Supreme court refrains from taking a new ground for the appeal and does not
participating in providing an action when a better remedy is provided by the High court
under article 226. Hence, a restraint is applied by the Supreme court on itself from
entertaining petitions under article 32, which is a practice that is habitually followed
now16.
13
AIR 1897 SC 597
14
AIR 1992 SC 2219
15
The Constitution of India, art. 131
16
Tilokchand Motichand v. H. B. Munshi, Commissioner of Sales Tax, AIR 1970 SC 898
10
4. The Supreme Court under Article 32 has a larger territorial jurisdiction, as the five writs
can be issued all over the country, in comparison to the High Court under Article 226,
where the court can issue writ only under its own jurisdiction.
5. At the time of emergency, Article 226 cannot be suspended under any circumstances.
On the contrary, Article 32 remains suspended at the announcement of emergency by
the President.
11
IV LIMITATIONS OF ARTICLE 32 AND 226
Limitations of Article 32 and 226
The powers under Article 32 and 226 are unfettered and independent for using any kind of writ
under its jurisdiction. there are no limitations imposed upon it by law, per say, but the High
Court under Article 226 exercises certain self-imposed limitations. These limitations are not
governed by the rule of law but imposed for the ease of the judges to dispose of the cases and
decide as to how the discretion of the court will be applied. The court has the discretion to
refuse the issues of orders of all writs other than Habeas Corpus, which is issued as “of right”,
even when it is proved that the grounds for such writs exist17.
Some such limitations are as follows:
1. Alternative Remedies
When there is a possibility of the existence of another remedy to the petitioner, he/ she is
required to take up such remedies instead of opting for writ jurisdiction. in the case of Steel Ltd
v. Kalyan and Har Shankar v. Dy. Excise Commissioner18, it was held that the High Court can
refuse the exercise of its jurisdiction to issue writs if there are grounds for the application of
other possible remedies to the litigant. But in the case of the infringement of Fundamental
Rights, it is the duty of the Supreme Court to issue an writ under Article 32 and provide relief
to him. Such cases are do not form part of the discretion of the court and cannot refuse relief
on the grant of an alternative remedy. Therefore, once it has been established by the petitioner
that there have been violation of the Fundamental Rights, the Court has to exercise it duty and
issue an appropriate writ under Article 3219, irrespective to the fact as to whether the petitioner
has an alternative remedy or not.
2. Laches or unreasonable delay

In the case of Durga Prasad v. Chief Controller, the court held that a writ petition should be
filed within a reasonable time from the date that the order had been challenged, or else the
petitioner will face the consequence of getting debarred from receiving relief of any form20.
17
Union of India v. T.R. Verma, AIR 1957 SC 882
18
1973(1) SCC 273; 1975(1) SCC 737
19
Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457
20
AIR 1970 SC 769
12
The court helps those who are vigilant and not those who sleep over their rights. When a party
is aggrieved due to the violation of their Fundamental rights, he/ she should move the court to
expedite their process of getting justice and not cause any unreasonable delays. Unreasonable
and inordinate delays give rise to a presumption of “abandonment of right to move the court”,
which can be detrimental to the rights of the parties seeking relief. However, these
presumptions of unreasonable delays can be rebutted before the court. There are no hard and
fast rule regarding the matters of delays and laches but the discretion lies upon the court,
referring to the circumstances and facts of the petition, to decide whether the writ petition
should be discarded on the grounds of laches or not21.
3. Res Judicata
In the landmark case of M.S.M. Sharma v. Krishan Sinha22, the Supreme court for the first time
held that the principle of Res Judicata23 applies to writ petition under Article 32. When a writ
petition filed before the Supreme Court or the High Court, has been dismissed on merits, then
the succeeding petitions cannot be challenged under the same cause action. The principle of
res judicata is also applicable when the party approaches the respective courts under Article 32
and 226. If the petition made by the aggrieved party is heard and rejected or approved, the same
matter cannot be brought before any other court in the form of a writ proceeding 24. However,
the petitioner can take the recourse of filing a fresh writ petition if it is proved that the previous
was rejected other than on merits.
4. Authorities against whom writs may be issued

Over the years, the range has been expanding over the matters as to against whom a writ petition
can be filed or issued. This expansion of judicial law has taken place to prevent the arbitrary
use of administrative powers which have an effect on the individual’s basic rights. The petition
for writs usually lie against public and statutory bodies or an individual vested with
administrative powers and public duty, however, writs can also be issued against private bodies
and individuals, but is it required to prove an exceptional situation in such cases. There are no
stated limitations or guidelines when it comes to filing writ petitions under Article 226 and 32
before the respective courts, against private company or persons. If it is proved that the a private
21
Mahadev Kalkar v. State Bank of Hyderabad, 1990(4) SCC 174
22
AIR 1960 SC 1186
23
Matter that is already adjudicated before the court
24
Daryao Singh v. State of UP, AIR 1961 SC 1457
13
body had infringed the Fundamental Rights of the aggrieved party, under Article 17, 23 and
24, he/ she has the valid ground to file the writ petition under the competent court/ courts.
5. Locus Standi
Locus Standi of the petitioner is a sine qua non for exercising the jurisdiction of the court25.
On the principle of certiorari, the court may use the concept of “aggrieved person” to make a
general principle stating that those whose rights have been violated should file a writ petition
before the court as Article 32 and 226 do not provide any strict definition as to who is entitled
to file writ petition for the enforcement of the Fundamental Rights. The courts have liberalized
this concept by allowing any person to move the courts, even by writing letters of the injustices
caused by arbitrary powers of authorities. This is done so that justice can be easily accessible,
convenient and free from cumbersome, for those sections of the society that lack the resources
to appear before the court. It acts as a powerful instrument for the justice-seeking citizens to
prevent exploitation and ensuring social and economic rights to the underprivileged and
marginalised sector of the society. As stated in the case of State of AP v. Parent of a student of
Medical College26, the liberalization of locus standi is “a highly effective weapon in the
armoury of law for reaching social justice to the common man.”
25
V.G. Ramachandran, Law of Writs, Eastern Book Company, Volume 1, Sixth Edition, 2002, p. 52.
26
AIR 1985 SC 910
14
V CONCLUSION
Conclusion
The Constitution of India is truly a living document as it provides for rights that are enforceable
in nature and safeguards the dignity and basic rights of the citizens. Part III, which are the
Fundamental Rights, are the most advanced set of freedoms and principles framed to enhance
the lives of individuals. Article 32 as rightly said by Dr. BR Ambedkar is the heart and soul of
the Constitution as it provides for remedies and reliefs to the people who have been infringed
of their rights. Article 226 works in the same capacity as Article 32 but is applicable in the
High Court.
The paper helped me to get a better grasp on the concepts of writs jurisdictions, their scope,
functions, distinctions and limitations. These prerogative writs are extremely necessary for the
proper functioning of our democracy, as citizens are the most important resources of a country
and their protection should be the outmost responsibility of the law. This paper provided me a
look in the various distinctions that the two articles possess although being similar in function.
Laws are meant to evolve over time and no law is made perfect, and Article 32 and 266 too
have their own limitations, hence, it is the duty of our courts to make amendment to these
articles so that they fit into the current trend and efficiently facilitate in the process of securing
justice. The liberalization of Article 32 and 226 is one such step taken in the process to make
them more approachable and accessible to the people.
15
WORKS CITED
Constitution of India 1950
V.G. Ramachandran, Law of Writs, (Eastern Book Company, Volume 1, Sixth Edition, 2002)
Justice Ashok Bhushan, “Bar To Writ Petitions In Context of Availability of Alternative

Remedies”, JTRI
Vijay Pal Dalmia and Aditya Dhar, “Legal Rights of Non-Citizens & Writ Jurisdiction of High
Court Under Article 226” Lexology, October. 5, 2020
Anuj Kumar, “Applicability & Scope of Article 32 of Constitution of India”, available at:
https://legaldesire.com/applicability-scope-of-article-32-of-constitution-of-india/ (last visited
on April 15, 2021)
Dr. Naresh, “Article 32: Scope and Applicability” Vol. 8 Issue 1 IJRESS 520-531 (2018)
Ramanjeet, “Constitutional philosophy of Writs: A detailed analysis”, available at:

http://www.legalservicesindia.com/article/1885/Constitutional-philosophy-of-Writs:-A-
detailed-analysis.html (last visited on April 15, 2021)
Prof. Dr. Nishtha Jaswal and Dr. Lakhwinder Singh, “Judicial Activism in India”, BLR (2017)
Alice Jacob, “Laches: Denial of Judicial Relief Under Articles 32 and 226”, Vol. 16:3 The
Indian Law Institute (1974)
Jai Narain Sharma, Judicial review of administrative actions through writs Recent trends, Ch.
4 125-239, (Maharshi Dayanand University, 2005)
Vishal Singh, “The Comparative Study of Article 32 and 226 of the Constitution of India”
available at:
https://www.academia.edu/32186542/The_Comparative_Study_of_Articles_32_and_226_of_
the_Constitution_of_India (last visited on April 16, 2021)
16

Administrative Discretion and Remedies

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Administrative Discretion and Remedies

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Meaning and Definition of Administrative Discretion

Administrative Discretion is defined as the discretion given to the administrative authorities to

“When we speak of administrative discretion, we mean that a determination must be reached,

In black law’s dictionary , administrative discretion would be a public official’s or agency’s

THE NEED OF ADMINISTRATIVE DISCRETION

 Whether rule are according to general object of the act.

JUDICIAL CONTROL OVER ADMINISTRATIVE DISCRETION

 It is ultra vires to the Constitution of India, and

PROCEDURAL AND EXECUTIVE CONTROL

i. Pre publication and consultation with an expert authority,

i.Scheme of the Act.

Writ of Habeas Corpus

ADM Jabalpur v. Shivkant Shukla

University of Mysore v. Govinda Rao

Satyanarayan Sinha v. Lal & Co.

Grounds for exercise of Writ Jurisdiction

The expression ‘Mandamus’ is a Latin term which means “ We Command”. Mandamus is a

(a) Lack of jurisdiction

(ii) Jurisdictional facts;

(iv) Error of law apparent on the face of record

(v) Abuse of jurisdiction

Further, Mandamus will not be granted against the following persons:

The writ of prohibition can be issued on the following grounds:

(ii) Violation of the principles of natural justice;

(iii) Unconstitutionality of a Statute;

(iv) Infraction of Fundamental Rights

(ii) Having legal authority;

(iii) To determine questions affecting the rights of subjects;

(iv) Having the duty to act judicially;

(v) Act in excess of legal authority

The grounds on which the writ of certiorari may be issued are:

(i) Lack of jurisdiction

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

d. Violation of principles of natural justice

Exclusion of Judicial Review/ Finality Clause

Administrative Finality on Judicial Review

Finality clauses in India

WRIT JURISDICTION: SCOPE AND LIMITATIONS FACED

Gopika Thakur, Bennett University, Greater Noida

II ARTICLE 32 AND 226: SCOPE AND FUNCTIONS

Article 32 and 226 : Scope and Functions

The 5 types of writs are as follows-

III DISTINCTION BETWEEN ARTICLE 32 AND 226

Distinction between Article 32 and 226

Some other distinguishing features between the two articles include-

IV LIMITATIONS OF ARTICLE 32 AND 226

Limitations of Article 32 and 226

2. Laches or unreasonable delay

4. Authorities against whom writs may be issued

Constitution of India 1950

Justice Ashok Bhushan, “Bar To Writ Petitions In Context of Availability of Alternative

Ramanjeet, “Constitutional philosophy of Writs: A detailed analysis”, available at:

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