THE NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL

ADMINISTRATIVE LAW

VII SEMESTER

PROJECT

ON

WRITS

SUBMITTED BY: SUBMITTED TO:

Karan Sharma Ass. Prof. Dr. Sushma Sharma

2018BA.LLB. (HONS) 17
 TABLE OF CONTENTS

TABLE OF CONTENTS.............................................................................................................2

ACKNOWLEDGEMENT............................................................................................................3

STATEMENT OF PROBLEM....................................................................................................4

RESEARCH METHODOLOGY.................................................................................................4

RESEARCH OBJECTIVES.........................................................................................................4

RESEARCH QUESTIONS..........................................................................................................4

HYPOTHESIS..............................................................................................................................5

REVIEW OF LITERATURE.......................................................................................................5

INTRODUCTION........................................................................................................................7

SEPARATION OF POWERS BETWEEN THE JUDICIARY AND THE EXECUTIVE.........8

Provisions of Constitution:.....................................................................................................................8
Other Laws.............................................................................................................................................9
Against whom a Writ can be Issued........................................................................................................9

WRIT: A PUBLIC REMEDY....................................................................................................11

The duty to give reasons:......................................................................................................................13

DIFFERENT WRITS: THEIR APPLICABILITY AND LIMITATIONS................................15

Habeas Corpus......................................................................................................................................15
Prohibition............................................................................................................................................15
Certiorari..............................................................................................................................................15
Mandamus............................................................................................................................................17
Quo warranto........................................................................................................................................18

Conclusion..................................................................................................................................19

Bibliography...............................................................................................................................20
 ACKNOWLEDGEMENT

The project has been made possible by the unconditional support of many people. I would like
to acknowledge and extend my heartfelt gratitude to Ass. Prof. Dr. Sushma Sharma for guiding
me throughout the development of this paper into a coherent whole by providing helpful insights
and sharing her brilliant expertise. I would also like to thank the officials of the Gyan Mandir,
NLIU for helping us to find the appropriate research material for this study.

I am deeply indebted to my parents, seniors and friends for all the moral support and
encouragement.

Karan Sharma

2018BA.LLB 17
 STATEMENT OF PROBLEM

Separation of powers has been the important concept of modern democracy. This has been
considered as one of the basic principles of democratic governance, thus there has to be
administrative independence from judicial review by the ordinary Courts. Generally, there are
three wings performing three different functions: Legislature, Executive and Judiciary. At the
same time, if these three wings are totally independent of each other, then there would be no
protection against the tyranny of the administrative wing. Due to this, now the Courts have been
empowered with the power of judicial review of the administrative actions

RESEARCH METHODOLOGY

The researchers have utilized qualitative data. The researchers adopted a doctrinal mode of
research for this paper. The style of writing in this paper is primarily analytical as the researcher
has tried to identify and discuss the main issues of the concerned law; this has been fused with a
descriptive mode of writing wherever necessary.

RESEARCH OBJECTIVES

The basic aim of this project is to study the significance of writs in administrative actions. Also,
the paper tries to critically understand the deeper importance of writs in the current scenario by
highlighting the various interpretations taken by the courts.

RESEARCH QUESTIONS

1. What is the need for writs?

2. What are the various provisions in Indian Constitution which provides for issuing writs?
3. Against whom can a writ be issued?
4. What are the various remedies of writs owing to various administrative actions?
5. What are the limitations and applications of various writs?.
 HYPOTHESIS

The Researcher has formulated the following hypothesis, the validity of which will be tested in
the course of Research work:

The Courts cannot validate any order that has been unauthorized and invalid in nature, or where
principles of natural justice are not followed, as violation of the same are now construed as
violation of the Constitution itself

REVIEW OF LITERATURE
BOOKS

WILLIAM WADE & C. F. FORSYTH, ADMINISTRATIVE LAW, 11THED. OXFORD

UNIVERSITY PRESS; 2014

THIS BOOK HELPS ME TO BASIC UNDERSTATING OF THE ADMINISTRATIVE LAW AND WITH THE
HELP OF THIS BOOK I AM ABLE TO WRITE AN INTRODUCTORY PART AS WELL AS KNOW ABOUT
THE IMPORTANCE OF SUBJECT HOW IT IS DIFFERENT FROM THE CONSTITUTIONAL LAW, WHAT IS
ITS MAIN OBJECT ALONG WITH HOW THIS SUBJECT IS WORKING IN THE IMPLEMENTATION OF
LAW.

C. K. THAKKER, ADMINISTRATIVE LAW, 2ND ED. EBC; LUCKNOW; 2012

IN THIS BOOK AUTHOR HAS TRIED COVER POSSIBLE ASPECTS OF ADMINISTRATIVE LAW IN
VEERY LUCID LANGUAGE FOR THE BEGINNERS THIS BOOK REALLY HELPFUL TO UNDERSTAND
THE BASICS OF ADMINISTRATIVE LAW.

S.P. SATHE, ADMINISTRATIVE LAW, 1ST ED. LEXIS NEXIS; MUMBAI; 2010

WITH THE HELP OF THIS BOOK I AM ABLE LINK PROJECT TOPIC THAT IS RIGHT TO INFORMATION
WITH ADMINISTRATIVE LAW AND HOW THIS RIGHT TO INFORMATION IS PLAYING A ROLE IN
IMPLEMENTATION OF LAW.

TABLE OF CASES

INDIAN CASES

 Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487

 Central Inland Water Transport Corporation Limited v. Brojo Nath, AIR 1986 SC 1571
  Champa Kumari Singhi and another v. The Member Board of Revenue, West Bengal and
others, (1970) 1 SCC 404.

 Dwarka Nath v. Income Tax Officer, Special Circle, D Ward, Kanpur and another, AIR
1966 SC 81.
 Gurbachan Singh and another v. Union of India and another, (1996) 3 SCC 117.
 Indian Express Newspapers (Bombay) Private Limited v. Union of India, AIR 1986 SC
546.
 Isha Beevi and others v. Tax Recovery Officer and others, AIR 1975 SC 2135.
 I.M Chockalingam v. Commissioner of Income Tax, Madras, AIR 1963 SC 1456.
 Minerva Talkies, Bangalore v. State of Karnataka, AIR 1988 SC 526.
 Satish Chandra and another v. Registrar of Co-operatives Societies, Delhi and others,
(1994) 4 SCC 332.

 Smt. Rakanyadevi v. The State of Karnataka, AIR 1980 Kant 182.

 State of Maharashtra v. Salem Hasan Khan, (1989) 2 SCC 317.
 State of Gujarat v. Ambalal, AIR 1976 SC 2001.

FOREIGN CASES

 R v. Criminal Injuries Compensation Board, Ex Parte Lain, [1967] 2 All ER 770.

 R v. London Borough Council of Hillington, ex parte Royco Homes Ltd., [1974] 2 All
ER 643.
 In re Gilmore’s Application, [1957] 1 All ER 796.
 R v. Electricity Commissioners, ex.p.London Electricity Joint Committee (1920) Limited,
(1924) 93 L.J.K. 390

 R v. Paddington Valuation Officer and another, ex parte Peachey Property Corporation,

Ltd., [1965] 2 All ER 836.
 Ex Parte Fry, [1954] 2 All ER 118.
 R v. Metropolitan Magistrate, Ex Parte Blackburn, [1968] 1 All ER 763.
 R v. Askaw and others, (1768) 4 Burrow 2186, as cited in Supra note 55, at 379.

TABLE OF STATUTES

 Constitution of India, 1950.

 INTRODUCTION

The main point of distinction between administrative law and all other laws is the
extent of its application, and control that is exercised by the Courts over these power of the
administrative bodies when they are related to the citizens. This may be regulated by
ordinary Courts or with the Courts having special jurisdiction over such matters.1

It has always been claimed that when the rights of the government are widely
stressed then there is a threat to the rights of the individuals. The fundamental rights are
restricted through the usage of “public order” or that of the “due process of law”, and in
these cases the Courts may or may not have the jurisdiction to look into the matter as to
whether there is a violation of such rights or not.2

Separation of powers has been the important concept of modern democracy. This
has been considered as one of the basic principles of democratic governance, thus there has
to be administrative independence from judicial review by the ordinary Courts. Generally,
there are three wings performing three different functions: Legislature, Executive and
Judiciary. At the same time, if these three wings are totally independent of each other, then
there would be no protection against the tyranny of the administrative wing. Due to this,
now the Courts have been empowered with the power of judicial review of the
administrative actions.3
Administrative law provides for a mechanism to control the administration by an
outside agency so that there is no injustice done to the individual, as well as there is enough
freedom for the administration to operate independent of any other body. Due to the
increasing powers of the state it has been observed by Lord Denning that, “properly
exercised the new powers of the executive lead to a Welfare State, but abused they lead to
the Totalitarian State”. There are for the same purpose many remedies that are available
with the aggrieved individual, and a significant one among them is that of the prerogative
1
O. Hood Phillips and Paul Jackson, O. Hood Phillip’s Constitutional and Administrative Law (6th ed., London: Sweet
and Maxwell, 1978) at 11.
2
Id, at 16.
3
Eric Barendt, “Separation of Powers and Constitutional Government”, [1995] P.L. 599. Indian Express
Newspapers (Bombay) Private Limited v. Union of India, AIR 1986 SC 546. The Central Government issued an order
under s.25 of Customs Act, 1962, withdrawing all the exemptions that were granted to the newspaper from the
customs duty. Due to this there was heavy burden on the newspaper, as not only the duty exemption was
removed, there was a positive increase in the same. Such a withdrawal was challenged under Art.32 on the
ground that there was a restriction placed on the fundamental right of freedom of speech and expression
guaranteed under Art.19 (1)(a). The Court looked into the fact whether such an order was within the purview of
the powers that are granted to the executive or not? After the consideration of all the relevant factors, the Court
came to the conclusion that the government should have a reconsider the order of removing the exemption.
 writs.4

SEPARATION OF POWERS BETWEEN THE JUDICIARY

AND THE EXECUTIVE

The judicial control over administrative activities is fairly wide and it continues to expand.
Supreme Courts and High Courts exercise their jurisdiction through the traditional writs. The
composition and structure of the judiciary gives it the capacity to remain independent. The
judges in India are not elected and their tenures are fixed and their salaries are also not subject
to popular votes.5 In a democracy like India the judiciary is instituted as the sole arbiter of the
constitution, the authoritative interpreter of the will of the people and the sovereign protector of
the freedom and liberty.6 It is the ultimate authority to restrain any exercise of absolute and
arbitrary power by administrative bodies.7

Provisions of Constitution:

The devise for judicial review has been enacted in Article 13 clause 1 and 2 of the Constitution
of India.8 This protection goes much beyond protecting fundamental rights and includes the
administrative excesses by the administrative authorities and tribunals. 9 Article 32 which was
called the “very soul and heart” of the constitution by Dr. Ambedkar empowers the Supreme
Court to issue any writ, order or direction for the enforcement of fundamental rights. As a
general rule a person whose fundamental rights are violated can apply to the Supreme Court
under Article 32 of the Constitution of India and generally the rights that could be enforced
under Article 32 must be the rights of the petitioner himself who complaints’ of infraction of
such rights and approaches the court for relief.10

4
C.K.Takwani, Lectures on Administrative Law (3rd ed., Lucknow: Eastern Book Company, 1998) at 289.
5
Paras Diwan, Towards New Desposition?(Allahabad: Allahabad Law Agency, 1992) at 172.
6
Id at 173.
7
M.P.Jain and S.N.Jain, Principles of Administrative Law (Agra: Wadhwa and Company Law Publishers, 1986) at
315.

8
“All laws in force in the territory of India immediately before the commencement of the constitution, in so far as
they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.” Article 13
Clause 2. “The State shall not make any law which takes away or abridges the rights conferred by the Part and any
law made in contravention, be void.” Article 13 Clause 2, Constitution of India, 1950.
9
Supra note 3, at 175.
10
Article 32, Constitution of India, 1950.
 The same principle applies to the exercise of jurisdiction under Article 226 by the High Court.
The writ jurisdiction of the High Court under Article 226 is fairly comprehensive. 11 The reason
for conferring this jurisdiction on the High Court was to provide a quick and inexpensive
remedy for the enforcement of rights. The provisions of Article 226 were interpreted to contain
two fold limitations: the writs issued by a High Court could not run beyond its territorial
jurisdiction and the person or the authority to whom the writ etc. was issued must be within
those territories. However the 15th amendment brought positive changes to Article 226 by
inserting clause (1A) under which the jurisdiction conferred on the High Court was based on
the basis of cause of action.12

Other Laws

Also Section 45 of the Specific Relief Act 1887 authorises courts to make orders requiring any
specific act to be done by any person holding a public office, whether of permanent or
temporary nature, or by nay corporation or inferior court of jurisdiction. 13 Under section 491 of
the Old Criminal Procedure Code, a direction in the nature of a writ of habeas corpus could be
issued whenever an individual was detained illegally by the government or by any individual.
This provision too was repealed in view of the Superior provision in Articles 32 and 226 of the
Constitution.14

Against whom a Writ can be Issued

While deciding whether a writ would lie in given circumstances, the first injury to be made is
against whom a writ can be issued. Ordinarily a writ will lie against the State and statutory
bodies and persons charged with public duties. Though private parties are not immune from the
writ jurisdiction of the Supreme Court as well as High Court, issuance of a writ to them would
require exceptional circumstances.

State:

11
Article 226, Constitution of India, 1950.
12
Supra note 3, at 177.
13
Supra note 3, at 178.
14
Supra note 3, at176.
 Following are the tests that have been evolved to ascertain whether an institution is
an instrumentality of the State15:

 The financial resources of the state are the main funding resource for such a body;
 The functions of such a body should be similar to that of the government;
 The plenary control over the body should be with the government;
 Some element or authority should vest with the government.

As a general rule a writ lies against all those bodies that are clothed as state under
the Art.12 of the Constitution, as well as statutory authorities which are the instrumentalities
of the state.1617 Following are the tests that have been evolved to ascertain whether an
institution is an instrumentality of the State18:

 The financial resources of the state are the main funding resource for such a body;
 The functions of such a body should be similar to that of the government;
 The plenary control over the body should be with the government;
 Some element or authority should vest with the government.
The definition is inclusive and thus includes:

 The Government and Parliament of India;

 The Government and the Legislature of each of the States;
 All local or other authorities within the territory of India and
 All local or other authorities under the control of the Government of India.19

The state consists of three organs 1) the legislature 2) the executive and 3) the Judiciary.
Therefore as a general rule, a writ may be issued against the Parliament or the legislature, the
Executive or the Government; the Judiciary or the courts and local or other authorities.20

15
Supra note 43, at 424.
16
Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487.
17
“In this part, unless the context otherwise requires, “the state” includes the Government and Parliament of India
and the Government and the Legislature of each of the States and all local or other authorities within the territory
of India or under the control of the Government of India” Article12, Constitution of India, 1950.
18
Supra note 43, at 424.
19
Supra note 1, at 387.
20
Supra note 1, at 387.
 WRIT: A PUBLIC REMEDY

The importance of the writ jurisdiction has been very clearly identified by Chandrachud
CJ as follows:

“The jurisdiction conferred on the Supreme Court by Art.32 is an important part of

the basic structure of the Constitution because it is meaningless to confer
fundamental rights without providing an effective remedy for their enforcement, if
and when they are violated.”

The recourse that is taken in England and in India when there is some wrong done
by one citizen to another is that of the Courts, the same is followed when the person is
aggrieved by the decisions of the administrative authorities. These are generally in the form
of writs21 and they are as follows: certiorari, prohibition, mandamus, and others22. There are
certain powers that have been vested with the Courts to see to the fact that the public
authorities do not exceed their powers and for this purpose there are various remedies that
are available with the Courts.23

Generally there is a discretion that is provided with the administrative bodies to

exercise their powers, and there is a parliamentary of administrative sanction behind such
discretion of the powers; in case there is no discretion then the power has to be exercised in
a prescribed manner. In the latter case it becomes the duty of the officer to perform such
required function, but this duty is generally enforceable through private initiative. The
Courts have the power to determine as to the fact that whether or not the power was
exercised in a proper fashion, as being authorised by law24. Also the Courts are empowered
21
There was the concept of the “Prerogative writs’ that could be brought by the King against his officers to ensure
that they are performing their functions properly. There are certain restrictions that have been placed before
these writs can be used except the writ of Habeas corpus, such are enumerated as follows:
 It has a particular procedure that cannot be used along with any other kind of remedy like that of
damages or injunction;
 It can be obtained at the discretion of the Court if the case is shown to be fit enough for the writ to be
issued;
 There is a time limit for the writ of certiorari.
Supra note 2, at 620.
22
Garner’s Administrative Law (B.L.Jones ed., 7th ed., London: Butterworths, 1989) at 107.
23
These writs are discretionary in nature for the Courts to issue. Rt. Hon. Sir Thomas Bingham, “Should Public law
remedies be discretionary”, [1991] P.L. 64.
24
Minerva Talkies, Bangalore v. State of Karnataka, AIR 1988 SC 526. Under the Karnataka Cinemas (Regulation)
Act, 1964, there were rules that were framed by the State government that placed a restriction on the number of
shows to only four shows in a day. This restriction was challenged in the High Court on the basis that the authority
did not had the power to frame such a rule, and needs to be quashed. State respondent with detailed studies that
explained as to the problems of having more then fours shows a day, and that they had a negative impact on the
hygiene that has to be maintained by the cinema theatres, as well as the impact on the viewers. The Court looked
 to take necessary action when the power is not exercised in a proper manner, like there is a
violation of principles of natural justice, or when the act is illegal. The jurisdiction of the
Courts is not taken away by the fact that the rules were placed before and then sanctioned
by the Parliament. The main reason behind this is the fact that it is the rules that have been
sanctioned by the Parliament and not the specific act taken by the concerned officer under
the act.25
Under the Indian Constitution the right to move to the SC for the enforcement of the
fundamental rights itself has become a guaranteed right, this is conditioned by the
proceedings that are provided for the enforcement of rights that are conferred under Part III
of the Constitution. Generally, the SC does not go into the questions of facts under this
provision, at the same time, there is no bar on the Court to do the same. Adding to that,
there is also a provision facilitating the applicant, the petition will not be thrown out simply
because appropriate remedy is not prayed for.26

Under Art.226, the challenge in the HC can look into not only violation of the
fundamental rights27, but also the challenges as to the validity of any law whose provisions
that may not have any direct impact upon the fundamental rights, but may have such an
impact as to restricting the fundamental rights.28

The power that is granted to the High Courts under Art.226 of the Constitution has
been considered as wider than that of Art.32 for the Supreme Court. The reasons for the
same are various like the widening of the scope by the use of the words like “for any other
purpose” thereby facilitating the enforcement of statutory as well as common law rights; if
any aggrieved person is unable to get the remedy at the High Court, then there still lies an
appeal to the Supreme Court against such a decision; at the same time the writ that has been
decided by the High Courts on merits and by giving a speaking order would bar the same

into the fact that the Act also provided for the policy that had to be followed by the authorities while framing the
rules, and they were much wider then merely restricting the number of shows in a day, and held that the
restriction was valid in nature. See also, Smt. Rakanyadevi v. The State of Karnataka, AIR 1980 Kant 182.
25
Supra note 2, at 595.
26
V.N.Shukla’s Constitution of India (M.P.Singh ed., 9th ed., Lucknow: Eastern Book Company, 1998) at 277-9.
27
Central Inland Water Transport Corporation Limited v. Brojo Nath, AIR 1986 SC 1571. There was a set of rules
that were governing the activities of the Corporation and they provided that the corporation would have the
power to terminate the services of any employee on a notice of three months or after the payment of the salary
for the three months along with all the perks that are given to the employees. This rule was challenged as
arbitrary and would empower to discriminate between the employees as well, there was no fair chance for the
employees to present their own case. Though the corporation may have hundreds of applicants waiting for the
job, there were no hundreds of jobs that were waiting for the person so removed from the office. When the
jurisdiction of the High Court was invoked under Art.226 challenging the arbitrariness of the rule, the Court upheld
the contention and held that the rule violates Art.14 of the Constitution.
28
Id at 283.
 parties to move to the Supreme Court seeking the same remedy due to the principle of res
judicata. 29

At the same time, following conditions need to be fulfilled before the writ is sought
from the SC/HC30:

 All local remedies should have been exhausted;

 All statutory remedies should have been exhausted;
 There should be no application of the principle of (constructive) res judicata.
By the 42nd amendment to the Constitution in 1976, there were far reaching changes
that were made, which stated that only Supreme Court would look into the validity of the
Central laws, and was barred from entertaining the challenges as to the validity of the State
laws under Art.32 of the Constitution. Thus there was clear division as to the matters
between both the Courts, and was done to expedite the matters31.

There also arises the question of locus standii as to the filing of the writ petition
challenging the order of the administrative authorities.32 In such cases the right that has been
violated should be an individual right of the person so aggrieved by the order, or whose
rights have been finally decided by the Court, or violation of any of the fundamental rights
that are conferred by the Constitution. Still, there has been an extension of the principle of
locus standii as far as the enforcement of fundamental rights are concerned. 33

The duty to give reasons:

There arises another question before there can be any judicial review of the actions that are
taken by the executive, and that is, is the executive bound to give reasons for the decisions that
are taken by them? There are two views as to the same, according to broad one, reasons have to
be given for any decision that is taken by the executive. According to the narrow view, reasons

29
S.P.Sathe, Administrative Law (6th ed., New Delhi: Butterworths, 1999) at 363.
30
Satish Chandra and another v. Registrar of Co-operatives Societies, Delhi and others, (1994) 4 SCC 332. In this
case it was also held that it was not a fundamental right to be a member of a co-operative society.
31
Id at 375.
32
This has to be differentiated from the provision of appeal to the HC that is provided by the statute itself. See for
example, s.173, Motor Vehicles Act, 1988. It has been held that when there is a provision for the alternate
remedy, then the writ would not be admitted. Gurbachan Singh and another v. Union of India and another, (1996)
3 SCC 117.
33
Supra note 43, at 401.
should be accorded only for the decisions that are serious in nature, and when it is necessary for
the aggrieved person to know the reason as to whether the conclusion was reasonable or not. At
the end, it can be stated that the reasons should be given in the following circumstances34:

 Where the conclusion is prima facie unreasonable;

 Prima facie unlawful;
 Where there is conflict of evidence, and it is not clear as to which evidence has been
relied upon.
By stating reasons, the Courts have ensured that there is application of mind by the executive
before the decision has been given35. It is observed by many that judicial review is one of the
most important factors that have contributed to the control of the administrative authorities.36

34
N.R.Campbell, “The duty to give reasons in administrative law”, [1994] P.L. 184.
35
State of Maharashtra v. Salem Hasan Khan, (1989) 2 SCC 317. Respondent was served with the orders of
externment from two of the districts of Maharashtra and the reason that was associated with the same was that
he was involved in various illegal activities, as well as riots. He alleged that as the order of the State government
was without any reasons, it should be held as void and thus the Court should quash the order of the government.
It was held by the High Court that absence of reasons indicated that there was no application of mind by the State
government. The Supreme Court reversed this decision of the High Court on the ground that in such cases giving
of reasons would go against the purpose of such powers with the state government. It also stated that it was
sufficient that the material allegations were placed before him.
36
Soli J.Sorabjee, “Obliging Government to control itself: Developments in Indian Administrative Law”, [1994] P.L.
39.
 DIFFERENT WRITS: THEIR APPLICABILITY AND
LIMITATIONS

Habeas Corpus

This is a writ in nature of an order that calls upon the person who has detained another person to
produce the latter before the Court so that it examined that whether the detention has been legal
or otherwise, and in case of latter, to release the person so illegally detained. 37 Due to individual
liberty that is attached to the habeas corpus petition, the principle of res judicata is not strictly
applicable. Also that the rules as to locus standii is also very liberal with respect to this writ of
habeas corpus.

Prohibition

This writ is sought when the administrative process is still in motion. This is applicable for any
authority discharging judicial functions.38This would be granted by the superior Court (HC/SC)
so as to restrict the inferior agency from exceeding or abusing powers. This application should
be brought before the action is already taken place, as after the action has taken place, it will be
the writ of certiorari that would be more effective remedy, and this would be explained in the
next section.39

Certiorari

This writ is the mechanism through which the superior Court is able to restrict the use of power
by the sub-ordinate judiciary. For the exercise of the same, the records are called from the sub-
ordinate judiciary to the superior Courts and then the legal inquiry would be made as to the
validity of the decision that is taken by the Court. If such proceedings were found to be illegal,
and then the same would be quashed.40

37
Supra note 43, at 427.
38
Supra note 43, at 429. For the same, the applicant has to prove that there is total absence of jurisdiction with
the concerned authority and ought to be stopped at the earliest. Isha Beevi and others v. Tax Recovery Officer and
others, AIR 1975 SC 2135.
39
Supra note 38, at 222.
40
Supra note 38, at 217.
 Certiorari is a discretionary remedy41, and the same is granted on the conduct being
on merit, thus the same would not be granted where very technical matters are taken up. At
the same time, before applying for this remedy all local remedies have to be exhausted. It
would be granted when there is no equally effective remedy.42

This writ is sought to quash the proceedings that already have taken place. This is
applied in cases where the authority is discharging the quasi-judicial functions43. This is not
applicable against the proceeding in the civil Court, but only to the proceedings of a
tribunal.44 The scope of this writ has been widening and in England it is extended to
licensing authorities, board of education, local planning authority 45, local legal aid
committee, medical appeal tribunal46, the registrar of companies, and the revenue board.47

Both the remedies of prohibition and certiorari can be applied simultaneously, in

which case prohibition may be sought to stop the administrative tribunal from exceeding the
jurisdiction, and also to quash the order that are already have been given by the tribunal.48

Summarising the same, grounds of awarding writ of certiorari are as follows:

a) Lack of jurisdiction;

b) There is error of law on the face of the record49;

c) There is violation of the principles of natural justice.

41
It has been held that the writ of certiorari is a discretionary remedy, and cannot be claimed as a matter of right,
for the same there has to be sufficient grounds for the issue of writ. This was the case where the authorities
decided not to maintain a particular road, and the residents objected this. They claimed that this was decided
without taking into consideration the objections that were raised by the residents. This unilateral decision by the
authorities was annulled by the Court using the writ of Certiorari in the case of R v. Justices of Surrey, (1870) 39
L.J.M.C 145, as cited in O. Hood Phillips, Leading cases and administrative law (3rd ed., London: Sweet and
Maxwell, 1967) at 359.
42
Supra note 38, at 220.
43
R v. Criminal Injuries Compensation Board, Ex Parte Lain, [1967] 2 All ER 770. In this case, the writ was issued
due to the fact the respondent body was a quasi-judicial body deciding as to the compensation of the constable
who died while on duty. Dwarka Nath v. Income Tax Officer, Special Circle, D Ward, Kanpur and another, AIR 1966
SC 81.
44
Supra note 43, at 429.
45
R v. London Borough Council of Hillington, ex parte Royco Homes Ltd., [1974] 2 All ER 643.
46
In re Gilmore’s Application, [1957] 1 All ER 796.
47
Supra note 38, at 218. Champa Kumari Singhi and another v. The Member Board of Revenue, West Bengal and
others, (1970) 1 SCC 404, where the writ was filed for quashing the decision of the revenue board and prohibiting
them to issue recovery certificates.
48
R v. Electricity Commissioners, ex.p.London Electricity Joint Committee (1920) Limited, (1924) 93 L.J.K. 390, as
cited in Supra note 55, at 361. In this case the petitioners challenged the powers that were conferred on the
Electricity Commissioners to delegate their powers.
49
R v. Paddington Valuation Officer and another, ex parte Peachey Property Corporation, Ltd., [1965] 2 All ER 836.
At the same time, this writ would not lay in the matters that are about the internal discipline of the administrative
body. Ex Parte Fry, [1954] 2 All ER 118.
 d) Such authority should be exercising quasi-judicial function;
e) Such a decision should be binding on the parties between whom the matter is
decided.

Mandamus

“The Crown is bound neither to deny justice to anybody, nor to delay anybody in obtaining
justice. If therefore, there is no other means of obtaining justice, the writ of Mandamus is
granted to enable justice to be done.”

The penalty for disobedience in such cases is contempt of Court. The order may be issued
to any person or body to carry on the public duty, thus it is a residuary remedy that has to be
applied when all other remedies would not be successful50.
The applicant must have a legal right that is sought to enforce through the writ. This
writ would not be issued where the matter is at the discretion of the authority. Thus, the
applicant must have a legal right of performance of a legal duty, and that duty must be
towards the person seeking such a remedy. At the same time, this writ would not be issued
in the anticipation of injury.51 This writ commands the person against whom it is issued to
perform a public duty that is imposed by law, as the need for this writ arises when the
legally required action is not taken by the concerned authorities 52. This duty to act may arise
from the statute or otherwise too. This can be issued to bodies that exercise discretionary
power, or to have proper consideration of the matter 53, and in cases of abuses, to use the
same properly.54

50
Supra note 2, at 623.
51
Supra note 43, at 432.
52
When the law provided that the authorities should take action when there was a complaint made by any citizen
as to gaming in the locality. When there was no such action taken after there were repeated complaints that were
filed by the petitioner at various levels, there would lay the writ of mandamus. The reason being that the
concerned authorities had failed to perform their statutory duty. R v. Metropolitan Magistrate, Ex Parte
Blackburn, [1968] 1 All ER 763.
53
The Court cannot direct the college to select a particular person, but may direct the authorities to apply the
discretion in a proper fashion. This facilitates that there is no arbitrary use of power. R v. Askaw and others, (1768)
4 Burrow 2186, as cited in Supra note 55, at 379.
54
Supra note 38, at 226.
Quo warranto

This writ leads to an enquiry in which it is ascertained as to whether the person holding an
independent substantive office has any legal right or not to hold such office, franchise, or
liberty55. If it were found that particular person does not have the authority to hold the office,
then this writ would oust the person from the office. The locus standii in case of this writ is
more liberal, and is treated as analogous to the public interest litigation, as only a competent
person should hold the office.

55
Supra note 43, at 438.
 CONCLUSION

It has been held by the Supreme Court that any restriction that is placed upon the fundamental
rights without hearing is a jurisdictional error. The Courts cannot validate any order that has
been unauthorised and invalid in nature, or where principles of natural justice are not followed,
as violation of the same are now construed as violation of the Constitution itself 56. There are
many matters that are brought before the Courts that are related to the administrative actions,
and there is a requirement of judicial review. 57 Moreover, in a democracy like India the
judiciary is instituted as the sole arbiter of the constitution, the authoritative interpreter of the
will of the people and the sovereign protector of the freedom and liberty. 58 It is the ultimate
authority to restrain any exercise of absolute and arbitrary power by administrative bodies.

It also became clear that the remedy of writs is taken by the aggrieved parties when
there is no other remedy that is either provided by the Act or otherwise by any other law.
Also that this plays an important role in keeping the administrative bodies under control as
they remain accountable for the decisions that are taken by them. This facilitates the smooth
governance as well, ensuring that there remains a remedy for those who are aggrieved by
the decision that are taken by the executive and has an impact upon the exercise of the
fundamental rights.

56
State of Gujarat v. Ambalal, AIR 1976 SC 2001. There was acquisition of land by the government for the
purposes of industrial estate for the small-scale industries. For the same notification was issued by the
government under the Land Acquisition Act, 1894. The respondents were contesting the notifications that were
issued by the government, as they did not provide for right to be heard for the aggrieved parties, and thus, the
principles of natural justice were not followed. To this end the respondents had filed the writ petitions in the High
Court of Gujarat, which allowed the petitions and set aside the notification, and issued a mandamus commanding.
The reason being that there was violation of the principles of natural justice that are now considered as part of
the Constitution. Supreme Court also held that such rules have to be in conformity with the principles of natural
justice. See also I.M Chockalingam v. Commissioner of Income Tax, Madras, AIR 1963 SC 1456.
57
M.P.Singh, “Administrative Action in violation of Natural justice affecting fundamental rights: Void or voidable”,
(1979) 2 SCC (Jour) 1.
58
Id at 173.
 BIBLIOGRAPHY
 ARTICLES:

I. M.P.Singh, “Administrative Action in violation of Natural justice affecting

fundamental rights: Void or voidable”, (1979) 2 SCC (Jour) 1.
II. N.R.Campbell, “The duty to give reasons in administrative law”, [1994] P.L. 184.
III. Rt. Hon. Sir Thomas Bingham, “Should Public law remedies be discretionary”,
[1991] P.L. 64.
IV. Soli J.Sorabjee, “Obliging Government to control itself: Developments in Indian
Administrative Law”, [1994] P.L. 39.
V. Eric Barendt, “Separation of Powers and Constitutional Government”, [1995] P.L. 599.

 BOOKS:
I. C.K.Takwani, Lectures on Administrative Law (3rd ed., Lucknow: Eastern Book
Company, 1998) at 289.
II. O. Hood Phillips, Leading cases and administrative law (3rd ed., London: Sweet and
Maxwell, 1967) at 359.
III. O. Hood Phillips and Paul Jackson, O. Hood Phillip’s Constitutional and Administrative
Law (6th ed., London: Sweet and Maxwell, 1978) at 11
IV. Garner’s Administrative Law (B.L.Jones ed., 7th ed., London: Butterworths,
1989) at 107.
V. M.P.Jain and S.N.Jain, Principles of Administrative Law (Agra: Wadhwa and
Company Law Publishers, 1986) at 315.
VI. Paras Diwan, Towards New Desposition?(Allahabad: Allahabad Law Agency,
1992) at 172.
VII. S.P.Sathe, Administrative Law (6th ed., New Delhi: Butterworths, 1999) at 363.
VIII. V.N.Shukla’s Constitution of India (M.P.Singh ed., 9th ed., Lucknow: Eastern Book
Company, 1998) at 277-9.

 ONLINE SOURCES:

I. www.jstor.org
II. www.scholar.google.com