PRINCIPLES OF WRIT

Can Writ jurisdiction be invoked for any case?

The straightaway answer is NO. Judicial interpretations over the years have played a
major role in determining the contours of writ jurisdiction in practice, especially in the
context of Article 226. The biggest reason for this is that Article 226 is phrased in rather a
broad language, as it refers to fundamental rights and any other purpose. Not only that, but
courts also have to clarify that any other purpose only referred to situations where a legal
right existed. They also had to clarify that a jurisdiction is not a substitute for other dispute
resolution procedures prescribed by law.
For instance, the code of civil procedure contemplates civil courts as the forum for
filing suits and the Code of Criminal Procedure contemplates criminal courts as the forum for
hearing criminal cases.
If any other purpose were interpreted literally and without any limitation, one could
even argue that parties would be able to avail of the writ jurisdiction of High Court under
Article 226 for such civil and criminal cases as well.
This would lead to chaos. High courts would be overburdened, hearings would be
inefficient, and it would scarcely be possible to maintain any semblance of standardization of
the judicial procedure. As a result, courts have evolved a number of legal norms and
principles to decide when the exercise of writ jurisdiction is called for.

Principles of invoking writ jurisdiction

These are not established principles but only an indicative. The court may part away
from them if the cases demand.

Discretion
The first principle is that the grant of relief under Article 226 and Article 32 is at the
discretion of the courts. This may sound obvious, but the nuance is that although the right to
approach the Supreme Court under Article 32 is a fundamental right, the right does not
extend to having a right to be granted relief by the Supreme Court in each case of
fundamental rights violated.
Similarly, the right to approach high courts under Article 226 of the constitution of
India is a constitutional right. But the right does not extend to having the right to be granted
relief by a high court. In each case, a fundamental or other legal right has been violated.
Grant of relief involves the exercise of discretion by judges and the rest of the principals we
are concerned with are in essence, self-imposed judicial guidelines for the exercise of that
discretion.
The alternate, equally efficacious remedy test
The second principle is that courts will generally not exercise jurisdiction in a case
where the petitioner has an alternate, equally efficacious remedy at his or her disposal, as
we saw earlier, this is based on the idea that the jurisdiction is not a substitute for other
procedures provided by law for dispute resolution, such as criminal or civil trials. This is also
the reason why courts may be averse to exercising jurisdiction in cases that involve disputed
questions of fact. As we have discussed above that Article 226 provides for a discretionary
remedy and high court has the power to refuse the grant of any writ if its is satisfied that the
aggrieved party have adequate alternative remedy. Remedies provided under this article
can’t be used as a substitute for other remedies. So, therefore it can be said that a writ
under Article 226 can’t be issued by the High Court in the case where there exists an equal,
efficient and adequate alternative remedy unless there is any exceptional reason for dealing
the matter under Article 226.
Let us take an example to understand this principle. Better say you want to build a
shopping mall for which you enter into a contract with a Marble supplier to sell you marble
for your shopping mall, and then you breach that contract by not paying the agreed sale
price. The marble supplier could theoretically approach the high court under Article 226,
claiming that it can invoke its jurisdiction under the head of any other purpose. It could also,
of course, approach a civil court and file a civil suit seeking appropriate reliefs against you.
If the marble supplier approaches a high court under Article 226 in such
circumstances, the high court is likely to dismiss its petition on the preliminary ground that
an alternate, equally efficacious remedy is available. The marble supplier should exercise
those remedies instead of invoking Article 226. Let us take a another different example. The
government wants to construct two new roads and for which it enters into a contract with
the road construction contractor to do the job, and then the government breaches that
contract by not paying the agreed contract price. The Contractor could theoretically
approach the high court under Article 226, claiming that it can invoke its jurisdiction under
the head of any other purpose. It could also, of course, approach a civil court and file a civil
suit seeking appropriate reliefs against the government.

If the contractor approaches a high court under Article 226 in such circumstances, what is
the high court likely to do? Is this situation distinct from the previous situation? You may
wonder. A key point of distinction is that the defendant in a situation A is a private individual
and the defendant in A situation, B is the government.

Even so, it is likely that if this course of action raised by the cement supplier is merely a
breach of contract which can be agitated in a civil court, in a civil suit, the High Court would
still apply the principle that the contractor must exercise that alternate equally efficacious
remedy. Therefore, the mere fact that a claim is being made against the government does
not mean that the High Court must exercise its jurisdiction.

However, in the same example, if a few additional facts are added, the approach of the high
court may be different. Suppose the government plans to construct 10 new roads and as
part of one project and 10 different contractors have been engaged one for each new road.
The government pays the agreed contract price to nine out of 10 contractors in order to
fulfill its contractual obligations.

But the government’s official in charge has a personal agenda against the 10th contractor
because of which he has deliberately delayed payment to that contractor in such a situation
to causes of action may arise from the same transaction.

One, of course, is a breach of contract for which remedy can be sought in a civil suit and in
addition to that the contractor may allege a violation of a fundamental right. That is Article
14, which states that the state shall not deny to any person equality before the law. It may
allege that its fundamental right under Article 14 has been violated because the government
has unfairly discriminated against it by paying the nine other cement suppliers while
withholding the amount due to it.

And therefore, the actions of the government are arbitrary and motivated. In this case, a civil
court would not have jurisdiction to determine the question of violation of fundamental
rights.

That is, it would not be an alternate, equally efficacious remedy as far as that course of
action is concerned. Therefore, the High Court may be inclined to exercise its jurisdiction,
possibly with the caveat that the contractor will restrict its arguments only to the cause of
action based on the violation of its fundamental rights and not the cause of action based on
the breach of contract.

Therefore, subject to the specific facts of a case rate, writ jurisdiction may be invoked against
private parties as well if the nature of their activities calls for it. Let us summarize this part of
our discussion in four propositions. First, a high court is not likely to invoke its writ
jurisdiction for the adjudication of a dispute involving a violation of purely private interests
for which one or more alternate, equally efficacious remedies exist in law. Second, this is the
case even if the party that is alleged to be in the wrong is the state.
Third, a high court may invoke its jurisdiction for the adjudication of a dispute involving the
violation of private rights. If, at the same time the dispute involves the violation of a
fundamental right or the violation of a law for which no other remedy has been provided.
This is often the case when the party that is alleged to be in the wrong is the state. And
finally, a high court may invoke Article 226 against a private person if its activities are of a
public nature or they otherwise fall within the parameters of the third proposition above.

Needless to say, these are general propositions, they may have exceptions, and courts in
certain cases may go beyond these general propositions as well. A lot depends on the
particular facts of a case and the feasibility of exercising an alternate remedy provided by
law.
In this case petitioner was a member of the Municipal Board and he was removed from his
position on Objectionable grounds under section 40(3)of Uttar Pradesh Municipalities Act,
1916 elections for fresh appoint were likely to be conducted within a few months and the
petitioner though has an alternative remedy available as to file a suit in civil court but the
final decision in civil case could not be obtained before election due to large number of
cases listed in those courts and that will debar him from contesting elections.

Therefore, Allahabad High Court held that the alternate remedy available before the
petitioner is not an adequate one hence, writ jurisdiction can’t be refused and he can seek
relief by way of writ petition under Article 226.

Judicial review of executive actions

A third principle relevant to the exercise of writ jurisdiction is about the scope of judicial
review of executive action. When a court exercising writ jurisdiction reviews the correctness
of a particular action, say the selection of a person by the government to a particular post,
its role is not to substitute its own assessment for the government’s assessment, but to
assess whether the government has acted rationally and not arbitrarily. That is whether the
government has considered relevant factors and not considered any extraneous factors for
its decision.

For instance, in the selection of a particular person for a particular post, has the government
considered factors of skill or experience that have a rational nexus with the nature of the
post? In other words, has the government considered what skills will be necessary for a
person to effectively discharge the duties connected with the post? And has its decision
been tainted by the consideration of extraneous factors such as gender or religion, as the
case maybe?
In general, a judicial review of executive action is a review of the process by which the
decision was made and not necessarily the specific outcome of that executive action. The
question asked is whether the executive action can be described as reasonable and not
whether it is exactly what the court or the judge would have chosen to do in that situation.

As the Wednesbury Principle states, the courts will not intervene to quash the decision of a
statutory authority unless it can be shown that the authority of the law was guilty of a
breach of natural justice or acted unreasonably. If the authority has considered the matters
which it is its duty to consider and has excluded irrelevant matters, its decision is not
reviewable unless so absurd that no reasonable authority could have reached it.

The principle excludes the court from substituting its own view of the facts for that of the
authority. This principle has its basis in the doctrine of separation of powers, the judiciary is
not superior to the executive, but it must ensure that the executive acts according to law. Of
course, again, this principle is a general one. How far a court deems it fit to interfere in a
particular case of judicial review of executive action may vary on the facts of the case.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]
Facts
An English law provided that cinemas could only open on Sundays with permission from the
local authority.
Associated Provincial Picture Houses (Associated) applied for permission.
Permission was granted, but only provided that no children under the age of 15 was
admitted.
Associated appealed arguing that the decision was unreasonable.

Issues
Could the Court overturn the decision because it was unreasonable?
Held
The Court held that it could not intervene because it can only do so where the decision
maker has gone beyond their legal powers.
This means the court can only intervene in cases where:
The decision maker has not considered matters that lawfully must be considered;
The decision maker has considered matters that are not relevant; or
The decision was so unreasonable that no reasonable person could have made it.
The third limb – that the decision was “so absurd that no sensible person could ever dream
that it lay within the powers of the authority” [229] has become known as Wednesbury
Unreasonableness.
In this particular case, whether or not the Court thought the condition was fair or the best
outcome was irrelevant – it is only relevant whether it was lawful, and it was. This was
because the Parliament wants the decision maker to make the decision, not the Court.
Therefore Associated’s case failed.
This case therefore shows that a Court can only intervene in very limited circumstances. This
is what is known as “judicial review”.

Judicial review of legislative action

The fourth principle is about the judicial review of legislative action. That is when laws
passed by law-making authorities are challenged by invoking Writ jurisdiction in such cases.
The first aspect of the review is whether the legislation violates a fundamental right. Second,
whether the legislation violates a constitutional right other than a fundamental right. And
third, relevant in the case of delegated legislation such as the Bar Council of India rule, 1975,
which have been made under the authority granted to the Bar Council of India by the
Advocates Act. 1961 is whether the scope of the delegated legislation under review is ultra
vires i.e whether it goes beyond the scope permitted of such delegated legislation by statute
or otherwise.

In such cases, it is not sufficient that the lawmaking authority in good faith considered the
legislation to be valid. In this sense, the judicial review of legislative action is different from
the judicial review of executive action. The court must consider objectively, as a matter of
legality and constitutionality, whether the legislation can be sustained.

The burden of proving that particular legislation is unconstitutional or ultravirus is a statute

is on the person alleging it to be so. The legislation carries a rebuttable presumption of
constitutionality or legality.

Writ Futility test

The fifth principle is that jurisdiction will not be invoked in futility. That is, if the grant of
relief will be futile, though a violation of a right has been established, the court will not
exercise its jurisdiction. For instance, if a student has been wrongly denied admission in a
university in the year 2013 and the Student Files petition after, say, two years, the court
declined to grant him any relief because the student is no longer in a position to join the
university as part of the batch which commenced in 2013. If the applied writ is not serving
any fruitful purpose then High Court in its discretion reject the application of the person
seeking the writ on the same ground.

Case- Ram Pratap v Revenue Minister

In this case, the applicant applied for a writ of certiorari against the order of Revenue
Minister of State. The impugned order was directing the collector to make references under
section 8 of the Land Acquisition Act, 1894.

It was held by the Rajasthan High Court that the Revenue Minister had no jurisdiction to
make such impugned order. In this case the actual order was not inferred with, if the party
had come before the high court then it would only be given the relief which was already
given to him by the Revenue Minister.

Delay
Provision of Limitation Act does not apply to a petition under Article 226 neither there is any
specified limitation period for filing a writ petition in Indian Constitution also or in any other
law. Whereas, exorbitant delay in filing the petition can be an appropriate ground for
refusing to grant relief by The High Court. And if the delay is explained properly to satisfy the
court then it can’t be refused by the court on that ground.

It was a well established principle that a writ of certiorari can’t be issued in case there is
negligence on the part of the applicant to assert his right.

Residuary principle
The sixth principle, if it can be called one, is that the court may exercise jurisdiction in the
interests of justice. It is difficult to contemplate all the possible situations that may arise in
human affairs so the courts have a residuary bar, so to speak, of being able to invoke
jurisdiction where they deem it to be in the interests of justice.

Suppression of facts
If the applicant while filing a writ under Article 226 is aggrieved of the suppression of
material facts in his application are tried to mislead the court, then the court should thereby
reject his application and such refusal be considered as a refusal on merits.
Case- Hazari Lal Banna Mal v State of H.P.

The petitioner in this case has deliberately given misstatement of facts in his petition
application with an intention to mislead the court and on the same misstatement obtained a
rules of nisi prohibiting the state from taking certain actions. Misstatement by the petitioner
is itself a sufficient ground for refusing the writ petition.whereas, a mere mistake in the
name of the parties by the person filing the petition does not affect its maintainability.
Apart from these six principles, there are three other major factors that courts consider
relevant when they exercise their discretion for invoking Writ jurisdiction. The first factor is
whether the person seeking to invoke Writ jurisdiction has clean hands. That is whether the
petitioner has engaged in inequitable or illegal behavior.

If so, the court may not be inclined to grant relief after invoking jurisdiction, even if there is
an arguable case on merits. The second factor is about the conduct of parties during Writ
proceedings if the parties conduct during the proceedings is inequitable or illegal. The court
may consider such conduct as relevant to the formulation of final reliefs in the matter.

The third factor is delay. That is whether the person seeking relief has acted diligently or
whether there has been an inordinate delay on his or her part. In some cases, the excessive
or unexplained delay can be a relevant factor for a court to decline the exercise of writ
jurisdiction.
Disputed question of facts
Proceeding of Article 226 is of Summary nature as it is seen in the above referred case
“purushottam chandra ” that there is an availability of alternate remedy but the case needs
to be decided early and fast therefore, petitioner seek remedy under Article 226. Therefore,
proceeding under this Article are not suitable for making any arguments on questions of
facts.
Case- Ramani Kanta Bose v Gauhati University

Petition under Article 226 is filed by Ramani Kanta in his petition he pleaded that he was the
Founder-Secretary of the Governing Body of Bholanath college at Dhubri. And his two wards
were also the students of the same college. This college was governed by this governing
body only and its principle is also the ex- member of this body and at present, he is also the
joint secretary. Members were elected from the teaching staff and from the guardian for the
students.
The Executive council of Gauhati university in the meeting held on july 1950, held that
governing body of all non-law colleges in the State of Assam must be re-organized. And by
an order directed all the principles of non-government colleges to re-organize their
government body.whereas, governing body of Bholanath college could continue to function
till 1952.

It is urged that direction given by Executive Council to re-organisation of governing bodies of

non-governmental colleges constitutes infringement of the fundamental rights of the
governing body of Bholanath college on Linguistic minorities under article 30 clause(1) of
Indian Constitution, 1950. Also it was argued that the scheme introduced by the Executive
Council is ultra vires of the university.

So, the main question which was raised in this case was that, whether the petitioner, who
was discharged from the service, was made permanent or not is totally a question of fact
and therefore on that ground by exercising its discretionary power, High Court refused to
interfere in the case via a writ under Article 226. In this case no question of jurisdiction of
the High Court was raised it was just a matter of discretion of High Court to exercise its
power given under Article 226.

Perpetuation of illegality
In case of A.M. Mani v Kerala SEB, AIR 1968 Ker 76 it was held that writ under Article 226 will
not be issued if its effect is leading to a continuation of some illegal order.
Joinder of parties
Writ under Article 226 ought not to be heard by the High Court if the person getting affected
by the decision of the High Court is not made a party to the case. It was stated by the
Supreme Court in case of Prabodh Verma v State of U.P that In cases where the number of
people affected by the decision is too big then those should be represented by any such
person who has the capacity to represent them all.

Res judicata
Res judicata means the matter already decided.

So, there are certain essential conditions which are required to be fulfilled for applying this
principle of Res judicata according to section 11 of civil procedure code

The matter in which this principle is applied must be similar to the previous matter.
Between the same parties
Parties must be adjudicating under the same title in both the case
Court decided the earlier case was competent to try it.
The matter in issue was heard in earlier case.
In the case of Daryao v state of U.P. it was held by the Supreme Court of Indian that once the
matter has been “heard and decided” the High Court under Article 226 further the writ
under Article 32 is barred by the principle of Res Judicata and therefore could not be
entertained.

Object of this doctrine

No man shall be held before the court twice for the same cause(nemo debet bis vexari pro
una et eadem causa)
To put an end to a litigation, in the interest of state (interest reipublicae ut sit finis litium)
Judicial decision once delivered must be accepted as correct (res judicata pro veritate
occipitur)
Therefore, these general principles of the doctrine of res judicata applies to writ petitions
under Article 226 and 32.

It says that when the same question has been decided by the High Court under Article 226
and conclude the matter with an order that no relief is granted to the petitioner then such
decision of the High Court act as res judicata in subsequent petitions for similar relief.

Case – Supreme Court Employees’ Welfare Association v Union of India

In this case it was held by the Supreme Court of India that even a wrongful decision of the
High Court on question of law relating to the facts in issue will operate as res judicata. Only
condition requisite for applying the principle of res judicata is that the matter adjudicated
must be decided on the merits of the case. If the matter was dismissed in limine then the
principle of res judicata will not bar filing of fresh petition. For example, a non- speaking
order of dismissal will not operate res judicata.

Principle of res judicata will not apply on the writ petition of Habeas corpus under Article 32.
Therefore, a writ petition of habeas corpus once dismissed by the High Court under Article
226 can also be filed under Article 32 Before the Supreme Court on the same facts but in the
same High Court as a successive application is allowed.

Case- Ahmedabad Mfg. & Calico Printing Co. Ltd. v Workmen

It was held by the Supreme Court that power of Special Leave to appeal before the Supreme
Court under Article 136 does not operate as res judicata for a writ application under Article
226. It was also observed in this case that refusal of special leave does not come stand in a
way of petitioner a principle of res judicata file filing a writ petition under Article 226 before
the High Court.

Interim relief
Relief cannot be barred by the statute
Earlier it was believed that Power conferred under Article 226 can’t be taken away from the
High Court by any way other than amendment of the constitution. But the power of judicial
review can’t be taken away even by amendment because judicial review is the basic feature
of our constitution and basic feature of the constitution not subject to any amendments.

Case- L. Chandra Kumar v Union of India

In this case, exclusion of High Court jurisdiction in cases of Article 323-A and Article 323-B
was invalidated by the Supreme Court, and in Surya Dev Rai v Ram Chander Rai case it was
held that section 115 of civil procedure code can not impose any limitation on the powers of
High Court conferred under Article 226 and 227.