Principles Of Natural Justice.docx

Principles of Natural Justice are ultimately weighed in the balance of fairness and hence the Courts have been circumspect in extending principles of natural justice to situations. Exceptions To The Principles Of Natural Justice Now it is well established preposition of Law that the Principles of Natural Justice supplements the enacted statute with necessary implications, accordingly administrative authorities performing public functions are generally required to adopt “fair procedure” and in relation to a variety of different circumstances, we considered the content of the requirements of procedural fairness. A person may also have legitimate expectation of fair hearing or procedural fairness/treatment but as Natural Justice Principles is to be invoked in doing justice, where their observance leads to injustice they may be disregarded. There are several well established limitations on Principles of Natural Justice. Existence of certain circumstances deprives the individual from availing the benefit of principles of natural justices, authors in this research work undertakes to cover the circumstances in which judiciary admitted the exceptions to the observance of Principles of Natural Justice. Principles of Natural Justice are ultimately weighed in the balance of fairness and hence the Courts have been circumspect in extending principles of natural justice to situations where it would cause more injustice rather than justice so, where a right to be fairly heard has been denied, it is more probably a case of bad decision than of true exception, then principles of natural justice can be discarded. Application of the principles of natural justice can be excluded either expressly or by necessary implication, subject to the provisions of Article 14 and 21 of the constitution. However, along with constitutional limitations in India Common Law exception are also preferred. 2. Common Law Exceptions to the Principles of Natural Justice: The requirements of procedural fairness are on first appearance applicable to Judicial, QuasiJudicial and Administrative Proceedings, however, the decision maker may be exempt from all or some of the procedural safeguards that would otherwise be required. Several factors may be identified as capable of excluding the normal procedural fairness requirements in Common Law Courts are: (i) Exclusion in case of emergency, (ii) Express statutory exclusion, (iii) Where discloser would be prejudicial to public interests (iv) Where prompt action is needed, (v) Where it is impracticable to hold hearing or appeal, (vi) Exclusion in case of purely administrative matters. (vii) Where no right of person is infringed, (viii) The procedural defect would have made no difference to the outcome. (ix) Exclusion on the ground of ‘no fault’ decision maker. We shall examine them in turn.

2. (i) Exclusion in cases of Emergency: In India it has been generally acknowledged that in cases of extreme urgency, where interest of the public would be jeopardizes by the delay or publicity involved in a hearing, a hearing before condemnation would not be required by natural justice or in exceptional cases of emergency where prompt action, preventive or remedial, is needed, the requirement of notice and hearing may be obviated. Therefore, if the right to be heard will paralyze the process Law will exclude it. Therefore in situations where dangerous buildings is to be demolished, or a company has to wound up to save depositors or there is a eminent danger to peace or trade dangerous to society is to prohibited, dire social necessity requires exclusion of elaborate process of fair hearing. In the same manner where power theft was detected by officials, immediate disconnection of supply is not violative principles of Natural Justice. The emergency power (defense) Act, 1934 authorized the Government, to make regulation under the Act “For the detention of a person whose detention appears to the secretary of the state to be expedient in the interest of public safety or the Defense of the Realm”. Repealing the contention that the legislation which encroached upon the liberty of the subject should be construed in favour of the subject, the House of Lords held that the legislation was war measure relating to the safety of the nation itself which required a drastic “invasion of the liberty of the subject”, the Lord Maugham Observed that Under the Statute and Regulation made there under the Secretary of the State was under no duty to give prior notice or opportunity to be heard. In the same manner in India also similar exclusion were created in emergency legislations, which is dealt under separate heading in succeeding part of this paper. In cases of urgency or where the giving prior notice would defeat the very object the action, where the function is purely administrative in nature and the principle of prior hearing as required by natural justice does not apply, but prior hearing must be given where an administrative action will result in civil consequences to the party to the dispute. In Swadeshi Cotton mills v. Union of India the Court held that the word “immediate” in Section 18AA of the Industries (Development and Regulation) Act cannot stand in the way of the application of the rules of the Natural Justice. U/Sec 18AA of above said Act the Central Government can take over an industry after investigation, but U/Sec 18AA(1) the Govt. can take over without any notice and hearing on the ground that production has been or is likely to be affected and hence immediate action is necessary the question was whether Sec 18AA(1) excludes the principles of Natural Justice the Govt. took the plea that since Section 18AA clause (1) relates to emergent situations, therefore Principles of Natural Justice are excluded. Furthermore it also contended that since Section 18A provides for hearing and Sec 18AA(1) does not provides for conduct of hearing, consequentially parliament has excluded hearing therein, Court rejecting these arguments held that even in emergency situations the competing claims of ‘hurry and hearing’ are to be reconciled, no matter the application of the Audi Alterm Partem rule at the pre-decisional stage may be a ‘short measure of fair hearing adjusted’, attuned and tailored to exigency of the situation. 2. (ii) Express Statutory Exclusion:

As we already analyzed in Liversidge v. Anderson exclusion can be made through “clearly and expressly” made Act of the parliament. An Act of Parliament may dispense with the requirements of fair procedures where they would otherwise be required. A statute may, for example, permit the exercise of powers without notice. In the interests of administrative efficiency and expedition, the requirements of fairness have been excluded by statutory provisions which, for example, enable decision makers to decline to conduct an oral hearing, or to entertain particular kinds of representations and objections. However, any statutory exclusion of procedural fairness will be construed strictly. Thus, where a statutory provision did not expressly or by necessary implication exclude the right to legal professional’s privilege, the provision was interpreted not to do so. Subordinate legislation purporting to exclude a hearing or to hold a hearing or conduct an inquiry is conferred by a statute, a refusal to hold the inquiry may constitute a denial of natural justice if fairness plainly demands that a hearing be held. Ex .p Gurdian Newspaper Ltd (Written Submissions) in this case Court held that, an express statutory power to proceed without a hearing will not necessarily exclude the right to make informal or written representations, similarly, an express statutory provision excluding a duty to give reasons has been held not to exclude a duty to disclose the substance of the case so that an applicant for citizenship could make representation. In a number of cases, the view has been expressed judicially that there is no question of invocation of natural justice, or hearing the affected party, when legislative action of an authority is brought under the scrutiny of the Courts. In Defense of India Act, 1962 Rule 29 and 30 of the Act empowers the executive to make orders for externment for the maintenance of public order. No hearing was necessary for the purpose of making such Order to direct the removal, detention, externment, interment and the like of any person, if it is ‘satisfied’ that such order was necessary for the defense or efficient conduct of military operations and maintenance of Public order. Also in Laxmi Khandsari v. State of U.P in this case SC held that notification of UP Govt. Sugar Cane (Control) Order, 1966 directing that no power-crusher of Khandsari unit in reserved area of a Sugar mill will work during the period Oct 9 to Dec 1st , 1980 is legislative in character hence Principle of Natural Justice attracted. In the same manner, Charanlal Shahu v. U.O.I, in this case the constitutionality of the Bhopal Gas leak disaster (processing of claims) Act, 1985 was involved. The SC held: “for legislation by parliament no principles of natural justice is attracted, provided such legislation is within the competence of legislature”. In Union of India v. Cynamide India Ltd. SC held that no principles of Natural Justice had been violated when the Govt. issued a notification fixing the Prices of certain drugs. The Court reasoned that since the notification showed from a legislative act and not an administrative one so Principles of Natural Justice would not applied. There are however, cases where the SC has adopted a somewhat liberal approach in the matter of procedural safeguards to the individual affected even tough prima facie administrative function could be characterized legislative in character. The judicial strategy in such cases is to hold the action of administration in question as administrative. Example, in State of Assam v. Bharat

Kalabhandar, a notification issued by the executive under the defense of India rules 1962 notified certain employments as essential “for securing the public safety and for maintaining the supplies and services necessary to the life of the community, another notification relating to Order of payment of specific cost of living allowance to all workers drawing pay up to Rs 400 per month and also to worker employed on daily wages in essential services. No question about hearing in the case of the former notification was raised. However, about the later notification, which prima facie a large number of persons and could thus be characterized as legislative. The SC took the view that it was necessary to consult the interest affected before its issue as its effect was to disturb settled industrial relation whether based on contract or industrial awards. Tough, on account of the emergency the Court refrained from holding the order as quasi-judicial, yet the whole approach of the Court shows that it would have held so had the emergency not been there. Where public policy demands that certain information in possession of state shall not be disclosed, as it is in the interest of security of the state. In Malak Singh v. State of Punjab and Haryana SC held that the maintenance of Surveillance Register by the Police is confidential document neither the person whose name is entered in the Register nor the any other member of the public can have excess to it. Furthermore, the Court observed that observance of the principles of Natural justice in such a situation may defeat the very purpose of surveillance and there is every possibility of the ends of justice being defeated instead of being served. In S.P. Gupta v. U.O.I, where the SC held that no opportunity of being heard can be given to an additional judge of HC before his name is dropped from being confirmed it may be pointed out that in a country like India surveillance may provide a very serious constraint on the liberty of the people, therefore the maintenance of the surveillance Register cannot be so utterly administrative and non-judicial that it is difficult to conceive the application of the rules of natural justice. Even Right to The Information Act, 2005 provides express provisions to protect certain information from discloser such as, (a) Information, disclosure of which would prejudicially affect their sovereignty and integrity of India, the security, strategic, scientific or economic interest of the State, etc (b) information which has been barred by Court from disclosure. (c) the information, the disclosure of which cause breach of privilege of parliament or the state legislature. (d) Information relating commercial confidence, IPR etc. (e) Information available to a person in his fiduciary relationship. (f) Information which impair the process of investigation or prosecution of offenders. (g) Information relating copy right etc. 2. (iv) Where prompt action is needed/ exclusion in cases of interim preventive action: Desirably, it may be to allow a hearing or an opportunity to make representations, or simply to give prior notice, before a decision is taken, summary action may be alleged to be justifiable when an urgent need for protecting the interests of other persons arises. There are in fact remarkably few situations in which the enforcement powers exist. For example, interim antisocial behavior orders made without notice are not unlawful where it is necessary for the court to

act urgently to protect the interests of a third party or to ensure that the order of the court is effective. There are numerous illustrations of statutory provisions which for reasons of public safety or public health permit public authorities to interfere with property or other rights. For example: the destruction of infected crops; the prevention of the bus lank being carried on in a manner detrimental to the interests of the public or of depositors or other creditors; prohibition on entry to an airport; suspension of the license of a public service vehicle seizure of obscene works; Seizure of food suspected of not complying with food safety requirements; local authorities may examine and test, drains and test sewers, drains and sanitary conveniences that it believes to be defective etc,. In the same manner if the administrative authority passed a suspension order in the nature of a preventive action and not a final order, the application of the principles of natural justice may be excluded. In Abhay Kumar v. K Srinivasan, the institution passed an Oder debarring the student from entering the premises of the institution and attending classes till the pendency of a criminal case against him for stabbing a co-student. This order was challenged on the ground that it violates Principles of Natural Justice. The Delhi High Court rejecting the contention held that such an order could be compared with an order of suspension pending enquiry which is preventive in nature in order to maintain campus peace and hence the principles of natural justice shall not apply. It was also in Maneka Gandhi v. Union of India recognized that “where an obligation to give notice and opportunity to be heard would obstruct the taking of prompt action, especially action of a preventive or remedial nature, right of prior notice and opportunity to be heard may be excluded by implication”. In this case it is interesting to see that natural justice entails new meaning and place under Indian Constitution at the same time Court recognized the circumstance under which Principles of natural Justice can be discarded. 2. (v) Where it is impracticable to hold hearing or appeal: It is one of the most convincing reason that the number of persons affected by a particular order, act or decision is so great as to make it manifestly impracticable for them all to be given an opportunity of being heard by the competent authority beforehand. This is the reason why representation may not be required for the making of regulation of a legislative character in absence of legislative requirement. For example, In R v. Aston University Senate Ex.p the large number of applicants competing for scarce resource may make it impracticable to offer each applicant a hearing. If, for example, there are 1,000 applicants for 100 places available in University law department it may be impossible to afford interviews to many of those who, from the particulars supplied with their written applications, appear sufficiently meritorious or suitable to warrant fuller personal consideration. In this circumstance even if the court finds that a breach of procedural fairness has occurred, administrative impracticability may still be relied upon as a reason for refusing a remedy in its discretion.

In R V Radhakrishanan v. Osmania University, where the entire MBA entrance examination was cancelled by the University because of mass copying, the Court held that notice and hearing to all candidates not possible in such a situation, which had assumed national proportions, Thus the court sanctified the exclusion of the rules of natural justice on the ground of administrative impracticability. In the same way the Supreme Court in Andhra Steel Corporation v. A.P. State Electricity Board held that a concession can be withdrawn at any time without affording any opportunity of hearing to affected persons except when the law requires otherwise or the authority is bound by promissory estoppels. In this case the electricity board had withdrawn the concession in electricity rate without any notice and hearing to the appellant. Therefore, where an order of extension was cancelled before it became operational. In Union of India v. O. Charadhar, held that cancellation of panel, select, reserve, waiting, merit or rank lists, individual hearing to candidate is not necessary where the mischief in conducting selection was so widespread and all the mischief in conducting the result, that it was difficult to identify the persons unlawfully benefited or unlawfully deprived of selection. Thus even the consequent termination of service does not attract principles of natural justice. Also in W.B. Electricity Regulatory Commission v. CESC Ltd., it opined that when a statute confers a right which is in conformity with the principles of natural justice, the same cannot be negativated by a Court on an imaginary ground that there is a likelihood of an unmanageable hearing before the authority or practical inconvenience. In this case the W.B. Electricity Regulatory Commission had contended that though Act requires consumers hearing before fixing tariff, yet giving hearing to 17 lakh electricity consumers would be a practical impossibility and inconvenience. Rejecting the contention, the Court observed that the Act does not give individual rights to every consumer and the same is regulated by Regulations, therefore, the question of indiscriminate hearing does not arise. Subsequent fair hearing or Appeal: if the public authority to make decisions which do not comply fully with procedural fairness requirements if the person affected has recourse to another hearing or appeal which itself provides fairness. There are situations where the absence of procedural fairness before a decision is made can be subsequently and adequately be “cured”, for example on appeal a prior hearing may be better than a subsequent hearing, but a subsequent hearing is better than no hearing at all; and in some cases the courts have held that statutory provisions for an administrative appeal. 2. (vi) Exclusion in case of purely administrative matters: Where nature of authority is purely administrative no right of hearing can be claimed, where a student of the university was removed from the rolls for unsatisfactory academic performances without being given any per-decisional hearing. The Supreme Court in Jawaharlal Nehru University v. B.S. Narwal held that the very nature of academic adjudication appears to negative any right of an opportunity to be heard. Therefore if the competent academic authorities examine and asses the work of a student over a period of time and declare his work unsatisfactory, the rules of natural justice may be excluded.

In the same manner in Karnataka Public Service Commission v. B.M. Vijay Shanker when the commission cancelled the examination of the candidate because, in violation of rules, the candidate wrote his roll number on every page of the answer-sheet, the Supreme Court held that the principles of natural justice were not attracted, the Court observed that the rule of hearing be strictly construed in academic discipline and if this was ignored it would not only be against the public interest but also erode the social sense of fairness. However, this exclusion would not apply in case of disciplinary matter or where the academic body performs non-academic functions granting sanction of prosecution is purely administrative functions, therefore, principles of natural justice are not attracted. In the same manner cancellation of bid for failure to execute lease deed and to deposit security amount, held, would not attract principles of natural justice. 2. (vii) Where no right of person is infringed: In some case it has been suggested that a claimant who is for some reason undeserving for certain claims (due to absence of right to claim) may forfeit the right to procedural fairness. Where no right has been conferred on person by any statute nor any such right arises from common law the principles of natural justice are not applicable, this based on the principle Ebi Jus ebi remedium and Injuria sine damano the earlier stands for ‘where there is right there is remedy’ and later stands for ‘there shall be legal right or interest to claim some interest or benefit’. In J.R. Vohra v. Indian Export House (p) Ltd. The Delhi Rent Control Act makes provisions for the creation of limited tenancies, Section 21 and 37 of the Act provide for the termination of limited tenancies. The combined effect of these sections is that after the expiry of the term a limited tenancy can be terminated and warrant of possession can be issued by the authority to the landlord without any notice of hearing to the tenant. Upholding the validity of warrant of possession without complying with the principles of natural justice, the Supreme Court held that after the expiry of the period of any limited tenancy, a person has no right to stay in possession and hence no right of his is prejudicially affected which may warrant the application of the principles of natural justice. In the same manner the Court in Andhra Steel Corporation v. A.P. State Electricity Board held that a concession can be withdrawn at any time without affording any opportunity of hearing to affected persons except when the law requires otherwise or the authority is bound by promissory estoppels. In this case the electricity board had withdrawn the concession in electricity rate without any notice and hearing to the appellant. Therefore, where an order of extension was cancelled before it became operational or the order of stepping up salary was withdrawn before the person was actually paid or the service of the probationer terminated without charge the principles of natural justice are not attracted. 2. (viii) The procedural defect would have made no difference to the outcome: There are several instances where Court discarded principles of natural justice after satisfying that the outcome of the case could not have been different had natural justice been fully observed. These decisions have been sought to be explained on the ground that the relief sought was discretionary, or on the ground breach makes an order voidable rather than void. It is submitted that neither explanation is sufficient. As to the former, it is right to note that a refusal

of relief on the ground that it would make “no difference” may be explained either as an exercise of the courts discretion as to the grant of relief, as a part of the consideration of whether the principles of fairness have in fact been infringed at all. ‘Useless formality’ theory is no doubt yet another exception to the application of the principles of natural justice but it should be used with great caution and circumspection by the Court otherwise it would turn out to be wheel of miscarriage of justice. It can only be used where on the admitted or undisputed facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not insist on the observance of the principles of natural justice because it would be futile to order its observance. In R v. Haberdashers Aske’s School Governors , a decision by governors refusing to correct an inaccurate statement in a consultation paper, and refusing to extend the consultation period was held not unfair because the error in question could not have led a person reading the pamphlet to have reached a different Conclusion. In Dharmarathmakara Rai Bhadur Arcot Ramaswmay Mudaliar Educational Institution v. Education Appellate Tribunal In this case a lecturer, who had been granted leave for doing M. Phil, in violation of leave condition, had joined Ph. D course. She was given notice and after considering her reply, wherein she had admitted joining Ph. D course, her service was terminated. She challenged the termination order before Karnataka Private Educational Institutions (discipline and Control) Act, 1975 subsequently it is appealed to HC where termination was held invalid, but SC held that opportunity to show cause was not necessary where facts are undisputed and the affected person could not fourth any valid defence. Similarly in KSRTC v. S.G. Kotturappa, the Court opined that where the respondent had committed repeated acts of misconduct and had also accepted minor punishment, he is not entitled to benefit of principles of natural justice as it would be mere formality, that too, in the case of misconduct by a daily wager. Supreme Court remarked; “the question as to what extent principles of natural justice are required to be complied within a particular case would depend on fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore, not required to be complied with, if it will lead to a mere empty formality. In Punjab National Bank v. Manjeet Singh, the SC held that in view of the binding nature of the award the Court will not insist on compliance with the principles of natural justice as it would be a mere empty formality unless factual position or legal implications under the award is disputed. In this case award was challenged on the ground that everyone in the constituency was not heard, therefore, no unilateral decision can be taken by banks without giving employees notice and hearing. However ‘useless formality’ theory has still not been able to firmly established in administrative law because there exists a strong opinion which suggest that this theory is wrong as a Court cannot prejudge the issue and there is scope for abuse on the basis of self imposed assumptions of authority.

2. (ix) Exclusion on the ground of ‘no fault’ of decision maker: Where alleged procedural unfairness is not the fault of the tribunal or other decision-maker is a claimant still entitled to have the decision quashed on the basis that he has not been accorded procedural fairness? Where, at a hearing on notice, the absence of procedural fairness is due to the conduct of, or a failure by, the other party to the hearing, it was at one time thought that the courts had discretion to quash the decision. Thus, where prison authorities failed to make known to a prisoner charged with an offence against discipline the existence of a witness to the alleged offence, the determination of the prison board of visitors was quashed on the grounds of unfairness, ambit that this was not caused by the tribunal itself. Where an important prosecution witness on a charge of shoplifting deceived the Court as to his reason for resign from the Metropolitan Police (being in fact required to resign following disgraceful conduct including a conviction), it was held that his deliberate concealment constituted unfairness, so that the conviction should be quashed. It has been suggested, however, that these decisions should be viewed not as resting on the principles of fairness, but as based upon the alternative principles that “fraud unravels everything”, or because the “process leading to conviction” has been distorted and vitiated as a result of breach of duty owed to the procedure court and to the defence prosecutor. The principles of fairness, in contrast, are “concerned solely with the propriety of the procedure adopted by the decision-maker”, but this approach are the responsibility of the prosecution or respondent, but which cannot be characterized as fraud or breach of duty. In the same manner it may be futile to comply with the principles of natural justice would be where administrative action is perse illegal as an ineligible candidate has been considered for appointment. It has been held that the principles of natural justice may not be applied unless prejudice is caused and there is no prejudice if an ineligible candidate is considered for appointment. Likewise, as general rule, a person who has himself impeded or frustrated the service of notice of impeding action cannot afterwards be heard to complain that he did not receive actual notice. But where the mistake is due to the conduct of the applicant’s legal representative, the position is not entirely clear. In R v. Secretary of State for the Home Department, the applicant had lodged an appeal against the Home Secretary’s decision to make a deportation order against him. Notice of appeal was sent to his solicitors, who misaddressed the letter when sending it on to the applicant, who consequently never received notice of the appeal. The appeal was therefore dismissed in his absence. On an application for judicial review of the decision to dismiss the appeal, on the ground that the applicant had been denied a fair (or any) hearing, the House of Lords held that a party cannot complain of a denial of fair hearing where he failed to make use of an opportunity to have his case heard through the negligence of his legal adviser, even if he himself is not responsible in any way for that failure. But in India law on this issue is quite clear that it is good ground to reopen the hearing of case on the ground of negligence of Legal representative resulting injustice the party. 3. Conclusion Authors are of the conclusion that the Courts both in India and England in relation to

administrative proceedings created various exception to the requirement of Natural Justice Principles and procedure there off. However, these exceptions are all circumstantial and not conclusive, every exception to be adjudged admissible or otherwise only after looking into the facts and circumstances of each case. The main objective behind the reconciliation between the inclusion and exclusion of protection of Principles of Natural Justice is to harmoniously construe individual’s natural rights of being heard and fair procedure as well as the public interest. Larger public interest is to be allowed to override the individual’s interest where the justice demands. ~~~~~~~~~~~~~~~~~~ ** Lecturer, K.L.E. Society’s Law College, Bangalore, E-mail: [email protected] ** Lecturer, K.L.E. Society’s Law College, Chikkodi, E-mail: [email protected] # I.P. Massey , Administrative Law, VII ed. 2008, ( Lucknow: Eastern Book Company), at. p. 263. # Liversidge v. Anderson, (142) AC 206 # Neelama v. Harindeer, (1990) 2 SCC 746. # AIR 1981 SC 818. # (142) AC 206 # Re A (2006) EWHC 96. # R v. Secretary of State for Home department Ex.p, (1998) 1 W.L.R. 763. # AIR 1981 SC 873. # (1990) 1 SCC 613. # (1987)2 SCC 720. # AIR 1967 SC 1766 # M.P.Jain and S.N.Jain, Principles of Administrative law VI ed. (2010),( Reprint 2011), (Gurgaon; Lexis Nexis, Butter Worths Wdhava Nagpur), at, p.267. # AIR 1981 SC 760 # (1981) SC C87. # Sec 8 and 9 # Harry Woolf, Jeffrey Joweell and Andrew Le Sueur, De Smith’s Judicial Review, VI ed. (2007), (London Sweet and Maxwell Ltd) at,p.451 # Ibid, at, p.452 # I.P. Massey , Administrative Law, VII ed. ( 2008) ( Lucknow: Eastern Book Company), at. P. 267, see also AIR 981 Del 381. # AIR 1978 SC 597 # (1969) 2 Q.B. 538. # Supra 18 at, p. 266 and see also AIR 1974 AP 283. # (1991) 3 SCC 263. # (2002) 3 SCC 146. # (2002) 8 SCC 715. # Woolf Harry, Jeffrey Joweell and Andrew Le Sueur, De Smith’s Judicial Review, VI ed. (2007), (London Sweet and Maxwell Ltd), at,p. 456. # AIR 1980 SC 1666. # (1992) 2 SCC 206. # State of Karnataka v. Saveen Kumar Shetty, (2002) 3 SCC 426 # Cinnamond v. British Airports Authority, (1980) 1 W.L.R. 582 # AIR 1985 SC 475

# (1991) 3 SCC 263. # High Court of Patna v. M.M.P. Sinha, (1997) 10 SCC 409. # Woolf Harry, Jeffrey Joweell and Andrew Le Sueur, De Smith’s Judicial Review, VI ed. (2007), (London Sweet and Maxwell Ltd), at 473 # I.P. Massey , Administrative Law, VII ed, (2008), (Lucknow: Eastern Book Company), at. p. 275. # Supra note 34. at. p. 275 # (2006) 8 SCC 647. # R v. Blundeston Prison Board of Vsitors (1982) 1 All E.R. 646. # R. v. Knightbridge Crown Court, (1986) Q.B. 1 # Ashok Kumar Sonkar v. Union of India, (2007) 4 SCC 54. # (1990) 1 A.C. 876 The author can be reached at: [email protected]

There are five types of Writs- Habeas Corpus, Certorari, Prohibition Mandamus and Quo Warranto Article 32 and 226 of the constitution of India has designed for the enforcement of fundamental rights and for a judicial review of administrative actions, in the form of writs. It is a constitutional remedy available to a person to bring his complaint or grievance against any administrative action to the notice of the court. Role of Writs In Administrative Law

Concept of Writs In India AbstractSocial and Economic Justice is the signature tune of the Indian Constitution. It guarantees, fundamental rights which cannot be ordinarily derogated from, in protecting these right, the Constitution has provided for writ remedies enforceable by the High Court and the Supreme Court. An important dimension of these remedies is the award of compensation as part of the relief that can be granted to the affected person. This arises from the fact that not only does the state have a legal duty in protecting the rights guaranteed, but also a social duty to compensate the affected, when the state violates these rights. On the other side, There has been tremendous expansion in the administrative process. This is natural in a welfare state as a welfare state is basically an administrative state. So my article deals with the Concept of Writs, It’s Background and also It’s Role In Administrative Action. IntroductionThe first question arise in our mind while reading the topic is.. Actually, What Is Writ? The answer is here- A Writ is a formal written order issued by a government entity in the name of the sovereign power. In most cases, this government entity is a court. In modern democratic countries, the administrative authorities are vested with vast discretionary powers. The exercise of those powers often becomes subjective in the absence of specific guidelines etc. Hence the need for a control of the discretionary powers is essential to ensure that ‘Rule of Law’ exist in all governmental actions. The judicial review of administrative actions in the form of writ jurisdiction is to ensure that the decisions taken by the authorities are legal, rational, proper, just, fair and reasonable. Safeguard of fundamental rights and assurance of natural justice are the most important components of writ jurisdictions

Birth of Writs-

The origin of writs can be drawn from the English Judicial System and were created with the development of English folk courts to the common law courts. The law of writs has its origin from the orders passed by the King’s Bench in England. Writs were issued on a petition presented to the king in council and were considered as a royal order. Writs were a written order issued in the name of the name of the king. However, with different segments writs took various forms and names. The writs were issued by the crown and initially only for the interest of the crown later on it became available for ordinary citizens also. A prescribed fee was charged for it and the filling of these writs were known as Purchase of a Writ.

Origination In IndiaThe origin of writs in India goes back to the Regulating Act, 1773 under which Supreme Court was established at Calcutta. The charter also established other High Courts and also gave them power to issue writs as successor to Supreme Court. The writ jurisdiction of these courts was limited to their original civil jurisdiction which they enjoyed under Section 45 of the Specific Relief Act, 1877.

Principles of Exercise Writs Jurisdiction Writs are meant as prerogative remedies. The writ jurisdictions exercised by the Supreme Court under article 32 and by the high courts under article 226, for the enforcement of fundamental rights are mandatory and not discretionary. But the writ jurisdiction of high courts for 'any other purpose' is discretionary. In that sense the writ jurisdiction of high courts are of a very intrinsic nature. Hence high courts have the great responsibility of exercising this jurisdiction strictly in accordance with judicial considerations and well established principles. When ordinary legal remedies seem inadequate, in exceptional cases, writs are applied.

1.Habeas Corpus The meaning of the Latin phrase Habeas Corpus is 'have the body'. According to Article 21, "no person shall be deprived of his life or personal liberty except according to the procedure established by law". The writ of Habeas corpus is in the nature of an order directing a person who has detained another, to produce the latter before the court in order to examine the legality of the detention and to set him free if there is no legal justification for the detention. It is a process by which an individual who has been deprived of his personal liberty can test the validity of the act before a higher court. The objective of the writ of habeas corpus is to provide for a speedy judicial review of alleged unlawful restraint on liberty. It aims not at the punishment of the wrongdoer but to resume the release of the retinue. The writ of habeas corpus enables the immediate determination of the right of the appellant's freedom. In the writs of habeas corpus, the merits of the case or the moral justification for the imprisonment or detention are irrelevant. In A.D.M. Jabalpur v. Shivakant Shukla , it was observed that “the writ of Habeas Corpus is a process for securing the liberty of the subject by affording an effective means of immediate relief from unlawful or unjustifiable

detention whether in prison or private custody. If there is no legal justification for that detention, then the party is ordered to be released.”

2. Certorari The writ of Certiorari is generally issued against authorities exercising quasi-judicial functions. The Latin word Certiorari means 'to certify'. Certiorari can be defined as a judicial order of the supreme court or by the high courts to an inferior court or to any other authority that exercise judicial, quasi-judicial or administrative functions, to transmit to the court the records of proceedings pending with them for scrutiny and to decide the legality and validity of the order passed by them. Through this writ, the court quashes or declares invalid a decision taken by the concerned authority. Though it was meant as a supervisory jurisdiction over inferior courts originally, these remedy is extended to all authorities who issue similar functions. The concept of natural justice and the requirement of fairness in actions, the scope of certiorari have been extended even to administrative decisions. An instance showing the certiorari powers was exercised by the Hon’ble Supreme court in A.K.Kraipak v. Union of India, where the selection was challenged on the ground of bias. The Supreme Court delineated the distinction between quasi judicial and administrative authority. The Supreme Court exercising the powers issued the writ of Certiorari for quashing the action. Certiorari is corrective in nature. This writ can be issued to any constitutional, statutory or non statutory body or any person who exercise powers affecting the rights of citizens.

3.ProhibitionThe grounds for issuing the writs of certiorari and prohibition are generally the same. They have many common features too. The writ of prohibition is a judicial order issued to a constitutional, statutory or non statutory body or person if it exceeds its jurisdiction or it tries to exercise a jurisdiction not vested upon them. It is a general remedy for the control of judicial, quasi judicial and administrative decisions affecting the rights of persons. The writ of Prohibition is issued by the court exercising the power and authorities from continuing the proceedings as basically such authority has no power or jurisdiction to decide the case. Prohibition is an extra ordinary prerogative writ of a preventive nature. The underlying principle is that ‘prevention is better than cure.’ In East India Commercial Co. Ltd v. Collector of Customs, a writ of prohibition is an order directed to an inferior Tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise.

4.MandamusThe writ of mandamus is a judicial remedy in the form of an order from the supreme court or high courts to any inferior court, government or any other public authority to carry out a 'public duty' entrusted upon them either by statute or by common law or to refrain from doing a specific act which that authority is bound to refrain from doing under the law. For the grant of the writ of

mandamus there must be a public duty. The superior courts command an authority to perform a public duty or to non perform an act which is against the law. The word meaning in Latin is 'we command'. The writ of mandamus is issued to any authority which enjoys judicial, quasi judicial or administrative power. The main objective of this writ is to keep the public authorities within the purview of their jurisdiction while performing public duties. The writ of mandamus can be issued if the public authority vested with power abuses the power or acts mala fide to it. In Halsbury’s Laws of England , it is mentioned that, “As a general rule the order will not be granted unless the party complained of has known what it was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce and that that demand was met by a refusal.”

5.Quo WarrantoThe word meaning of 'Quo warranto' is 'by what authority'. It is a judicial order against a person who occupies a substantive public office without any legal authority. The person is asked to show by what authority he occupies the position or office. This writ is meant to oust persons, who are not legally qualified, fro substantive public posts. The writ of Quo warranto is to confirm the right of citizens to hold public offices. In this writ the court or the judiciary reviews the action of the executive with regard to appointments made against statutory provisions, to public offices .It also aims to protect those persons who are deprived of their right to hold a public office. In University of Mysore v. Govinda Rao,12 the Supreme Court observed that the procedure of quo Warranto confers the jurisdiction and authority on the judiciary to control executive action in making the appointments to public offices against the relevant statutory provisions; it also protects a citizen being deprived of public office to which he may have a right.

Constitutional Provisions Article 32 and 226 of the constitution of India has designed for the enforcement of fundamental rights and for a judicial review of administrative actions, in the form of writs. It is a constitutional remedy available to a person to bring his complaint or grievance against any administrative action to the notice of the court. Safeguard of fundamental rights and assurance of natural justice are the most important components of writ jurisdictions. Writ jurisdiction is exercised by the Supreme Court and the High courts only. This power is conferred to Supreme Court by article 32 and to high courts by article 226. •Article 32(1) guarantee a person the right to move the Supreme Court for the enforcement of fundamental rights guaranteed by part III of the constitution. •Article 32(2) empowers the Supreme Court to issue direction or orders or writs in the nature of Habeas Corpus, Certiorari, Prohibition, mandamus and Quo-warranto for the enforcement of fundamental rights.

•Article 226 empowers the state high courts to issue directions, orders or writs as mentioned above for the enforcement of fundamental rights and for 'any other purpose'. i.e., High courts can exercise the power of writs not only for the enforcement of fundamental rights but also for a 'non fundamental right' Thus the constitution provides the discretionary remedies on the High Court and the Supreme Court. In the absence of the provisions of such remedies no one can enforce its rights given. Thus wherever there is a right there must be a remedy for it. Thus it should satisfy the maxim, ‘ubi jus ibi remedium.’ One of the principle makers of the constitution, Dr. Ambedkar has given the prime importance to Article 32 among all other articles from the Indian Constitution. He has referred that, “It is the very soul of the Constitution and the very heart of it, “It is the very soul of the Constitution and the very heart of it .” In Devilal v. STO , it has been marked that, “There can be no doubt that the Fundamental Rights, guaranteed to the citizens are a significant feature of our Constitution and the High Courts under Article 226 are bound to protect these Fundamental Rights.” In Daryao v. State of U.P. , it was held that the right to obtain a writ must equally be a fundamental right when a petitioner presents the case. Thus, it cannot merely be considered as an individual’s right to move the Supreme Court but it is also the duty and responsibility of the Supreme Court to protect the fundamental rights. Role of Writs In Administration LawThe administrative law is that branch of law that keeps the government actions within the bounds of law or to put in negatively, it present the enforcement of blatantly bad orders from being derogatory. Administrative law has greatly demarcated the checks, balance and permissible area of an exercise of power, authority and jurisdiction over administrative actions enforced by any State, Government agencies and instrumentalities defined under Article 12 of the Constitution of India. And the judiciary is dynamically carving the principles and exceptions, while making the judicial review of administrative action. The Courts have constantly tried to protect the liberties of the people and assume powers under the Constitution for judicial review of administrative actions. The discretionary powers have to be curbed, if they are misused or abused, it is the essence of justice. The socio- politics instrument need not cry, if the courts do justice and perform the substantial role. That is the essence of justice. The welfare state has to discharge its duty fairly without any arbitrary and discriminatory treatment of the people in the country. If such powers come to the notice of the Courts, the courts have raised the arms consistently with the Rule Of Law. Today, the Government is the provider of social services, new form of poverty like jobs, quotas, licences etc. The dispenser of special services cannot therefore act arbitrarily. Courts laid the standard of reasonableness in Government act Role of Writs In Administrative ActionNow as far as the role of the writs is concerned, let us go by illustration over the cases on discretion. Conferment of discretionary powers has been accepted as necessary phenomena of modern administrative and constitutional machinery. Law making agency legislates the law on

any subject to serve the public interest and while making law, it has become indispensable to provide for discretionary powers that are subject to judicial review. The rider is that the Donnie of the discretionary power has to exercise the discretion in good faith and for the purpose for which it is granted and subject to limitations prescribed under the Act. The Courts have retained their jurisdiction to test the Statute on the ground of reasonableness. Mostly, the courts review on two counts; firstly whether the statute is substantively valid piece of legislation and, secondly whether the statute provides procedural safeguards. If these two tests are not found, the law is declared ultra vires and void of Article 14 of the Constitution. Beside this, Courts control the discretionary powers of the executive government being exercised after the statutes have come to exist. Once they come into existence, it becomes the duty of the Executive Government to regulate the powers within limitations prescribed to achieve the object of the Statute. The discretionary powers entrusted to the different executives of the Government play substantial role in administrative decision making and immediately the settled principles of administrative law trap the exercise of powers. If these discretionary powers are not properly exercised, or there is abuse and misuse of powers by the executives or they take into account irrelevant consideration for that they are not entitled to take or simply misdirect them in applying the proper provision of law, the discretionary exercise of powers is void. Judicial review is excluded when it is found that executives maintain the standard of reasonableness in their decisions. Errors are often crept in either because they would maintain pure administrative spirit as opposed to judicial flavour or that they influence their decisions by some irrelevant considerations or that sometimes, the authorities may themselves misdirect in law or that they may not apply their mind to the facts and circumstances of the cases. Besides, this aspect, they may act in derogation of fundamental principles of natural justice by not conforming to the standard or reasons and justice or that they do not just truly appreciate the existence or non existence of circumstances that may entitle them to exercise the discretion. “The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should they take into account considerations that are wholly irrelevant or extraneous. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The courts have power to see that the Executive acts lawfully. They cannot avoid scrutiny by courts by failing to give reasons. If they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters though the propriety adequacy or satisfactory character of these reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.” The role of writs is also sensibly laid down in a famous PADFIELD’S CASE In England in earlier days the Courts usually refused to interfere where the Government or the concerned officer passed what was called a non-speaking order, that is, an order which on the face of it did not specify the reasons for the orders. Where a speaking order was passed the Courts proceeded to consider whether the reasons given for the order or decision were relevant reasons. Where there was a non-speaking order they used to say that it was like the face of the Sphinx in the sense that it was incurable and therefore hold that they could not consider the question of the validity of the order. Even in England the Courts have travelled very far since

those days. They no longer find the face of the Sphinx inscrutable. ConclusionThe prerogative powers of writ jurisdiction conferred by the constitution for judicial review of administrative action is undoubtedly discretionary and yet unbounded in its limits. The discretion however should be exercised on sound legal principles. In this respect it is important to emphasis that the absence of arbitrary power is the first essential of the rule of law upon which the whole constitution system is based. In a system governed by rule of law when discretion is conferred upon the executive authorities it must be based on clearly defied limits. Thus the rule of law from this point of view means that the discretion or the decision must be based on some principles and rules. In general the decision should be predictable and citizens should know where he is. If a decision is taken not on the basis of any principle or rules then such decision is arbitrary and is taken not in accordance with the rule of law. The Constitution is the law of the laws and nobody is supreme. Even the judges of Supreme Court are not above law and they are bound by the decisions which are the law of the land declared by them under the writ petitions. Thus, the constitutional remedies provided under the constitution operate as a check and keeps the administration of government within the bounds of law. In our country the judiciary or law is supreme. Writ jurisdictions are judicial reviews of administrative actions. Judiciaries always stand to ensure that all administrative actions are confined to the limits of the law .Thus, the writ jurisdictions act as judicial restraints of policy decisions which are unreasonable, unfair and against public interest.

The Constitution of India, under Articles 32 and 226 confers writ jurisdiction on Supreme Court and High Courts, respectively for enforcement/protection of fundamental rights of an Individual. Constitutional philosophy of Writs: A detailed analysis A person whose right is infringed by an arbitrary administrative action may approach the Court for appropriate remedy. The Constitution of India, under Articles 32 and 226 confers writ jurisdiction on Supreme Court and High Courts, respectively for enforcement/protection of fundamental rights of an Individual. Writ is an instrument or order of the Court by which the Court (Supreme Court or High Courts) directs an Individual or official or an authority to do an act or abstain from doing an act. Article 32(2) of the Constitution of India provides:’’ The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of rights conferred by this Part.” Article 32 is a fundamental right under Part -III of the Constitution. Under this Article, the Supreme Court is empowered to relax the traditional rule of Locus Standi and allow the public interest litigation (PIL) at the instance of public-spirited citizens. The Supreme Court can provide relief to various types of litigants such as bonded labour, undertrial prisoners, victims of police torture etc. The Supreme Court may also award exemplary damages by exercising its power under Article 32 as it has imposed in Bhim Singh’s and Rudul Shah’s cases. Article 226(1) of the Constitution of India, on the other hand says,” Notwithstanding anything in Article 32, every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.” As is clear from the bare language, this Article guarantees an individual to move the High Court for enforcement of the fundamental rights as well as for any other purpose also i.e. for enforcement of any other legal right. Article 226 confers wide powers on the High Courts. It serves as a big reservoir of judicial power to control administration. Its power under Article 226 cannot be curtailed by legislation. Thus powers of High Courts conferred under Article 226 are wider as compared to powers conferred on the Supreme Court under Article 32 of the Constitution of India. Both the Articles 32 and 226 provide five types of writs namely writ of habeas corpus, mandamus, prohibition, certiorari and quo-warranto. These are known as prerogative writs in

English Law because they had originated in the King’s prerogative power of superintendence over the due observance of law by his officers and tribunals. The prerogative writs are extraordinary remedies intended to be applied in exceptional cases in which ordinary legal remedies are not adequate. Now, let us discuss the prerogative writs in detail:

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 (d) Error of law apparent on the face of the record (e) 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. Bibliography:1.Prof.Narender Kumar, Constitutional Law of India, Allahabad Law Agency, Faridabad,2012 2.Dr.D.D.Basu, Introduction to the Constitution of India, Wadhwa and Company Law Publishers, Agra, 2005. 3.Dr.J.J.R. Upadhyaya, Administrative Law, Central Law Agency, Allahabad,2013. 4.Dr.Rega Surya Rao, Lectures on Administrative Law, Asia Law House, Hyderabad,2012. 5. Bhim Singh Vs State of Jammu& Kashmir, AIR 1986 SC 494, 6. Sunil Batra Vs Delhi Administration, AIR 1980 SC 1579 7. A.K. Kripak Vs Union of India, AIR 1970 SC 150 8. P.L. Lakhan Pal Vs A.N.Ray, AIR 1975 Del.66 The writer can be approached at [email protected]