Role of Judiciary in granting Constitutional Damages

Historical Background of Writs The judicial history of India is very closely connected with the judicial history of England since the present judicial system in India is predominantly of British heritage. Originally in England the judicial institutions began with Anglo Saron courts and during the period of William the conqueror, the itinerant justices came into existence. Though the court of kings Bench began to function even during the period of William, the conqueror, a final shape, separating judicial functions from legislative functions, was given to it during the period of Henry II. Thus in course of time the Court of Common pleas, the Court of Exchequer, the Court of Chancery etc, came into existence with specified judicial functions. Originally, the extra ordinary power of issuing a writ was being exercised by Crown only but by gradual growth of the judicial institutions in Britain, now these writs are being issued by courts. The Indian judicial history in this context can be traced back from 1618 when Sir Thomas Roe entered into a treaty with Emperor Jahangir regarding the settlement of disputes between themselves by themselves. This was followed by charters of 1661 and 1683 and subsequent thereto the Mayors courts came into existence in the year 1726 apart from the establishment of Native Courts. During the period of Warren Hastings Suddar Dewani Adaulat and Saddar Nizamat Adaulat came into existence and by virtue of the Regulating Act of 1773, a Supreme Court was established at Fort Williams but because its authority was not well defined, it paved the way for passing of the statute of 1781, Acts of 1784, 1786, 1793 and 1813. In the year 1862, the Indian High Courts Act, 1862 was passed establishing High Courts at Calcutta, Madras and Bombay. The Federal Court came into existence by the virtue of Government of India Act, 1935 and by the virtue of the Federal Court Order, 1947 the said federal court became the federal court of domination of India and

ultimately after the constitution of India came into force the present judicial institutions came into existence. Supreme Court Articles 124 to 147 of the constitution of India deal with the union judiciary. An appeal lies to Supreme Court from any judgment, decree or final order of High Court in a civil, criminal or other proceeding if the high court certifies that the case involves a substantial question of law regarding interpretation of the constitution and where such certificate is refused by the High Court, the Supreme Court may grant special leave to appeal if it is satisfied that the matter involves a substantial question of law relating to the interpretation of the constitution. Where violation of fundamental rights are established, it is the duty of High Courts and Supreme Court to enforce the same and writ cannot be refused. High Court There shall be a High Court for each state. Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for the contempt of itself. Article 226 of the constitution of India deals with power of High Courts to issue certain writs like habeas corpus, mandamus, prohibition, quo warranto and certiorari. The courts have taken advantage of the open textured wording of articles 32 and 226 of the constitution. These articles have given freedom to the courts to mould the remedies and even invent new remedies for the enforcement of the rights. Traditionally, the writ jurisdiction was supposed to be an exercise only for stopping or preventing a mischief not for providing relief for mischief already done. If a person was illegally detained, a court could set him free but could not provide compensation for wrongful confinement or punishment for the wrongdoer. The person concerned had to prosecute or sue the policy or any other authority

responsible for such illegal detention. In India, there has been a very weak tradition of tort litigation because of delays, High Court costs and Indian judges tendency to award meager compensation. In England, the Kings courts exercised the power of judicial review over all subordinate courts and administrative authorities with a view to ensure that they acted within the limits drawn upon their powers by law. The courts were endowed with power to issue prerogative writs such as habeas corpus, mandamus, certiorari, prohibition and quowarranto for enforcing such limits. If a person was illegally detained or arrested, the writ of habeas corpus was issued to set him free. If a tribunal or an administrative authority acted illegally, it could be stopped from proceeding by the writ of prohibition or its decision could be quashed by the writ of certiorari. Mandamus was a writ issued for compelling an authority to do what it was legally bound to do or to forbear from doing what it was forbidden by law to do. If a person occupied a public office illegally or by usurpation, he could be asked to vacate it by issuing the writ of quo-warranto. It was because of the efficacy of these writs that Dicey said that liberty of an individual emanated from remedies provided by the courts. It, therefore, used the writ jurisdiction for awarding token compensation to the aggrieved person. The first case in which such compensation was awarded was Rudal Shah v. Bihar 1, Rudal Shah had been arrested on the charge of murder in 1953 and was acquitted in 1968. He, however, continued to languish in prison until 1982. The jail authorities said that he had been insane but could not show on what basis he had been adjudged as insane and what measures had been taken to cure him. It was obviously a case of illegal imprisonment due to sheer carelessness and callousness. The court not only set him free but also asked the state to pay him Rs. 30,000 /- as compensation. Since then compensation had been awarded in a number of cases. 2

1. AIR 1983 SC 1086. 2. S.P. Sathe, Administrator law, P. 466 (6th edn. Butterworths, 1998)

The infringement of fundamental right must be gross and patent, i.e, incontrovertible and ex facie glaring and either such infringement should be on large scale affecting the fundamental right of a large number of persons or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the persons affected by such infringement to initiate and pursue action in civil courts. Thus award of compensation was to be made under the writ jurisdiction when 1) 2) 3) fundamental rights were infringed of a large number of people of people who were helpless, resource less and socially and economically

disadvantaged. The writ jurisdiction under articles 32 and 226 was held to include the power to award compensation so as to partly undo undo the effects of infringement of fundamental rights of those who could not undertake civil litigation in pursuit of their claim for compensation. A right without remedy is of no value. It is the remedy that makes a right real. If there is no remedy it might be said that there is no right at all. While enunciating fundamental rights, the constitution sought to make them real by providing remedies for their enforcement. Article 32 provides a guaranteed remedy for the enforcement of fundamental rights and this remedial right is itself made a fundament right by being included in Part III of Constitution. In respect of fundamental rights, the Supreme Court has been assigned the role

of a sentinel on qui-vive under clause (2) of article, The Supreme Court has been given the power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, whichever may be appropriate for enforcement of any of rights conferred by Part III of Constitution. Under clause(3) ,Parliament is given the power by law to invest any other court to exercise within the local limits of its jurisdiction all or any of powers exercisable by the Supreme Court under clause (2). Clause(4) guaranteed that the right to move the Supreme Court under article 32 shall not be suspended except as otherwise provided for by the constitution. Article 226 of the constitution confers extra ordinary jurisdiction on the High Court to issue high prerogative writs for the enforcement of fundamental rights or for any other purposes. It is wide and expansive. The constitution does not place any fetter on exercise of ordinary jurisdiction. It is left to the discretion of the High Court 1. The High Court under article 226 is required to enforce rule of law and not pass an order or direction which is contrary to what has been infected by law. 2 A writ petition is filed in public law remedy. The High Court while exercising a power of judicial review is concerned with illegality, irrationality and procedural impropriety of an order passed by the state or statutory authority.3 The superior courts while entertaining a writ petition entertaining a writ petition exercise a limited jurisdiction of judicial review, inter alia, when constitutional/ statutory protection is denied to a person.4 Access to justice by way of public law remedy would not be in a position to grant appropriate relief. 5 Under article 226, High Court is empowered to exercise its ordinary jurisdiction to meet unprecedented extraordinary situation having no parallel. These powers are required to be sparingly used. The instant case was most extraordinary which called for High Courts interference as the state government had dismissed about 2 lakh employees for going on strike.6 Unless the action challenged in the

writ petition pertains to the discharge of a public function or public duty by an authority, the courts will not entertain a writ petition 1. Life Insurance Corp. of India v. Asha Goel, AIR 2001 SC 549. 2. Karnataka State Road Transport Corp. v. Ashrafulla Khan, AIR 2002 SC 629. 3. Dwarka Prasad Aggarwal v.B.D. Aggarwal, AIR 2003 SC 2636. 4. Sarabjit Rick Singh v. UOI, (2008) 2 SCC 417. 5. Sanjana M.Wig v. Hindustan Petroleum Corp. Ltd, AIR 2005 SC 3454. 6. T.K. Rangarajan v. Govt. of T.N., AIR 2003 SC 3032. which does not involve the performance of the said public function or public duty by an authority, the courts will not entertain a writ petition which does not involve the performance of said public function or public duty.7 Every action of state or its instrumentality, which is illegal, in contravention of prescribed procedure, unreasonable, irrational or malafied is open to judicial review. 8 Every executive or administrative action of the state or other statutory or public bodies, legally treated to be authority, which is violative of fundamental rights or any statute is open to judicial review. Remedies are available in cases of torts also. Such action is subject to judicial review even if it pertains to the contractual field. 9 New question arises what is judicial review? Judicial review is the power of courts to pronounce upon the constitutionality of legislative acts which fall within their normal jurisdiction to enforce and the power to refuse to enforce such as they find to be unconstitutional and hence void10. Judicial review is a judicial weapon to strike down the power exercised in excess or exercised arbitrarily or exercised in contravention to what is mandated in the constitution, by the legislative and executive organs of the state. Thus, the concept has the origin in the theory of limited government and in the theory of two laws-an ordinary and supreme. If the ordinary law as

made by the legislative contravenes the provisions of the supreme law then there must be some organ which is to possess the power or authority to pronounce those legislative acts as void, such power in the present system is vested in the institution of judiciary.10 7. ABL Int. Ltd. v. Export credit Guarantee Corp. of India, (2004) 3 SCC 553. 8. M.I. Builders Pvt. Ltd. v. Radhey. 9. Style v. UT, Chandigarh, (1999) 7 SCC. 10. Though the Indian constitution provides express provisions for judicial review but even in the absence of such provisions the courts would have been able to invalidate a law which contravened any constitution provision, for such nature of constitutional law.

The administrative actions also fall within the ambit of judicial review. If the rule of law and the conformity to the provisions of the constitution is to be maintained, it is necessary that the administrative authorities are also brought under the control of courts of law. Judicial review helps in proper administration of justice. The activist Supreme Court in order to make justice available to poor and weaker sections of society, has done away within the traditional rule of locus standi, i.e, the party whose right is infringed can only apply under article 32. Today, a progressive approach is followed. The court now permits public interest litigation or social action litigation at the instance of Public Spirited Citizen for the enforcement of constitutional and other legal rights of any person or group of persons who because of their poverty or socially or economically disadvantaged position are unable to approach the court for relief.11 In A.B.S.K.Sangh (Rly) v.UOI12 the court held that the Akhil Bhartiya Soshit Karamchari Sangh (Rly), though an unregistered association could maintain a writ petition under article 32 for the redressal of a common grievance. Access to justice through class

action, public interest litigation and representative proceedings is the present constitutional jurisprudence. Hence, the power of judicial review has enabled the judiciary to control the power of legislative and executive organs of the state. Just think of a situation when a law enacted by the legislative is challenged and if legislature is made to decide upon the validity. The decision is obvious, it would never let its succumb to the challenges made against it. Therefore, if unlimited power are given to the legislative and executive organs of the state then there will be rule of men and not of law. Democracy will give way to dictatorship and 11. Mumbai Kamgar Sabha v. Abdulbhai, AIR 1976 SC 1455, J. Krishna Iyer gave liberal expansion to the locus standi rule. 12. AIR 1981 SC 298.

justice will be delivered according to the whims and fancies of the rulers. That is why, the Indian Constitution makes board division of powers and specifically provides under article 50 that judiciary should be independent and separate from the executive13. In exercise of the power of judicial review, the court either upholds the constitutionality of an act or declares such act as unconstitutional, invalid or ultravires. In case of a legislative enactment, when it is declared unconstitutional the effects are reaching. In an American case, Norton v. Shelby county,14 the court held constitutional act is not a law, it confers no right, it imposes no duties it affords no protection, it creates no offices, it is, in the legal contemplation as inoperative as though it has never been passed. In Keshav Madhav Menon v. State of Bombay,15 Justice Mahajan stated on the similar lines as to what was quoted in the American case that unconstitutional statute is void since inception and anything done under it is void and illegal, even convictions made under it are set aside; and the person affected is entitled to relief.

The effect of judicial review in administrative actions is that it affects directly the concerned government department or agency. Judicial review has an impact on public bodies and has the capacity to perform an educative role; to provide public authorities with principles and standards to guide their future decision making.16 General Principals relating to Article 226 1. Power of judicial review is implicit in a written constitution and unless expressly

excluded by a provision of the constitution, this power is available in respect of exercise of

13. Article 50, Separation of judiciary from executive. 14. 118 U.S. 425, 442 (1886). 15. AIR 1951 SC 128. 16. Public Law, Judicial Review; Questions of Impact by G.Rcihardson & M.Sunkin.

powers under any provisions of the constitution. 17 Judicial review is the heart and soul of the constitutional scheme. Judiciary is constituted as the ultimate interpreter of the constitution and is assigned the delicate task of determining the context. There are reviewable discretions under the constitutional dispensation.18 A High Court would be within its jurisdiction to modify the punishment/penalty awarded to a government servant in disciplinary proceeding by moulding the relief. In case of dismissal, article 21 gets attracted and , in view of inter dependence of fundamental rights, the punishment penalty awarded has to be reasonable ,and if it is unreasonable article 14 would be attracted which can be taken care of it by substituting a punishment deemed reasonable by it. 19 While exercising the power of judiciary review, the High Court or Tribunal, can not normally substitute their own conclusion on penalty and impose some other penalty in disciplinary proceeding against a government servant but if punishment imposed shocks its conscience, it would appropriately

mould the relief by directing the disciplinary/appellate authority to reconsider the penalty imposed ,or ,to shorten the litigation. 2. Article 226 is couched in the widest possible terms and unless there is a clear bar to

its jurisdiction, its power under this article can be exercised when there is any act which is against any provisions of law or violative of constitutional provisions when recourse cannot be had to the provisions of the Act for the appropriate relief.20 3. Article 226 empowers the High Court to issue writs, directions or order in the nature

of habeas corpus, mandamus, prohibition, quo warranto and certiorari(a) for the enforcement of any of the rights conferred by part III and (b) for any other purposes. Under the first part, a writ may be issued under the article only after a decision that the 17. A.K. Kaul v. UOI, AIR 1995 SC 1403. 18. Election Commission of India v. UOI, 1995 Supp. (3) SCC 643. 19. B.C. Catered v. UOI, AIR 1996 SC 484. 20. K. Venkatachalan v. A. Swamickan, AIR 1999 SC 1723.

aggrieved party has a fundamental right and that it has been infringed, under the second part, it may be issued only after a finding that the aggrieved party has a legal right which entitles him to any of the aforesaid writs and that such right has been infringed. 21 In absence of any legal right, the writ should not act on the basis of sympathy alone.22 4. Where there has been infringement of fundamental rights, an application under

article 226 should not be thrown out simply on the ground that the proper writ has not been prayed for23. The petitioner is entitled to a suitable order for protection of his fundamental right, 24 or enforcement of the legal duty of the respondent.25

Thus, where the petitioner has asked for relief in a very wide form, the court would issue the order in the proper form.26 A High Court is as much bound as the Supreme Court to enforce the fundamental right guaranteed by the Constitution.27 5. The power of judicial review under article 226 is not directed against the decision

but is confined to the decision making process. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. The court sits in judgment only on the correctness of the decision making process & not on the correctness of the decision making process and not on the correctness of the decision itself.28 6. The Supreme Court held that the High Court exceeded its jurisdiction in entertaining

a writ petition in respect of an order proceedings regarding the legality of which were 21. State of Orissa v. Madangopal Rungta, AIR 1952 SC 12. 22. State of M.P. v. Sanjay kumar Pathak, (2008) 1 SCC 456. 23. Charanjit lal v. UOI, AIR 1951 SC 41. 24. Himmat lal v. State of M.P., AIR 1954 SC 403. 25. State of Mysore v. Chandrasekhar, AIR 1965 SC 523. 26. Yasin Hohammad v. Town Area Committee, AIR 1952. SC 115. 27. Supra Note 24. 28. H.B.Gandhi v. Gopinath & Sons, (1992) Supp (2) SCC 312. pending before the CAT which has passed an order of status quo.29 7. The court should not interfere with matters that do not involve violation of any law,

even though agitated against by a section of people. It has no jurisdiction to access the decency or indecency of a show about which two views might be possible. Also it should not direct which force to be used to maintain law and order which is the job of the executive.30

8.

The High Court in exercise of its power under extraordinary jurisdiction cannot

interfere with a collateral proceeding initiated by the High Court itself in an application filed in public interest.31 9. The writ jurisdiction of High Court can not be circumscribed by the provisions of the

enactments, they will certainly have due regard to the legislative intent of them and would exercise their jurisdiction in consistence with the provisions of Acts, i.e, to effectuate the regime of law and not to abrogate the same.32

Against whom maintainable

A writ petition under article 226 may be maintainable againsta) state, b) an authority, c) a statutory body, d) an instrumentality or agency of the state, e) company financed and owned by the state , f) a private body run substantially on state funding, g) a private body discharging public duty or positive obligation of public nature, h) a person or a body under liability to discharge any function under any statute to compel it to perform such statutory function. However, a writ of mandamus can be issued to any person or authority performing public duty, owing positive obligation to the affected party.33 29. State of U.P. v. Sunanda Prasad, (1999) 6 SCC 34. 30. ABCL v. Mahila Jagran Manch, (1997) 7 SCC 91. 31. Mahonar M. Galani v. Ashok N. Advani, (1999) 8 SCC 37. 32. Maftlal Indus. Ltd. v. Collector of Central Excise. Bombay, (1998) 9 SCC 712. 33. Federal Bank Ltd. v. Thomas, AIR 2003 SC 4325.

Purposes for which the power under article 226 may be exercised The power of High Court to issue of writs under article 226 can be exercised for a two fold purpose, viz; the enforcement of (a) fundamental rights, as well as of (b) nonfundamental or ordinary legal rights34. The words for any other purpose at the end of article 226 make the jurisdiction of High Court to issue the writs more extensive than that of the Supreme Court in as much as these words are absent from article 32 and the Supreme Court may have power for other purpose only if such power is conferred by legislation. But article 226 itself confers upon High court power to issue the writs for the enforcement of fundamental rights as well as for other purpose.35 For the enforcement of fundamental rights (i) The jurisdiction of the Supreme Court under article 32 or of High Court under article 226 to enforce a fundamental right arises where a fundamental right of the petitioner has been affected by an act or order of in the following case, interalia: 36 a) b) c) d) Where the action has been taken under a statute which is ultra vires the constitution; Where the statute is intra vires but the action taken is without jurisdiction; Where the action taken is procedurally ultra vires, 37 Where the authority, being under an obligation to act judicially, passes an order

which is in violation of the principles of Natural Justice.38 (ii) Since the jurisdiction of High Court to enforce fundamental right under article 226 is similar to that of Supreme Court under article 32, principles laid down by the Supreme Court under article 32 are directly applicable to the jurisdiction under article 226, so far as the enforcement of fundamental rights are concerned. 34. State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12. 35. Ibid.

36. Olga Tellis v. Bombay Municipal Corp., AIR 1986 SC 180. 37. Ibid. 38. Ibid.

applicable to the jurisdiction under article 226, so far as the enforcement of fundamental rights is concerned. 4. Any other purpose means a purpose for which any of the writs could, according to

well established principle, 39 issue. The result is that while under the first part, a writ may be issued under the article only after a decision that the aggrieved party has a fundamental right and that it has been infringed under the second part, it may be issued only after a finding that the party aggrieved has a legal right which entitles him to any of the aforesaid writs and that such right has been infringed.40 Any other purpose, in short, means the enforcement of any legal right41 and the performance of any legal-duty. A legal right means any legally enforceable right, and includes contractual rights, 42 other than merely personal rights.43 when there is negligence of public duty on the face of it and infringement of article 21, there will be no bar to proceed under article 226.44 5. The court martial proceedings are subject to judicial review.45

Power of Supreme Court under article 32 and High Courts under article 226 compared and contrasted The power under article 226 is comprehensive and wide enough to reach injustice wherever found. The scope of powers of High Court under article 226 is wider than the scope of powers of Supreme Court under article 32 of the constitution. The relief prayed for in the petition is one which 39. Election Commissioner. v. Saka Venkata Rao, (1953) SCR 1144. 40. Cf. Samnarth Transport Corp. Ltd. v. Regional Transport Auth., AIR 1961 SC 93.

41. State of Orissa v. Madangopal Rungta, AIR 1952 SC 12. 42. Calcutta Gas Co. v. State of W.B., AIR 1962 SC 1044. 43. Banchhanidhi Rath v. State of Orissa, AIR 1972 SC 843. 44. T.N. Electicity Board v. Sumathi, AIR 2000 SC 1603. 45. UOI v. Major A. Hussain, (1998) 1 SCC 537. may be granted by High Court can approach Supreme Court by way of an appeal. The facts that some cases involving the very same point of law is pending in the Supreme Court is no ground to entertain a petition directly by passing the High Court. It the parties get relief at High Court, they need not come here and to that extent the burden on the Supreme Court is reduced. The hearings of the case at the level of the High Court are more convenient from several angles and will be cheaper to the parties. It saves a lot of time too. Besides the principle pertaining to pleadings in a suit before a civil court would not strictly be applicable in a writ jurisdiction of High Court. In this connection reference has been made on behalf of the ticea mazdoors to a bench judgment of High Court in case of Consumer Education & Research Center v. State of Gujarat , 46relying upon the number of decisions of the Supreme Court, the bench found that in exercise of the extra ordinary powers under article 226 of Constitution of India, it would be open to the High Court to mould the relief to meet with peculiar and complicated requirements so as to make granting of the relief effective and that wide powers have been conferred on High Court to reach injustice wherever it is found.47 It is no doubt, true that the courts have been held that while granting custody of the minor child, the courts are to take into consideration the paramount interest of the minor child. In the instant case the child is said to be about 6 months old. In the decision of Veena Kapoor v. Varinder Kumar Kapoor, 48 the Apex Court has held that the dismissal of the writ petition which is filed for habeas Corpus is incorrect in as much as the courts held that unless there is an enquiry as to whether the petitioner is entitled to the custody of minor

children, the High Court ought not to have dismissed the writ petition. While holding so, the Supreme Court directed the District Judge concerned to make an enquiry and give a finding 46. (1981) XXII Guj LR 712. 47. RBI v.C.D. Chauhan, 1994 (2) Civil LJ 212. 48. AIR 1982 SC 792.

as to who is entitled for custody of minor children.49 It is open to the police to take action according to law against the petitioner and his family members if they are found to be indulging in the commission of any offences. This however, will not entitle the police to interfere with their life, liberty and privacy without following the due procedure prescribed by law. Article 21 of the constitution ordains that no person shall be procedure established by law. Accordingly there will be a direction to the respondents not to interfere with the life and liberty of petitioner and his family without following the procedure established by law. This will not preclude the respondents from taking action according to law for prosecuting the petitioner and his family members if they are found to be indulging in commission of any offences. As regards the allegation that fifth respondents along with some constables forcibly entered the petitioners house and took away articles worth Rs. 10000/- on 8th Aug, 1995, the same is denied by the fifth respondent in counter affidavit. It will be open to the petitioner to take appropriate proceeding in accordance with law for recovery of articles alleged to have been taken away by the fifth respondent or their value from him and also for prosecuting him for the alleged offences.50 The High Courts have concurrent jurisdiction with the Supreme Court to issue directions, orders and writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, whichever may be appropriate, for the

enforcement of fundamental rights51 and for any other purpose which expression is wide enough to include any legal rights of persons or citizens, 52 where such rights are infringed.53 49. G.Hari Padma v. G. Sridhar, (1998) 6 Andh LT 408. 50. P. Sambhalah v. Govt. of A.P., (1998) 2 An WR 449. 51. Ramesh Thapper v. State of Madras; AIR1950 SC 124 52. New Educational society v State, AIR 1968 Goa 49. 53. Biharilal Kanhaiyalal v. State of Gujrat, (1969) 10 Guy LR 635. High Courts and Supreme Court both can interfere in the punishment awarded to delinquent employee in disciplinary proceedings if the punishment shocks conscience of Courts.54 Nature and Scope of Jurisdiction The Jurisdiction under the two articles, though very wide and extensive, is not unlimited. The limitations have been crystalised.55 The limitations are one of jurisdictions and power. Writ jurisdiction under article 226 of the constitution of India is to be exercised sparingly by the High Court, much more so when alternative remedy is provided by the legislature and is available to the petitioner. In the scheme of our constitution, court is sentinel of the fundamental rights of the people. The court has to safeguard the fundamental rights of the people. This is the bounden duty of the court. But at the same time pragmatic, considerations demand that certain restraints be exercised by the courts themselves in exercise of these extraordinary powers under article 226 of the Constitution of India. If this is not done the system itself would collapse. The care which the court should take is that while exercising this restraint the object of safeguarding the fundamental rights of citizens should not be frustrated. Following aspects are required to be kept in mind while

entertaining a matter under article 226 of constitution of India even when there is alternative remedy: a) It should not be forgotten that powers under article 226 of constitution of India are to

be exercised sparingly and the remedy of petition under article 226 has not been devised by the framers of the constitution as an alternative forum for redressal of grievance of the citizens which arise in normal working of government and /or statutory co-operation. The very phrase extra 54. U.P. SRTC v. Mahesh Kumar Mishra, AIR 2000 SC 1151. 55. Veerapa Pillai v. Raman Ltd., AIR 1952 SCR. 583. ordinary remedy suggests that it is not to be resorted to for which ordinary remedy is available. b) The legislature provides for alternative remedy by making necessary provisions in

the relevant statute or in relevant rules and regulations. The object of making this provisions is to see that the persons governed by the statutes and/or relevant rules, whenever adversely affected, have a royal road to proceed further for redressal of their grievances. c) It is true that availability of alternative remedy is nothing but a rule of convenience.

For the sake of convenience, the court may refuse to exercise jurisdiction on the ground of alternative remedy. A university professor who works as a guide for Ph.d.students can certainly be said to be well qualified to do the work of a primary school teacher. That does not mean that the professors imparting the work of training the pupils of primary school. There is world of difference between can and should. Simply because the High Court can entertain such a petition it does not mean that in all cases the High Court should entertain such matter. If this distinction is not borne in mind and ordinary channels for redressal of the grievances of citizen are not allowed to be fully utilized as intended by the legislature, emergency gates or

escape routes would very probably burst out leading to chaos in the system. Therefore the rule of convenience demands that the litigants be not allowed to bypass their normal channel and be not permitted to use the emergency gates and / or escape routes as an ordinary passage.56 Scope In England, the proceedings for enforcement or rights through a writ are civil in

56. T.K. Rabari v. State of Gujrat, (1989) 1 LLJ 98 PP. 99, 100.

nature and petition in India, under article 226, is not different. 57 The jurisdiction under article 226, can be exercised only in interest of justice and Can not be invoked for unfair advantage58. This jurisdiction can be invoked only when there is infringement of petitioners right or alleged threat to it.59 Persons other than those claiming fundamental rights can also approach the High Court seeking relief under article 226,60 because the scope of writs available under article 226 has been widened by use of expression nature which expression does not equate the writs that can be issued in India with those in England but draws an analogy from them, 61 and a writ, order or direction will issue to remedy a wrong but not to promote one. 62 The courts are certainly the ultimate authority to retrain all exercise of absolute or arbitrary power by subordinate tribunals. Writ can be issued even in cases of infringement of private right by any person or authority if some statutory authority or officer has passed any order causing such infringement. It has also been held that in such cases it is not necessary as to what is the source of power. The source of power may be from the bye-laws which also have no statutory stature.63

57. Shiv Prasad v. State of U.P., AIR 1965 All 106. 58. Begum A. H. Khan v. R.T.A. Meerut, 1963 All LJ 909. 59. B.C. Das v. R.C. & E.O. Allahabad, AIR 1952 All 8. 60. Calcutta Gas Co. Ltd. v. State of W.B., (1962) 2 SCA 147. 61. Dwarka Nath v. I.T.O., Kanpur, (1965) 2 SCA 868. 62. K.Ramulu v. D.C. of Excise,Hry, (1964) 1 And Lt 403. 63. Raghunath Dwivedi v. V.C. University of Allahabad, AIR 1996 All 310. One such limitation is that the High Court will not normally go into disputed questions of fact.64 Under article 226, power is achieving twin objectives, one is for the enforcement of any of rights conferred by part III and other is for any other purpose. But it is well settled that when there is an infringement of fundamental right, the court will liberally consider the objection on the ground of delay and laches. Thus the power under article 226 of the constitution has been conferred in a very wide terms and to secure the aforesaid two objectives. This makes the jurisdiction of High Court under article 226 of Constitution much wider than the jurisdiction conferred on the honble Supreme Court under article 32 of constitution.65 Although there is no law which prevents High Courts from taking or scanning evidence for investigating a pure question of fact and article 226 has imposed no such limitations as are imposed appeal.66 However, in view of the nature of jurisdiction under article 226, the High Court should not determine question of fact, nor should it determine whether a scheme has been validly framed67, nor would it be open to a petitioner to challenge the merits of finding68 nor under section 100 and 101 Civil Procedure Code in a second

will the High Court function as a court of appeal and examine the question whether the findings were based on a proper assessment of probative value of evidence, except in exceptional cases such as examination of fact on which jurisdiction of an authority depends, or such when a finding is shown as tainted with any error of law apparent on record

64. D.L.F. Housing Const. (P.) Ltd. v. Delhi Municipal Corp. Ltd., AIR 1976 SC 386. 65. Mohan Prasad Singh v. State of Bihar, 1999 (3) BLJ 200. 66. Raja Himanshu Dhar Singh v. Addl. Registrar Co-op Societies, U.P., AIR 1962 All 439. 67. Sri Jagadgur v. Commr. of AIR 1965 SC 502 68. Associated Cement Co. Ltd Hindu Charitable Endowment, Hydrabad ,. v. P.D. Vyas, (1961-62) 20 FJR 59. of law apparent on record or vitiated for contravention of rules of Natural Justice or want of jurisdiction or such when unreasonableness of inference is patent on record or when the construction of a statue is found to be wrong. The exercise of jurisdiction under article 226 is judicial and not administrative. Therefore, it is not open to High Court to hold in any case whether in doing a particular act, e.g., that a particular building is required for state purposes69, the government or any other officer was justified, malafides being always an exception70. The property belonging to the army is the property of the central government over which any citizen can maintain a petition if any of his fundamental rights is infringed. Holding the Indian army to be distinct entity would lead to dangerous consequences. Such a conclusion would result in giving a license to various organs of union of India to claim independent and distinct rights in their favour.71 Where a finality to any matter is attached by provisions of a statute, that matter does not remain justifiable, and the finality so created by statute may operate even to restrict

power of Supreme Court under article 32.72 But that does not mean that the jurisdiction of High Court under article 226 or Supreme Court under article 32 or on appeal, has been impaired. What follows is that the special powers of these courts cannot extend to reopening a finding by state government given under the provisions of an Act. 73 Thus the High Court or Supreme Court can not go into the question of unfairness or unreasonableness of a rule, and what these courts can see is whether such rule is valid and applicable. 74 So again, when the allegation is that certain 69. Revenue Divisional officer, Salem v. D. Krishnamurthy, AIR 1961 Mad 475. 70. Ibid. 71. G. Khot v. Station Commandant, Belgaum, AIR 1998 Karnatak 300. 72. Somvati v. State of Punjab, Air 1963 SC 151. 73. Lilawati Bai v. State of Bombay, 1957 SCR 745. 74. Hazarilal Srivastva v. Tulsipur Sugar Co. Ltd., AIR 1964 All 411.

application on behalf of the petitioner had been made under some misapprehension or in ignorance of petitioners rights, it is for petitioner to approach the appropriate authorities and it is not open under the writ jurisdiction to interfere in such matters. The point is that matter which is within exclusive jurisdiction of a lower tribunal under some special act as for example a question of urgency in any matter or, say a question of existence of any industrial dispute 75, the same is not open for examination of High Court under article 226.76 The power under article 226 is jurisdictional. The High Court acting under this article exercise jurisdictions
77

and existence of right is foundation of High Courts

jurisdiction under that article78, and therefore, the conferment of an additional power on existing courts or even the creation of new courts does not create any new jurisdiction.79

The jurisdiction under article 226 is special and peculiar right, and it can not be utilized simply to enable a petitioner to advance a money claim. Therefore, powers of an appellate authority under particular provisions of statute are much wider and an analogy between appellate powers under the provisions of statute and that under article 226 cannot be drawn.80 The proceedings of a writ are summary proceedings and the High Court can not start, in proceedings under this article such inquiry as can be done in regular suit nor can it be questioned under this article that the appellate tribunal has not set out in its judgment all the relevant reasons.81 75.Management of Rly Employees Cop. credit society Ltd. v. Industrial Tribunal , 1962 Raj LW 417. 76. Girdhari Lal Bulaki Ram v. LJ. Johnson, AIR 1961 Puny 464. 77. Khacheru Singh v. S.D.O. kirsuya, ILR (1960) 1 All 429. 78. RTA, Gorakhpur v. Kanshi Prasad Gupta, AIR 1962 All 551. 79. Sheo Prasad v. State of U.P., AIR 1965 All 106. 80. Collector of Contral Excise, Madras v. V.K. Palappa Naddar, AIR 1964 Mad 111. 81. Sri Rama Vilas Service (P) Ltd. v. C. Chandraskher, AIR 1965 SC 107. It is only in extraordinary case where authorities act without jurisdiction, the High Court can interfere in exercise of the powers conferred under article 226 of the constitution.82 In the instant case the writ petition was taken up in the form of public interest litigation on the basis of petition sent by petitioner. The petitioner is an educated and is a doctor by profession. He is seeking a personal relief to himself. It is not a litigation being fought in the interest of public cause. The question whether he is in possession of the premises in question or not is a pure question of fact. He states that he is in possession of the

premises, whereas, the owner states he is not in possession. The inspector of police in his counter affidavit stated that the cases were registered on the complaints filed by the parties and on enquiry during investigation it was found that the owner is in possession of the garage and that was not given on rent to the petitioner. The garage was demolished by landlady. No car was kept by the petitioner is not in possession of the garage. The petitioner, when examined, did not produce rental deed or any document to prove that he is in possession of the premises. The writ petitioner has misconceived his remedies in filling the writ petition invoking the jurisdiction of the High Court under article 226 of the constitution of India, particularly when the merit or otherwise of the claim, which requires to be proved and substantiating seriously dispute factual issues, which requires to be proved and substantiated on the basis of oral and documentary evidence that may be adduced by either of the parties. A challenge to the merits of findings83 is not open in proceedings under article 226 and even if there be an error of law apparent on the face of record, the usual course in the issue of writ is to correct the error and send the case back to the concerned tribunals 84. In the exercise of jurisdiction under article 226, the validity of an order should be judged a consideration of its on 82. E.I.D. Parry (India) Ltd. v. Regional Director, TN, ESI Corp., 1995 (1) MLJ 261. 83. Associated Cement Co. Ltd v. P.D. Vyas, (1960) 1 Lab. LJ 563. 84. T. Prem Sagar v. Standard Vaccum Oil Co., Madras, (1964) 5 SCR 1030. substance and not its form and if it can be shown that an order was within competence of authority to pass, under some provision, the fact that the order purports to be made some wrong provisions, can not fall the competence of that authority,
85

and it is not for the High

Court to say whether the authority has taken a correct view of the facts or whether it has

interpreted any documents rightly or wrongly,86 nor would the High Court interfere where a previous grant has been superseded as an obvious case of mistake.87 It is very well within the jurisdiction of High Court to quash any proceedings before any, tribunal including labour court, if it finds that its appointment is illegal or unconstitutional or ultra vires88. If there is violation of any statutory rule or if any rule exists which is contrary to any existing Act, the High Court would strike down the rule and hold it illegal or ultra vires89, and when the validity of an order is challenged, the High Court would not be restricted merely to the pleading of the state, and any particular statement in a counter-affidavit will compel High Court to examine validity of the impugned order in that background only. The court will not embark on a trial of some issue. Protection of environment is a constitutional goal. It has to be realized by active guards of the state and citizens thereof. As was directed by the apex court in Charanlal Sahu v. UOI90, steps should be taken to create separate tribunals, and appoint a body of experts to advise the government in environmental issues. States should play a positive role for the protection of environment. This being a constitutional mandate, welfare of the people at large has to be 85. Abdul Ahmed v. I.G.P., U.P., (1965) 1 Lab. L.J. 791. 86. Jagannath Prabhashankar Joshi v. Vasikar, AIR 1961 Bom 244. 87. Debi Ram Sharma v. HC of Judicature for State of Punjab, AIR 1963 Puny 46. 88. PNB v. G.M. Hajee, Labour Court, 1969 Lab. I.C. 1574 (J&K). 89. 1968 Kash LJ 106. 90. AIR 1990 SC 1480.

looked into, and in such matters the court can not sit with eyes closed. A petition under article 226 can be disposed of on the basis of uncontroversial statements made in counteraffidavit on the footing that facts states in such counter-affidavit are correct.91 Power of High Court in revision can not be said to be wider than those under article 226.92 The decision in writ petition for habeas corpus, has to be regarded as decision of the High Court rather than any of its bench as separate court.93 The scope of judicial review in confined to two circumstances, i.e. a) b) Where there is judicial review in confined to the part of state financial company. Where the state financial corporation acts unfairly, i.e, unreasonable while exercising

its jurisdiction under article 226 of the constitution, the High Court does not sit as an appellate authority over the acts and deeds of the corporation. Similarly, the courts other than the High Courts are not to interfere with action under section 29 of the State Financial Corporation Act unless the aforesaid two situations exist. 94 While judicially reviewing an administrative decision, the duty of the court is to confine itself to the question of legality its concern should be a) b) c) d) e) whether a decision making authority exceeded its powers, committed an error of law, committed a breach of rule of the Natural Justice, reached a decision which no reasonable tribunal would have reached, abused its powers.

91. Bipin Bihari Das v. State of Orissa, (1967) 1 Lab. L.J. 787. 92. Bhartiya Hotel v. UOI, AIR Pat 476. 93. Ram Kumar v. DM, Delhi, 1966 Cr LJ 153.

94. State Financial Corp. v. Jagdamba Oil Mills, AIR 2002 SC 834. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the matter in which those decisions have been taken. The extent of duty to act fairly will vary from case to case.95 The writ court can not consider the relevance of qualification and eligibility prescribed for various posts to be filled up through an advertisement and there is no scope of judicial review in such situation.96 Powers not limited to prerogative writs 1. The public law remedy given by article 226 is to issue not only the prerogative writs

but also any order or direction to enforce any of the fundamental rights and for any other purpose. The distinction between public law and private law remedy by judicial adjudication is gradually getting marginalized and obliterated.97 2. The powers of High Court under article 226 like those of the Supreme Court under

article 32 are not confined to prerogative writs and High Court, in issuing directions, orders and writs under article 226 can travel beyond the contents of the writs which are normally issued as writs of habeas corpus, mandamus, prohibition, quo-warranto and certiorari.98 3. Article 226 speaks not of the English writs but of writs in the nature of those writs;

consequently, there is no reason why the High Courts in India should feel oppressed by the procedural technicalities of the English writs.99 Thus, the court can make order or issue a 95. Kanwar Pal Singh v. State of U.P., AIR 2002 All 27 at P.40. 96. Indra Kumar Shukla v. Zila Basic Shiksha Adhikari, Jaunpur, 2002 All LJ 691. 97. All India Statutory Corp. v. United Labour union, AIR 1997 SC 645. 98. Irani, P.J. v. State of Madras, AIR 1961 SC 1731.

99. T.C. Bassappa v. T. Nagappa, AIR 1954 SC 440.

writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law. The expression directions, orders or writs, including writs in the nature of certiorari reproduces the identical expression used in article 32(2), where it has been liberally interpreted.100 4. The court can also mould the relief to meet the peculiar to complicated requirements

of this country, 101 provided, in so doing, the High Court does not contravene any provisions of constitution or law declared by the Supreme Court in this behalf. 102 Any technical construction of this power would defeat the purpose of the article itself. 5. a. For the same reasonUnder article 226, the High Court has the power to set aside an ultra vires executive

order, whether or not the writ of certiorari is attracted to it, The same principle has been applied to prohibition.103 b. The court under article 226, has also the power to give consequential relief, such as

ordering repayment of money realized without the authority of law or under an invalid law.104 c. In proper cases, declaratory relief may be granted in a petition under article 226, e.g,

declaring some act of statutory body to be ultra vires and like,105 even though such relief was not brought in proceeding for a prerogative writ under English law.

100. Bandua Mukti Morcha v. UOI, AIR 1984 SC 802. 101. Dwarka Nath v. I.T.O., AIR 1966 SC 81. 102. Desai Jasbhai Matibhai v. Roshan Kumar , AIR 1975 SC 578.

103. Calcutta Discount Co. Ltd. v. I.T.O., AIR 1961 SC 372. 104. State of M.P. v. Bhailal Bhai, AIR 1964 SC 1006. 105. Bidi Leaves & Tobacco Merchants Assn. V. State of Bombay, AIR 1962 SC 486. 6. The Court can, under articles 32 or 226, give any direction requiring affirmative

action or positive activity where, under the corresponding prerogative writ, the court could only set aside the order complained of.106 Grounds upon which only an application should not be refused 1. Though it is desirable that the prayers in an application under article 226 should be

as specific and definite as they can be, the court is not powerless to afford necessary relief in proper cases. Merely because in the cause title article 226 has not been specifically mentioned and the proper writ or direction has not been prayed for, an application which is in substance one under article 226 cannot thrown out. The court should mould the remedy according to the circumstances of the case. Thus, certiorari may be issued where only prohibition was sought for.107 2. For the same reason, though the illegality of appointment of a de facto officer can

not be questioned in a collateral proceeding, where a party challenges the decisions or order of an officer on the ground that it was a nullity on account of his lacking the quantification for challenging the appointment. Hence, even though the writ of quo warranto may not have been specifically asked for in the petition, the court may, on such pleadings, declare the appointment invalid in such proceeding, because to strike down usurpation of office is a function and duty of High Court in exercise of its constitutional powers under articles 226 and 227.108 3. It is open to the applicant to ask for some specific reliefs and such other relief as the

court may been fit and proper.109 Under such residuary prayer, the court may grant an 106. State of Kerla v. T.P. Roshana, AIR 1979 SC 765.

107. Sriniwas v. S.D.O., AIR 1952 All 590. 108. State of Haryana v. Haryana Co-op. Transport Ltd; AIR 1962 SC 1161. 109. Satya Narain Singh v. Dy. Engineer, P.W.D., AIR 1954 SC 207. applicant the proper relief which he should get in view of changed circumstances, even though that relief may be altogether different from the specific relief asked for.110 Where Fundamental rights are not affected. 1. One of the grounds against the exercise of the discretion in such cases, would be that

the right claimed by the petitioner is not capable of being established in the summary proceeding under article 226 because it requires a detailed examination of the evidence as may be had in a suit.111 The object of article 226 is the enforcement and not establishment of right or title. A petition under article 226 cannot be converted into suit. In case of highly disputed questions of fact for decision, civil suit would be the appropriate action and the question of reasonableness of the scales of rates and statements of conditions framed by the Dock Labour Board for rendering services to the shippers can be decided by the central government and not by High Court in a writ petition112. 2. 3. The principle has been extended even to mixed questions of fact and law.113 In general, therefore, a disputed questions of fact is not investigated in a proceeding

under article 226, particularly where an alternative remedy is available114 e.g.a) b) The merits of rival claims to property or disputed question of title. Whether a person is foreigner within the meaning of the foreigners Act, 1946,

whether the petitioner was casual labourer or not.115 110. K.S. Rashid v. I.T.Investigation Commission., AIR 1954 SC 207. 111. UOI v. Ghaus Mohammad, AIR 1961 SC 1526. 112. Vishakhapatnam Port Trust v. Ram Bahadur Thakur Pvt. Ltd. AIR 1997 SC 1057. 113. M/S Sri Triumala Venkasteswara Timber v. C.T.O., AIR 1968 SC 784.

114. Jai Singh v. UOI, AIR 1977 SC 898. 115. Dabur Pvt Ltd. v. Workmen, AIR 1968 SC 17.

c) d) e) 4.

Where the determination is that of an expert body, in the absence of malafide, 116 Claims arising out of breach of contract or tort.117 Where the petition rests on allegations of malice in fact.118 This is, however, a rule of discretion and not of exclusion of jurisdiction. Hence, the

court is not, in a proceeding under article 226, incompetent to decide an issue of fact which can be determined from the materials on record. Hence, the court can not dismiss in limine a petition under article 226, merely observing that it raises a question of fact, without determining whether the question can be decided on the material on the record, whether the petitioner has an efficacious alternative remedy and whether the case is otherwise fit for exercise of the writ jurisdiction.119 Where the judgement, decree or order has been obtained by allegedly committing fraud on the court, it is obliged to decide the question regarding fraud recording evidence and in appropriate cases, it can recall its decree or order. 120 where the collector had already decided the question of fact as to the title to the property concerned and appeal against the said order was pending, the High Court was justified in not going into that question and relegating the parties to the decision of the appellate tribunal. 121 Seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in a properly instituted civil suit rather than by a court exercising prerogative of issuing writs122. A writ petition 116. Maheswar Prasad v. Suresh Singh, AIR 1976 SC 1404. 117. UOI v. T.R. Verma, AIR 1957 SC 882. 118. Regional Manager v. Pawan Kumar, AIR 1976 SC 1766.

119. Om Prakash v. State of Hry., (1970) VJ SC 481. 120. Indian Bank v. Satyam Fibres (India) Pvt. India, (1996) 5 SCC 550. 121. UOI v. S.J. Thauawalla, (1996) 8 SCC 469. 122. State of Bihar v. Jain Plastics & Chemicals Ltd. (2002) 1 SCC 216.

involving serious disputed questions of fact which requires consideration of evidence which is not on record, will not normally be entertained by a court in exercise of its jurisdiction under article 226 of the constitution, but there is no absolute rule that in all cases involving disputed questions of fact, the parties should be relegated to a civil suit. Where a Fundamental Rights has been infringed 1. As has been stated earlier under article 32, the Supreme Court has held 123 that where

the breach of fundamental rights has been prima facie established, the court would not be justified to reject the petition on the simple ground that it involves a determination of disputed questions of fact, because it is the duty of Supreme Court to enforce fundamental rights. 2. There is no reason why the above principle should not be applicable to a petition

under article 226, where it has been brought for the enforcement of a fundamental rights, for the duty of High Court to protect the fundamental rights cannot, in any way, be less than that of Supreme Court124. 3. But the Supreme Court has held in some cases that even where the infringement of

fundamental rights is alleged, the High Court would be justified in dismissing an application under article 226 in limine where the determination of the constitutional question depended upon the investigation of complicated questions of fact, on taking evidence.125

4.

Of course, the earlier doctrine that where fundamental rights are affected, it is duty

of Supreme Court to interfere has been seriously weakened by later decision, which have applied doctrines of laches even to applications under article 32.126 Nevertheless, a distinction must be made between considerations like laches or acquiescence which disentitle a litigation by his own conduct and the problem of investigating

123. Kochunni, K.K. v. State of Madras, AIR 1959 SC 725. 125. Bandhua Mukti Morcha v. UOI, AIR 1984 SC 802. 126. Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898.

facts which is founded on the courts reluctance, which should not be allowed to be made into a rule of thumb to dismiss a petition under article 32 or 226, even where there is a prima facie invasion of a fundamental rights. To do so would, as Hegde J., in his dissenting judgment in Trilok Chands Case127 observed, pull down from the high pedestal now occupied by the fundamental rights to the level of other civil rights, thus down grading the fundamental rights guaranteed under the constitution. Acquiescence Relief under articles 32 or 226 has also been refused on the ground of acquiescence. (i) In general, a person who submits to the jurisdiction of an inferior tribunal and takes

part in the proceedings without objection on the ground that the tribunal has no jurisdiction, cannot, after having failed in these proceedings, turn round and question the jurisdiction on that tribunal, in a petition under article 226.128

(ii)

A regards the constitutionality of statutes even, the view has been taken that though

an unconstitutional statute cannot be validated by estoppels or acquiescence, a person who has received a benefit under a statute is not entitled to challenge its constitutional validity.129 But where an order under a statute violates a persons fundamental rights, he cannot be said to have lost his right to challenge the constitutionality of the statute merely on the ground that he had applied for an order in his favour under that statute. 130 (iii) As to the effect of acquiescence in proceedings of prohibition or certiorari on the

ground of want of jurisdiction.

127. Ibid. 128.Maharashtra State Road Transport Corp.v.Balwant Regular Motor Services, AIR 1969 SC 329 129. Nain Sukh Das v. State of U.P., (1953) SCR 1184. 130. Rama Rao v. State of A.P., 1961 (2) SCR 931.

(iv)

The principle underlying the doctrine of acquiescence is that the omission on the part

of petitioner to assert his right, has caused prejudice to the adverse party. The appellant was selected to the post of lecturer but the Vice-chancellor disapproved the selection and directed the post to be re advertised. After re-adverstisment the appellant again applied for the same post and appeared before the selection committee the order of the V.C. disapproving her selection by any discretionary relief.131 (v) In another group of cases it has been held that where fundamental right has been

infringed, acquiescence, by itself, may not be ground for refusing relief, e.g., for challenging an unconstitutional tax which infringes article 19 (1) (g)132, or a law which infringes Art 30

(1)133. The principal is- There can be no loss of fundamental rights merely on the ground of non-exercise of it.134 (vi) When a public interest litigation has been entertained the individual conduct of the

writ petitioner would take a back seat. There can not be any doubt whatsoever that in a given case a party may waive his legal right. In an appropriate case, the doctrine of acquiescence or acceptance sub silentio may also be invoked, but the High Court, in the instant case, has gone into question with a wider perspective. The Supreme Court is not only required to construe the provisions of the statute but also to take into consideration the subsequent events which took place vis-a-vis the action on the part of the state after passing the interim order. The issue as regards the application acquiescence or wavier has become irrelevant. Against Whom Writ Lies Old View- Under article 32 as well 226 of constitutional writs or orders or directions lies 131. Sunita Aggarwal v. State of Hry., AIR 2000 SC 1058. 132. Amakgamated Coalfields v. Janpada Sabha, AIR 1961 SC 964. 133. Kerala Education Bill, in re, AIR 1958 SC 956. 134. Ashok Lanka v. Rishi Dixit, (2005) 5 SCC 598.

against any person or authority, including in appropriate cases any government. Under article 12 of the constitution, it is provided that in Part III of the constitution the expression State shall include the government and parliament of India and the legislative of each state and all other authorities within territory of India or under the control of the government of India. Apart from the state government and government of India, what are the other local or other authorities who are amendable to writ jurisdiction have been considerate in a large number of cases. The earlier view of the Supreme Court was explained in case of Sukhdev Singh v. Bhagatram135, in which the Supreme Court held that the expression other

authorities under article 12 is wide enough to include within it every authority created by the statue and functioning within the territory of India or under the control of government of India. In this case the question for consideration by the Supreme Court was whether an order of removal from service contrary to the regulations framed under the Oil and Natural Gas Commission Act, 1959, the Industrial Finance Corporation Act, 1948, Life Insurance of Corporation of India Act, 1956 enables the employees a declaration against the Statutory Corporation of Continuance in service or would only give rise to claim for damages. Prior to Sukhdevs case in the case of Rajasthan State Electricity Board, Jaipur v. Mohanlal,
136

the Supreme Court held that authority is a public administrative agency or

corporation having quasi-governmental powers and authorized to administer revenue producing public enterprise. It was the view of the Supreme Court in some other earlier decisions that the expression other authorities under article 12 will include all constitutional or statutory authorities who are created by law and on whom powers are conferred by law. Relying upon this old view it was held that a writ petition challenging the termination of service of an assisstant teacher of college impleading the committee of management, the president of the committee etc. was not maintainable as none of the 135. AIR 1975 SC 1331. 136. AIR 1967 SC 1857.

opposite parties was a public authority and the impugned orders were not made in exercise of its statutory functions. In Anandi Muktha Sadguri S.M.V.S.J.M.S. Trust v. V.R. Rudani ,
137

Supreme Court

for the first time held that the authority used under article 226 must receive a liberal meaning unlike the term in article 12 of the Constitution. Where rights are purely of a

private character, no mandamus can issue. If the management of college is purely a private character, no mandamus can issue. If management of college is purely a private body with no public duty, mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy mandamus can not be denied. The law relating to mandamus has made a spectacular advance. Article 226 confers wide powers on High Courts to issue writs in the nature of prerogative writs. This is striking departure from English law. Under article 226, writ can be issued to any person or authority. It can be issued for the enforcement of any of fundamental rights and for any other purpose. When does not lie Chandra Mohan Khanna v. NCERT,
138

it was held that article 12 should not be

stretched so as to bring in every autonomous body which has some nexus with the government within the sweep of the expression state. A wide enlargement of the meaning must be tempered by a wise limitation. It must not be lost right of that in the modern concept of welfare state, independent institution, corporation and agency are generally subject to state control. The state control does not render such bodies as state under article 12. The state control, however, vast and pervasive is not determinative. The financial contribution by state is also not conclusive. The combination of state-aid coupled with an unusual degree of control over the management and policies of body and rendering of an important public service being the 137. AIR 1989 SC 1607. 138. AIR 1992 SC 76.

obligatory functions of vital public importance, there may be little difficulty in identifying the body a state under article 12 as activities of NCERT comprising undertaking several

kinds of programmes and activities connected with the co-ordination of research extension services and training and dissemination of improved educational techniques collaboration in the educational programmes and preparation of and publication of books are not wholly related to government functions. No writ lies to non-statutory bodies exercising the non-governmental functions. Locus Standi In India, there is no law and /or any restriction has been put forth as to the persons who may file a writ application under article 226 and /or 32 of the Constitution of India. But it is well settled by several decisions of Supreme Court of India that the person aggrieved can file writ application. In other words, there must exist some subsisting legal and /or constitutional right which has been violated or infringed and in such a case a person can file writ application. So far as the article 32 is concerned, the same is available for breach of fundamental rights. But under article 226, the same is available not only for the violation of any fundamental rights but also for violations of any legal rights. In UK, Sec 31(3) of Supreme Court Rules, 1981 had laid down that unless the applicant has sufficient interest, no relief should be granted for filing an application for judicial review by the court. Accordingly, before granting leave the court must satisfy that the applicant has sufficient interest in the matter to which the application relates. This change in the law was brought about after Black Burn Series of cases. In England, Lord Denning in various statements liberalized and lowered the standing requirement in a series of cases, which is known as Black Burn Series of cases. In R. V. Commissioner of Police,139 a writ petition was entertained at the instance of Mr. Black Burn. In the former case, when the police authorities 139. (1973) Q.B. 241.

were not proceeding against the small gambling clubs in London under a policy division and in the latter case on the ground of failure of the police authority to enforce the law against pornography. In this case, it was held that the applicant has sufficient interest to be protected and /or right to see that the police did not act on the basis of mistaken policy decision, but the House of Lords took a different stand in Gourmet v. Union of Post office workers & others140 and held that it was fundamental principle of English Law that Public right can only be ascertained in civil action by Attorney General or officer representing public except where statute otherwise provide a private person could bring action to restrain against threatened breach of law if his claim was based on allegation as a threatened breach would constitute an infringement of the private right or would inflict special damage on him. The term Locus Standi, standing to sue denote the existence of right of an individual or group of individuals. The court always requires that a litigant have standing to challenge the action sought to be adjudicated in the proceedings. No aspect of administrative law has been changed more rapidly than the law governing a standing. The question of locus standi to present petitions under articles 32 and 226 has its importance because the Supreme Court and High Courts may not entertain such petitions filed by incompetent persons. Ordinarily writ application can be filed only by a person aggrieved and not by stranger except in public interest litigation and in case of writ of quo-warranto. Neither article 32 nor 226 of constitution has laid down as to who the persons are entitled to invoke this jurisdiction. In Chairman, Rly Board v. Chandrima Das
141

, the Supreme Court held that in a

public interest litigation filed by an advocate in respect of some personal injury caused to a lady who came from Bangladesh while she arrived at Howrah railway station with a view to catch a train for Ajmer who was taken by some of the employees of Railway to Yatri Niwas

and raped there by four employees. Such a public interest litigation was held to be maintainable and 140. (1977) 3 All ER 70. 141. AIR 2000 SC 988.

in this connection, the Supreme Court held that though initially a petition under article 226 of constitution relating to commercial matter was held not to lie, but the law has undergone a change by subsequent decision and even contractual matters are amendable to writ jurisdiction. The public law remedy has also been extended to a realm of tort and the court can award compensation to petitioners who suffer personal injury amounting to tortious act at the hands of the officers of government. It was held that rape is an offence which is violative of fundamental right of person guaranteed under article 21 of the constitution. The existence of legal right is the foundation for petition under article 226 and bare interest, may be of minimum nature, may give locus standi to a person to file a writ, but the concept of locus standi to a person to file a writ, but the concept of locus standi has undergone a sea change. There has been a spectacular expansion of the concept of locus Standi. The concept is much wider and it takes in its stride any one who is not very busy body. Public spirited citizens having faith in the rule of law are rendering great social and legal service by exposing cause of public nature. They cannot be ignored or overlooked on the technical or conservative yardstick of the rule of locus standi or in absence of personal loss or injury. When can court treat letter addressed to it as writ petition? The Supreme Court under article 32 and High Court under article 226 of constitution can treat a letter as a writ petition and take action upon it. It is not every letter which will be treated as a writ petition by the Supreme Court or High courts. It is only where a letter is addressed by an aggrieved person or by a public spirited individual or social action group for

enforcement of the constitutional or legal rights of a person in custody or of a class or group of persons who by reason of poverty, disability or socially or economically disadvantaged position find it difficult to approach the court for redress that Supreme Court or High Courts would be justified nay bound, to treat the letter as a writ petition. There may also be cases where even a letter addressed for redressal of a wrong done to an individual may be treated as a petition where the court considers it expedient to do so in the interest of justice. It is highly effective weapon in the armory of law for reaching social justice to the common man. Even if a letter addressed to an individual judge of the court it should be entertained provided it is by or on behalf of a person in custody or on behalf of a woman or a child or a class of deprived or disadvantaged persons. The Supreme Court in the case of Bandhua Mukti Morcha v. UOI
142

considered

danger inherent in a practice where the mere letter is entertained as a petition from a person whose antecedents and status are unknown or so uncertain that no sense of responsibility can without anything more be attributed to the communication. The practice of addressing letters to a particular learned judge was deprecated and it was held that this practice should be followed only in any exceptional cases and particularly in matters of general public interest. A public interest litigation may be initiated on the basis of a letter addressed to the court in appropriate case. On the basis of letter addressed by one Laxmikant Panday, an advocate complaining of malpractice indulged by social organization and voluntary agencies engaging in the work or offering Indian children in adoption to the foreign parents, the Supreme Court laid down a normative and procedural safeguard to be followed in this behalf for the welfare and interest of Indian child.

Compensation / Damages

It has been seen under article 32 that reversing its early view that no monetary relief can be granted in a writ proceeding, the court may, in an appropriate case, award compensation to the victim of infringement of fundamental rights.143 In public law, claim for compensation is a remedy available under articles 32 and 226 for the

142. AIR 1984 SC 802. 143. SAHELI v. Commr of Police, Delhi, (1990) 1 SCJ 300. enforcement and protection of fundamental and human rights.144 Public law remedy for the purpose of grant of compensation can be resorted to only when the fundamental right of a citizen under article 21 of constitution is violated and not otherwise. It is not very violation of the provisions of constitution or a statute which would enable the court to direct grant of compensation. The trial court awarded compensation to the victim of offence of rape and directed the same to be paid by the state and it was confirmed by High Court in an appeal against conviction. The accused by a special leave petition in which the state sought to challenge the award of compensation. The Supreme Court held that it was not open to the state to challenge the same in the appeal filed by the accused 145. In case of damages, it should be proportionate and with some statement respecting that in the order 146. Such a claim based on strict liability made by resorting to constitutional remedy, provided for the enforcement of fundamental rights is distinct from, and in addition to the remedy in private law for the damages for the torts. It is in fact an innovation of a new tool with courts which are the protectors of civil liberty of the citizen. However, it would not be correct to assume that every minor infraction of public duty by every public officer would command the court to grant compensation in a petition under article 226 and 32 by applying the principle of public law proceeding. Before exemplary damages can be awarded it must be shown that

some fundamental right under section 21 has been infringed by arbitrary or capricious action on the part of public functionaries and that the sufferer was helpless victim of that act.147 The same principles have been followed in cases under article 226. 148 In case of hand cuffing of an undertrial prisoner, the High Court awarded compensation for violation of article 21, and it was 144. Consumer Education & Research Centre v. UOI, AIR 1995 SC 922. 145. Dinesh v. State of Rajasthan, (2006) 3 SCC 771. 146. Bihar State Housing Board v. Ranjan Roy, (1997) 6 SCC 487. 147. Rabundra Nath v. University of Calcutta, (2002) 7 SCC 478. 148. State of Maharashtra v. Ravikant, (1991) 2 SCC 746. confirmed by the Supreme Court. Similarly, the Supreme Court has affirmed order for the payment of compensation, in a proceeding for mandamus by father whose child died by falling into a sewage tank which was left uncovered by negligent local authority.149 The mere fact that the claimants of compensation had suffered loss, owing to the electric transmission wires belonging to Grid Corporation having snapped and deceased coming in contact therewith and dying, is not sufficient for awarding compensation. The court is required to examine whether the loss was caused by the negligence of the defendants, i.e., the wire snapped due to their negligence. The defendants are to be given opportunity to prove that proper care and precautions were taken in maintaining the line and yet wires had snapped due to circumstances beyond their control or unauthorized intervention of the third parties. Such disputed questions of fact cannot be decided under article 226.150 An army officer was invalidated out of service on account of disability attributable to his military service. He had been knocking at the doors of the authorities for nearly three decades during his life time without grant of any relief and was unable to obtain direction

for re-examination by a Medical Board which was required to be done within one year of his being invalidated out of military service. Intimation for re-examination by Medical Board was sent after one year of his death. The single judge of the High Court directed for the payment of Rs. 3 lakh as compensation in favour of the widow of said officer besides the amount on account of disability pension and special family pension with interest @ 18%. The Division Bench set a side the order for compensation, holding that it was virtually penalizing the government. The Supreme Court declined to go into the question whether there was violation of fundamental right or not and set aside the order of the Division Bench and directed to pay the compensation

149. Kumari v. State of TN, AIR 1992 SC 2069. 150. A.K. Singh v. Uttrakhand Jan Morcha, (1999) 4 SCC 476.

within a period of 4 weeks.151 General Grounds for refusing relief under article 226 The exercise of the powers for other purpose (i.e.; purposes other than the enforcement of fundamental rights) is discretionary. Hence, in such cases, the application may be refused by the court upon a consideration of certain circumstances as disentitling the applicant to relief even though he may have a legal right which has been infringed, e.g., a) b) That there is an alternative remedy. That the conduct of the applicant is such that he does not deserve the discretionary

remedy, e.g., that he is guilty of laches or acquiescence or that he has not come with clean hands.

c)

That the applicant had waived his legal (not fundamental) right,

152

by his conduct in

circumstances similar to those required to constitute estoppel. d) That the applicant had misrepresented or suppressed the material facts in his

affidavit, thus misleading the court.153 e) f) That disputed facts have to be investigated in order to give relief to the petitioner. That the writ would be futile or ineffective or of a mere academic interest but not if

the impugned order or notification subsists by the virtue of legislation or where renewal of a yearly license is almost automatic.

151. Savitra Devi v. UOI, (2005) 10 SCC 325. 152. Krishan Lal v. State of J&K, 1995 (2) LLJ 718. 153. State of Hry. v. Karnal Distillary Co.Ltd., AIR 1977 SC 781. g) Where the petition has become infractuous by reason of subsequent orders which are

not challenged. h) That the petitioner had applied in revision before the High Court under section 115

of CPC and failed. i) Where the order of the court can not be carried out without prejudicing the rights of

others.154 j) The court can not direct any party to disobey a statute, even on the humanitarian

grounds.155 k) The court will not issue directions over the compliance of which it shall have no

control. l) The High Court should not interfere with the exercise of discretionary powers, in

absence of special circumstances.

m)

In general, the court can not enter into a political, as distinguished from legal issue,

e.g, whether a political power has been properly exercised. 156 n) In the exercise of its power of judicial review, the court can not interfere with

matters of governmental policy except on certain constitutional grounds, such as violation of fundamental rights, transgression of statutory powers. o) II a) The court can give advisory opinion under article 143, but not under article 226. As to applications under article 226 for enforcement of fundamental rightsAs to the applications under article 226 for enforcement of fundamental rights being

a duty of High Court, as that

154. Raman Lal v. Iron & Steel Controller, (1964) SC [WP89/63, dt. 24-7-1964]. 155. State of TN v. St. Joseph Teacher Training Institutute, (1991) 3 SCC 87. 156. Dinesh Chandra Pandey v. Charan Singh, AIR 1980 Del 114.

of the Supreme Court, where infringement of fundamental rights is alleged an application under article 226 cannot be refused on the mere ground that the application is not in proper form or that the applicant is guilty of laches or unreasonable delay or acquiescence. b) Later, the Supreme Court has come to hold that merely because fundamental rights

are involved, a court would not be debarred from applying the considerations in bar which apply to all extra ordinary remedies, i.e, laches or unreasonable delay. c) The doctrine of courts duty to enforce fundamental rights, regardless to

technicalities, has again revived in regard to Public Interest Litigation. There are five writs: a) b) Habeas Corpus Mandamus

c) d) e) a)

Certiorari Prohibition Quo-warranto Habeas Corpus- It is a writ to assert personal liberty. The full name of the writ is

habeas corpus adsubjiciendum. Habeas corpus means You may have the body. Habeas corpus adsubjiciendum means that you may the body to submit or answer. The shorter ened form of habeas corpus is usually used. This writ is prerogative process for securing the liberty of subject by affording an effective means of immediate release from unlawful detention whether in state prison or in private custody. By this writ, the court commands the production of the subject and inquires into the cause of detention. If there is no legal justification for the detention, the man is ordered to be released from custody. The writ of habeas corpus has been described as a writ of right which is grantable ex deditio justitiae. Though a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a cause and the return is not good and sufficient, he is entitled to this writ as of right.157 The nature of character of the person wrongfully detained is immaterial. The importance is on personal liberty. The vigilance with which it must be protected and the care which must be taken to see that a person is not deprived of his liberty except by due process of law. The remedy is not in any way less because the person whose liberty is in question is not meritorious and has not sympathy of court. In this connection, the following observations of Serution, L.J. in R.v. Secretary of State for Home Affairs , exp. OBrien is worth quoting, As Lord Herschell says in Cox v. Hakes, The law of this country has been very jealous of any infringement of personal liberty. This case is not to be exercised less vigilantly because the subject whose liberty in question may not be particularly meritorious. You really believe in freedom of speech, if you are willing to allow it to men whose

opinions seem to you wrong and dangerous, and subject is entitled only to be deprived of his liberty by due process of law, although that due process if taken, will probably send him to jail. A man undoubtedly guilty of murder must yet be released if due forms of law have not been followed in his conviction. It is quite possible, even probable, that the subject in this case, is guilty of high treason, he is still entitled only to be deprived, he is still entitled only to be deprived of his liberty by due process of law. The writ is applicable as a remedy in all cases of wrongful deprivation of personal liberty. The principle aim is to provide for a swift judicial review of alleged unlawful restraint on liberty. In this matter the court has the overriding power. As early as 1627, in Darnals Case- C J. Hyde asserted the power of the court with the following observations: whether the commitment by the King or others, this court is a place where the King doth sit in person, and we have power to examine it and if it appears that any man hath injury or wrong by 157. UOI v. Chhaya Ghoshal, (2005) 10 SCC 97.

his imprisonment, we have power to deliver and discharge him; if otherwise, he is to be remanded by us to prison. We can conclude with the words of Blackstone that it is directed to the person detaining another and commanding him to produce the body of prisoner with the day and cause of its action and although it has been said that in habeas corpus proceedings, the court will review the detention order only to see that it is made within jurisdiction. At one time, the prisoner would have to obtain certiorari to quash the detention order, at the same time as habeas corpus to secure release, in order to succeed on this ground. The writ of habeas corpus plays a definite part in administrative law. It is a remedy for control of power since some authorities have powers of detention and they are apt to

misuse or abuse the same. A writ of habeas corpus challenges the legality of detention and in that way challenges the validity of administrative order. In general the courts protect personal liberty zealously and effectively by habeas corpus. The writ may be applied for by any prisoner, or by any one on his behalf. It may be directed against the goaler often the appropriate prison governor or against any authority ordering the detention. It is not discretionary. Habeas corpus is used as an instrument of judicial review of administrative acts. The procedure is governed by special rules of court. Habeas corpus can not be used as a means of appeal, but only of review. Accordingly, habeas corpus will be granted if it can be shown that the order of detention is ultra vires on any of the normal grounds, such as a wrong finding of jurisdictional facts; the order is vitiated by the error on the face of the record or if it is supported by no evidence. Review by means of habeas corpus is naturally available only where the tribunal which made the order of detention is subject to review by the High Court. Who may apply- It has been stated earlier that habeas corpus is an exception to the general rule that a petition for a writ can be made only by a person whose rights have been infringed by the impugned order. An application for habeas corpus may thus be made even by stranger, a social worker. But where the affidavit of stranger does not indicate why affidavit from prisoner himself could not be filed, application would not be entertained. Object of the writ in USA - The object of this writ is a speedy release, by judicial order of the persons who are illegally restrained of their liberty. It also lies where a party is held by some person when another is entitled to custody, in which the court is empowered to deliver him from unlawful imprisonment by committing him to the custody of the person who is by

law entitled thereof. The transfer of custody is applicable in case of infants and insane persons. The purpose of the writ is not to punish for wrongful acts of restraining the detenue or to afford him redress for his illegal detention. Nature and Scope of the writ- It is a high prerogative writs for the enforcement of the civil right of personal liberty. It is high mandate, by means of which or judges in protection of the liberty of individuals, exercise function appertaining to the sovereign power, and which is intendment of law rest only in the sovereign power, and which is intendment of law rest only in the sovereign and co-extensive with the dominion. It is highly privileged writ and has long been justly esteemed the great bulwark of personal liberty. Object and importance in IndiaHabeas corpus is a writ in nature of an order calling upon the person who has detained to produce the latter before the court, in order to let the court know on what grounds he has been confined and to set him free if there is no legal justification of imprisonment. Its object was not the punishment of the wrong doer but to secure release of prisoner without which he may not be in a position to pursue his legal remedies against the wrong-doer. It is procedural writ and its proceeding is summary. Article 21 of the constitution declared that no person shall be deprived of life and liberty except in accordance with procedure established by law. The writ of habeas corpus provides a prompt and effective remedy against illegal restraints. The principal aim is to provide for a swift judicial review of alleged unlawful restraint on liberty. In Halsburys laws of England (4 th edn.), it is stated in any matter involving the liberty of the subject the action of Crown or its ministers or officials is subject to the supervision and control of judges on habeas corpus. The judges owe a duty to safeguard the liberty of subject not only to subjects of the Crown and entitled to resort to the court to secure any rights which they may have, and this whether they are alien friends or alien

enemies. It is this fact which makes the prerogative writ of highest constitutional importance, it being a remedy available to the lowliest subject against the most powerful. The writ has frequently been used to test the validity of acts of the executive and, to test the legality of detention under emergency legislation. The primary object of the writ is immediate determination of the right of applicants freedom-that was its substance and its end. The writ has been described as a writ of right which is allowed ex debito justified. Though a writ of right which is not writ of course, the applicant must show a prima facie case, and the return is not good and sufficient, he is entitled to this writ as of right. Thus writ can also be issued in case of counterfeit release. It can be applied when there is pretended ignorance of the place of custody or identity of custodian. Lord Waston observes: The remedy of habeas corpus is, in my opinion, intended to facilitate the release of persons actually detained in unlawful custody; and was not meant to afford the means of inflicting penalties upon those persons by whom they were at some time or other illegally detained. Accordingly the writ invariably sets forth that the individually whose release is sought whether adult or infant, is taken and detained in custody of the person to whom it is addressed and rightly so, because it is the fact of detention and nothing else which gives the court its jurisdiction. The object of the writ is not to punish previous illegality but to release from present illegal detention. It can not be used for punishing the respondent or for affording reparation or redress to the person wronged.

Awarding compensation in writ proceeding In so expanding its writ jurisdiction, the Indian Supreme Court has moulded the prerogative writs to such an extent as could never have been dreamt of by the judges in

England under the common law. Thus, in a proceeding under article 32 of the Indian Constitution, for the enforcement of human rights, the Supreme Court has(a) awarded compensation to the person aggrieved by the infringement of the

fundamental right complained of.158 and that even in a public interest litigation; 159 (b) in what might at best; be labeled as a suggestion or observation, issued a direction

or command to the government, thus making a judicial encroachment upon the function of administration for which the government is responsible to the Legislature, e.g.,(i) (ii) To create a Special Dowry Cell to investigate into dowry death.160 To submit a scheme for construction of house for government servants who were

sought to displaced as a result of the government policy to de-requisition requisitioned premises.161 (iii) To direct the State government to raise the daily diet allocation, to supply adequate

drinking water, mattresses and blankets, medical service etc. to patients in the government mental hospital.162

Scope
In order to ascertain the scope of this writ it is necessary to find out the nature of the 158. Rudal v. State of Bihar, AIR 1983 SC 1086. 159. Mehta v. Union of India, AIR 1987 SC 1986 (para. 7). 160. Joint Womens Programme v. State of Rajasthan, AIR 1987 Sc 2960 (para. 2). 161. Assocn. of Allotters v. State of Maharashtra, (1986) Supp. SCC 567. 162. Rakesh v. State of Bihar, (1986) Supp. SCC 576. review available on habeas corpus application. In some cases, the determination of question of fact will be a matter in public body, especially only to the supervisory jurisdiction of the High Court and the Supreme Court. The court will only ensure that there is sufficient evidence on which a reasonable court or public body could properly reach the decision that

it has reached. There are cases, however, where the exercise of particular fact is a necessary precondition to the exercise of a statutory power; these are referred to as jurisdictional fact. It is for the court to determine whether such jurisdictional fact exists. On a habeas corpus application, the court will act as a supervisory body. They will not interfere with a discretion properly exercised. The scope of this writ has been widened by the interpretation of article 21 of the constitution. There are two aspect of this article. In Maneka Gandhi v. UOI,163 it was held that the procedure contemplated under article 21 of the constitution should be just, fair and reasonable. Without the above vertum the procedure will suffer from putrefaction and destroy the action. The second part deals with life. The interpretation of the word life has undergone revolutionary change. The word life now conveys the idea of dignified life and not merely of animal existence. There are instances where people are kept in the jail without any reasonable ground for longtime. In Sant Bir v. State of Haryana.
164

the petitioner was sentenced to life

imprisonment on the 28th Feb,1949. Since the mental condition of the petitioner was not stable, on the 20th Nov., 1951, the petitioner was transferred to another jail for confinement as criminal lunatic. The medical history and report indicates that the petitioner was fully recovered and was fit for discharge. The jail superintendent sent the reports to state government for petitioner, directed the jail superintendent for necessary orders. The state government instead of release of petitioner, directed the jail superintendent to keep the petitioner for safe custody, as a criminal lunatic. The Supreme Court observed why the state government instead of releasing the petitioner on surety when he was completely recovered, kept him in the jail. There was nobody to stand surety and the petitioner had to spend 10 years more in jail. The petitioner was kept in the jail without any authority of law. The

Supreme Court directed that the petitioner should be released from the jail and set at liberty forthwith. Veena Sethi v. State of Bihar165, in this case, some prisoners were detained in prison for period from 20 to 37 years. They were arrested in connected with certain offences and were declared insane at the time of their trial and were put in the central jail with directions to submit half-yearly medical reports. Some were convicted, some acquitted and trials were pending against some of them, while they were declared sane, no action for their release was taken by the authority for years to come. The prisoners remained in jail for no fault of theirs. Even if they were proved guilty, the period they had undergone would exceed the maximum imprisonment than they might be awarded, hence they should be released forthwith. In Sheela Barse v. UOI,
166

the Supreme Court intervened for the cruelty to non-

criminal lunatics. The Assam government was indicted for callous attitude towards noncriminal lunatics and state government was directed to examine and communicate the acceptance of the proposals for rehabilitation. In this case, the court initiated suo moto proceedings of criminal contempt against the Chief Secy. and I.G. Prisons, Assam. In Arvinda Singh Bagga v. State of U.P. 167, The Supreme Court directed the District Judge, Bareilly to inquire into the allegations of illegal arrests, and torture by the police of petitioners brother and his family. The brother had married a girl against wishes of her family and hence earned their wrath. On the basis of District Judges report, which indicted the police highhandedness and torture, the Supreme Court expressed strong displeasure and disapproval of

163.AIR 1983 SC 339. 164. (1994) 4 Scale 493. 165. AIR 1995 SC 117.

the conduct of police official and directed their prosecution and payment of compensation to the victims who were illegally detained and tortured. Place of detention and torture In Prem Sankar Shukla v. Delhi Admn.166, habeas corpus is spread out beyond the orbit of release from illegal custody into every trauma and torture of persons in legal custody. If cruelty is contrary to law, it degrades human dignity or defiles his personhood to a degree that violates article 21, 14 and 19 of the constitution enlivened by the preamble. Access to justice and personal liberty is the essence of habeas corpus. A Division Bench of the High Court held that as the detention order was made even before the writ petition was filed, the prayer in the writ petition has become in fructuous and there was no extra ordinary or special reason to depart from the normal rule, namely, in such a case the appellant should first surrender and move for a writ of habeas corpus. Accordingly, the High Court dismissed the writ petition. Allowing the appeal, it was held that if the overt act towards violations have already been done and the same have come to the knowledge of the person threatened with the violation and approaches the court under article 226 giving sufficient particulars of proximate action as would imminently lead to violation of right, the court should call upon those alleged to have steps to appear and to show cause why they should not be restrained from violating that right. Scope of Order1. The only object of writ of habeas corpus is to release a person from illegal detention. It can not be used either to punish the respondent or to afford reparation to the person wronged. 2. But even in a proceeding for habeas corpus, the court is competent to mould the relief as to meet the requirements of particular case, or issue appropriate directions.

166. AIR 1980 SC 1535. Courts power to award compensationThe Supreme Court has improved upon the common law relating to habeas corpus proceedings by lying down that where it is shown that the petitioner was arrested and imprisoned with mischievous and malicious intent, the court shall have the power to compensate the petitioner by awarding suitable monetary compensation or exemplary costs. Appeal from orders for habeas corpus Under the constitution of India, an appeal will lie against an order whether allowing or refusing the application for habeas corpus, as followsa) If the case involves a constitutional question, there will lie an appeal to Supreme

Court, upon a certificate of High Court to that effect under article 132 (1) of constitution. b) Even where there is no constitutional question involved, appeal would lie under

article 134 (1) (c), upon the certificate of High Court. But the certificate can not be granted as a matter of course to imperil the liberty of a subject who was obtained an order of release from High Court. This can be done if there is a substantial question of law of paramount public importance involved in the case. c) If the proceeding is treated as of civil nature, appeal will similarly lie under article

133 (1) (c). d) The Supreme Court may grant special leave under article 136, to appeal from orders

either refusing or allowing application for habeas corpus. Practice and Procedure 1. Rule nisi in a habeas corpus proceeding demands immediate attention or urgent

compliance as it concerns the question of liberty of individuals. 2. The warrant of commitment issued by a court for the custody of a person in jail

should normally remain with the jail authorities directed to keep the person committed to

their custody so that they can always satisfy the High Court inquiring into the legality of such custody. 3. The jail authority has no discretion to withhold any petition for habeas corpus

received from prisoner. He should at once send it to the court to which it is addressed, whether or not it is accompanied by the certificate as the leave to appeal. 4. Even if there is no rule, it would be meet and proper for every High Court to dispose

of habeas corpus petition as expeditiously as possible. Refusal to give effect to order of habeas corpus1. To decline to give effect to an order of release passed on an application for habeas

corpus amounts to contempt of court, punishable by attachment and imprisonment. 2. Not only has the refusal to give effect to an order of release, but any willful

interference with the exercise of powers of High Court under its habeas corpus jurisdiction amounts to contempt. Thus, where, an application by a detenue to High Court in respect of the withdrawal of certain privileges by the government is withheld, the officer responsible for the impediment or unreasonable delay, must be liable for contempt. 3. Any attempt to circumvent the order by resorting to fraudulent proceedings, would

constitute contempt. But if authority, after the order of release, detains the prisoner by issuing an order of detention under Preventive Detention Act, giving additional grounds, he cannot be held liable for contempt in the absence of a finding that order of detention was malafide. 4. It is a valid defense to a proceeding for contempt for refusal to comply with a writ of

habeas corpus that it is impossible to obey the order, but not where the persons conduct is contumacious, e.g., where the parent snatches away a child from the custody of the mother to whom a court has given such custody.167 167. Capt. Dushyant Somal v. Sushama Somal, (1981) 2 SCC 277.

Foreigner 1. A foreigner, not being a citizen, is not entitled to any of rights under article

19 or to remain in the territory of India. Though he may be entitled to the rights under article 22 (1) & (2), those provisions cannot be invoked when a foreigner is arrested not on the charge of commission of any offence, of criminal or quasi-criminal nature but for the purpose of expelling him from India in accordance with law, where his entry or continuance was illegal. 2. When an order of detention is revoked during the tendency of habeas corpus

proceeding, ordinarily the court should order his release forthwith, except in the case of a foreigner who is liable to be deported or expelled from India, in which case, he may be directed to be kept in custody for the purpose of making arrangements for its expulsion.168 Infant, Custody of Prior to the constitution, there was a controversy as to whether the remedy under section 491, Cr PC was barred by statutory remedy under the Guardians and Wards Act. But now that the right to habeas corpus is secured by the constitution and writ of habeas corpus is a writ of right, the writ cannot be denied simply on the ground that the petitioner has an alternative remedy. The writ should issue whenever the release of the minor from detention is necessary for protection of his health, safety or morals. But it would not issue at the instance of a person whose claim to be appointed guardian for minor has been rejected by an order of competent court which has become final. But no person whether major or minor, can be kept in protective custody even under the order of court, unless such custody or detention is authorized by law. On the other hand, the primary consideration for the court in a writ petition for custody of minor is not the legal right or that party, but the welfare of minor. In case of detention of child or minor, the English principles have been followed to hold that-

168. Anwar v. State of J&K, (1971) 3 SCC 104. a) The only person who is competent to move the court in habeas corpus is one who is

entitled to the custody of child or to represent the child legally. b) If such a person is shown to be incapable of making or unable to make, the

application, or where no such person exists, a friend of the child is entitled to make an application, provided he satisfies the court by affidavit as to the aforesaid circumstances and also that he himself is interested in the welfare of the child. In no circumstances would the court issue the writ at the instance of a person whose interest is adverse to that of the minor.169 Arrest of Member of Parliament Habeas Corpus lies to obtain the release of Member of Parliament who has been arrested in breach of privilege not to be arrested which extends only to arrest under civil process.170 Prisoner On the petition for habeas corpus, the prisoner may obtain suitable directions from court where he is accorded cruel treatment in violation of his human dignity; his sentence of imprisonment is exceeded by requiring him to do harsh labour regardless of his age or sex or to do undignified job where the safe custody is otherwise impossible or prisoner is dangerous or is subjected to inhuman torture.171 If the prison whether under-trial or convict, put under iron fetters or handcuffs except where it is imperative for preventing him from escape, may bring a petition under article 226 or 32 to obtain a direction from the court that the fetters or handcuffs be dropped and also a

169. Ikram Hussain v. State of U.P., (1964) 5 SCR 86. 170. Ansumali v. State of W.B.,

171. Sunil Batra v. Delhi Admn. II, AIR 1980 SC 1579.

declaration that any law which provides otherwise is unconstitutional for contravention under article 21. Detention by Private Person Since fundamental right is leveled against state action and not against the acts of private individuals, neither article 21 nor article 32 is attracted where a person has been unlawfully detained by a private individual. But since article 226 is available not only for enforcement of fundamental right but also for other purposes, a High Court is competent to issue habeas corpus against detention by private individual in like cases as in England.172 Custody of Wife Habeas corpus is available to a husband to regain the custody of his wife, buta) It would not ordinarily issue where issues of fact have to be established, there being

no alternative remedies by civil suit or by proceeding under section 100 of Cr PC where issues of fact can be tried but the High Court has the power to make inquiry into facts in a proceeding for habeas corpus. b) It would not issue unless the petitioner satisfies the court, at least prima facie, that

person claiming the writ is husband and that a valid marriage between him and woman could have taken place. c) The writ would not issue where the petitioner is himself charged with criminal

offence in respect of the very woman for those custody he demands the writ or woman being a major, gives her consent to such detention.173

A person filed application under article 226 alleging that his wife was wrongly confined by her parents and sought directions for her production in court and handing her over to him. As it was 172. Cf Gohar Begum v. Suggi, AIR 1960 SC 93. 173. Idrish Mohd. v. Meman, 2000 SCC (Cri) 99.

not established that she was a major and was not willing to go to her parents, the High Court directed that she be kept in nari niketan till further orders. On the basis of documents filed in appeal, the Supreme Court found that by then she had attained majority and directed nari niketan that she be released forthwith. Mandamus A writ of mandamus may be defined as a command issuing from the High court or Supreme Court, directed against the state or authority mentioned in article 32 as well as under article 226 of the constitution requiring the performance of particular duty therein specified which duty results from the official duty or by operation of law. In other words, prerogative writ of mandamus is imposed for securing judicial enforcement of public duties, performance of which has been wrongfully refused. The writ of mandamus is of a most extensive remedial nature. Mandamus is a public law remedy and will not be available in respect of duties of private nature. In case of Sri Anadi Mukhta Sadguru Sri Mukhtajee Vandajisami v. V. R. Rudani , held that if the rights are of purely of private character, no mandamus can issue, if the authority is purely a private body with no public duty, mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, then mandamus cannot be denied. The law relating to mandamus has made the most spectacular advance. Article 226 conferred wide powers on the High courts to issue writ in the nature of prerogative writs. This is a striking departure

from English law. If positive obligation exists mandamus cannot be denied on the ground that duty to be enforced is not imposed by statute. The judicial control over the fast expanding maze of bodies affecting rights of people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances, mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under article 32 or 226 of the constitution. The object of mandamus is to prevent disorder from failure of justice and it should be granted in all cases where law has established no specific remedy and where injustice there should be one. The writ of mandamus is regarded as one of the highest remedies in Indian judicial system. It is issued only where there is clear and specific legal right to be enforced or a duty which ought to be and can be performed. The writs sought to be granted must also be effectual as a remedy and it must be within the power of the respondents as well as be his duty to do the act in question. As it is an extra ordinary relief, the court may in the exercise of wise judicial discretion, still refuse the relief even in cases where applicants for relief have undoubted legal rights for which mandamus is the appropriate remedy. As a object a mandamus is not to supersede the legal remedies, but rather to supply the want of them, two pre-conditions must exist, before granting remedies by way of mandamus, first, it must be shown that the applicant has a clear legal right to the performance of particular act or duty at the hands of respondents and second, it must appear that the law affords no other adequate or specific remedy to secure the enforcement of the right and the performance of the duty which it is sought to enforce. This jurisdiction cannot be exercised for the purpose of determining merely fanciful questions in which the applicant has no personal or pecuniary interest or for deciding purely academic questions. Ordinarily, mandamus is not granted in anticipation of a supposed omission of duty. As regards the necessity of previous demand and refusal to perform the act which is sought to be enforced

by mandamus, the authorities are not altogether reconcilable, mandamus never lies when the writ would prove inoperative. This writ is not to create duties but require the performance of duties already existing. It confers no new authority. It never commands the performance of an act which was unauthorized in the absence of a writ but only to do that which it is the duty of the respondents to do without the command of writ. It is issued to stimulate, not to restrain the official function. Lord Denning M.R. said mandamus is a very wide remedy which has always been available against the public officers to see that they do perform their public duty. The legal status of the commissioner of police, is still that he is a justice of peace as well as a constable. No doubt the party who applied mandamus must show he has sufficient interest to be protected and that there is no other equally convenient remedy; but once that is shown, the remedy of mandamus is available in case of need, even against the Commissioner of Police of Metropolies. No doubt any person who was adversely affected by the action would have such interest. But the most important principle to be observed in exercise of the jurisdiction by mandamus and which lies at the very foundation of the entire system of rules and principles regulating the use of this extraordinary remedy is that which fixes the distinction between the duties of mandatory nature and those which are discretionary in character, involving the exercise of some degree of judgment on the part of officer or body against whom mandamus is sought. Generally, mandamus will lie to compel performance of duties purely ministerial in their nature and so clear and specific that no element of discretion is left in their performance but mandamus will not lie to all acts or duties necessarily calling for exercise of judgment and discretion on the part of officers or body at whose hands their performance is required. The writ of mandamus is in exercise of an original and not of appellate jurisdiction, the writ itself being an original process.

A school building was sold to someone and school shifted from one place to another and possession delivered to the purchaser without obtaining permission of the competent authority as required under rules, and the possession, thus, given was to contravention of the rules. The respondents belonging to the locality where the school was running filed writ application before the High Court seeking mandamus to the appropriate authority that the school must run in building in question until shifting is made in accordance with law. The respondents being action groups and persons of locality were held to have rights to seek mandamus and High Court was justified in issuing a direction until not justified in deciding the question of title and legality of sale deeds by which the building was sold. It is not necessary for the High Court to go into the question of title when the same has not been challenged by any competent person.174 Nature and Object of Mandamus Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the Kings Bench directing performance of public legal duty.175 Mandamus is a command issued him or them to do some particular thing there in specified which appertains to his their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies and it would lie to any person who is under a duty imposed by constitution a statute, common law or by rules or orders having the force of law. A writ of mandamus is required to be obeyed unless a judgment is overruled or legislation by way of a validating statute is brought into force. A writ of mandamus or remedy under article 226 is pre-eminently a public law remedies and it is available against a body or person duty that article 226 of constitution can be invoked. It may be used to do justice when there is wrongful exercise of power or refusal to perform duties. This writ is admirably equipped to serve as a judicial control over the

administrative actions. This writ can also be issued against any private body or person, especially in view of the words used in article 226 of constitution. The scope of mandamus is determined by the nature of duty to be enforced, rather than the identity of authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public body may be either statutory or otherwise and source of such power is 174. Action Group Res. In Enurn & Edu. Development Society v. Sakki Bai, (1998) 9 SCC 685. 175. UOI v. S.B. Vohra, (2004) 2 SCC 150. immaterial, but nevertheless, there must be the public law element in such action. The statutory duty imposed on the public authorities may not be of discretionary character. Manufacture and sale of cigarettes by a company does not involve any public function and if incidental to this activity, it is statutorily obliged to maintain a canteen for its workman, it means, the same is a condition of service in relation to its workmen and will not amount to public duty. Hence, mandamus will not issue against such a company in connection with violation of such obligations.176 There must be some statutory backing for issue of mandamus. In the instant case, the High Court had issued mandamus for taking over of the management of an unaided private college without any statutory provision therefore. A writ of mandamus is issued in favour of a person who establishes a legal right in himself. It is issued against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. It is the writ of a most extensive remedial nature. 177

The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and where justice despite demanded has not been granted. Conditions Precedent to the issue of Mandamus In order to obtain a writ or order in the nature of mandamus, the applicant must satisfy the following conditions: 178 (i) The applicant must show that he has a legal right to performance of a legal duty, by

176. VST Industries Ltd. v. AST Industries Workers Union, (2001) 1 SCC 298. 177. UOI v. S.B. Vohra, (2004) 2 SCC 150. 178. Mani Subrat Jain v. State of Haryana, AIR 1977 SC 276.

the party against whom the mandamus is sought, and such right must be subsisting on the date of petition. (ii) The duty that may be enjoined by mandamus may be one imposed by constitution, a

statute, common law or by rules or order having force of law. The better view, however, appears to be that a contract which contravenes article 299, which is mandatory can not be enforced by the application of the doctrine of promissory estoppel.179 At the same time, the court should not overlook thatthere cannot be any question of estoppel against the state, in the exercise of its sovereign powers unlike the case of a private individual or corporation. But(i) Mandamus does not lie to enforce departmental manuals or instruction not having

any statutory force or a non-statutory scheme or concession, which does not give rise to any legal right in favour of the petitioner. The court can not issue mandamus to government for enforcing the cabinet decision.

But an administrative order may be enforced when it confers rights or creates an estoppel against the government. Mandamus may also issue to cancel an administrative order which may the rules of fair play. (ii) (iii) mandamus to exercise a power which is legislative in character, cannot issued.180 mandamus cannot be issued to control an authority to exercise a power which has

substantial element of discretion. (iv) For the same reason, the court can not interfere by mandamus to enforce extra-legal

sanctions e.g., to nullify the sentence of court on religious or moral consideration. 179. Bihar Eastern Genetic Fisherman Co-op Society Ltd. v. Sipahi Singh, AIR 1977 SC 2149. 180. State of Karnataka v. State of A.P., (2000) 9 SCC 572. (v) The writ of mandamus is only granted to compel performance of duties of public

nature or to enforce private rights when duties of a public nature affect private rights or when the private rights are withheld by or in collusion with public officers. (vi) Mandamus does not issue against a private individual, unless he was acting in

collusion with public authority. On the other hand, even though a statute provides for the setting up of a committee of management for a private institution, it would not be amenable to mandamus unless such committee or other body is to discharge statutory functions or to exercise statutory powers. (vii) Mandamus or any other writ under article 226 would not issue against a company

registered under the Companies Act, even though it may be a government company or against a statutory corporation, unless it is vested with statutory duties. In such case, the court cannot issue a declaration in lieu of mandamus. (viii) Mandamus would not issue to direct a government to refrain from enforcing the

provisions of a valid law or to violate or to act in violation of the law.

(ix)

Mandamus would not issue to bring party in pay scales or to pay particular scale.

On the other handa) anybody who is likely to be affected by the order of public officer is entitled to bring

an application for mandamus if the officer acts in contravention of his statutory duty. b) even though the order of the government or its officer is likely to be eventually held

ultra vires, the person against whom it is issued can refuse to comply with it only at his peril. (x) The application must be made by the aggrieved party. The writ will never be granted In a case which went up to the Supreme Court an appeal, the condition of demand and refusal was not insisted upon on the ground that fundamental right has been infringed. (xi) As a general rule, mandamus is not issued in anticipation of injury.

But there are exceptions to the above rules: a) anybody who is likely to be affected by the order of public officer is entitled to bring

an application for mandamus if the officer acts in contravention of his statutory duty. b) a person against whom an illegal or unconstitutional is made is entitled apply to the

court for redress even before it is actually enforced against him or he does something to his detriment in pursuance of the order for issue of such order constitutes an immediate encroachment on his rights and he can refuse to comply with it only at his peril. (xii) mandamus will issue in case of discrimination between two persons similarly situated thus resulting in violating of article 14 of constitution. Grounds on which mandamus may be refused Even though the foregoing conditions are satisfied relief by way of mandamus which is discretionary and not of right, may be refused on any of following grounds: (i) Where the act against which mandamus is sought has been completed and the writ, if

issued, will be in fructuous.

But even where the court would not grant one relief on the ground that it would be short-lived, there is no bar to grant of some other relief in the same proceeding. (ii) Where the application is premature, for instance, where no action contrary to law has

yet been taken or proposed. Mandamus will not go when it appears that it would be futile in its results. (iii) When there is no legal or constitutional obligation which is capable of being

enforced by mandamus, e.g.a) to remove any minister who holds his office at the pleasure of President or the

Governor as the case may be. b) to direct any minister to resign, in absence of any statutory or constitutional

provision. c) to direct the President or the Governor to dismiss a government servant, who holds

office at the pleasure of the executive subject to article 311. d) the writ being discretionary, it may be refused on equitable grounds, such as

suppression or misstatement of material facts in the application. e) It may be refused on the ground of laches, or unexplained delay, even where

fundamental rights are affected, but not where there is proper explanation for delay, e.g., the pendency of a review or appeal before an administrative superior or where such refusal would be discretionary or unjust to the petitioner. f) Mandamus is not an appropriate proceeding to decide question of title to property or

complicated question of fact. g) Mandamus can not issue against a public servant to enforce a contract, independently

of any statutory duty or obligation to the applicant. h) Mandamus will not issue to compel to person to institute legal proceeding, even in

case of contravention of statute.

i)

A wrong decision in favour of any party does not entitle any other party to claim the

benefit on the basis of that wrong order. j) k) It will not issue where there is equally effective and convenient alternative remedy. Mandamus will not issue to interfere in the realm of political power, e.g., to abrogate

or extend article 370 of the constitution. Against whom mandamus will not issuei. ii. the President or Governor of state. the High Court itself or any judge, acting in a judicial capacity, as distinguished from

administrative capacity. Thus mandamus will not be issuedagainst the chief justice of High Court in the matter of assigning cases to puisne judges, in absence of some clear breach of rules governing the matter. On the other hand, mandamus may lie against Chief Justice of India or High Court. a) In the matter of determination of age of High Court judge, on the ground of

contravention of provisions of constitution e.g., article 217 (3). b) In the matter of transfer of judge or termination of services Additional Judge on the

ground of violation of the relevant provisions of constitution or malafides. Effect of refusal to comply with a writ or order in the nature of mandamus 1. An intentional refusal to do the act the time when it is required to be done by a writ

of mandamus constitutes contempt of courts. 2. In order to punish a person for contempt of court, it must be established not merely

that the order has been violated but also such violation has been willful. 3. A proceeding in contempt is of criminal nature, and the guilt of person charged must

be strictly established, both substantively or procedurally.

4.

When mandamus is issued to particular authority, no other authority has jurisdiction

to consider the matter in violation of direction of High Court. Not a Remedy to settle the title Mandamus is a proper remedy to prevent further illegal inclusion from office in a private corporation when the right is clear, although under such circumstance there be an incumbent. The same principles applicable to public officers in such cases are generally applicable here. While it is true that mandamus is not proper remedy to try title, no such question is presented in case of unlawful removal. The only matter for determination is the legality of ouster. It the ouster is invalid, the officer never has, in legal contemplation, been removed at all, and mandamus lies. In order that the removal may be legal, there must be an inquiry and judicial determination of acts charge, all in accordance with constitution and by- laws. It is well settled that the legal right or title to an office can not be tried by mandamus.181 Right of Public officer It may be stated as the accepted rule that where the duty to pay salary of public officer is by made plain and clear and the liability fixed, and where the claim is just and undisputed and there such ministerial duty or action.182 A decision not to pay wages due under a contract of employment would constitute both a breach of contract and also be so unreasonable in public law sense that judicial review would be available to correct the error.183 Some illustrative cases where mandamus lies Mandamus lies to secure the performance of public duty, in the performance of which applicant for writ must have legal right or sufficient legal interest. Mandamus is an extraordinary legal remedy. Mandamus may not be used to perform the function of appeal or to correct a mere mistake or error. Mandamus is subject to the exercise of a sound judicial

discretion. It is an appropriate remedy to enforce a plain, positive, specific and ministerial duty, presently existing and imposed upon the authority, who refuse or neglect to perform such duty, when there is no other adequate, specific and speedy remedy and without which there would be a failure of justice. The main function of this writ is to compel the performance of public duties imposed on such authority and to keep them within their jurisdictions. The scope of articles 32 and 226 is wider and broader in India than the American and English courts, because of the languages used in those articles. In India, the use of 181. Peterson v. Morse, 192 Pac. (Cal) 51. 182. State ex rel clark v. Jack, 126 Minn. 367, 148 N.W. 306. 183. R.V. Liverpool City Council, ex. P. Eerguson & Ferguson, (1985) 1 RLR 501. expression directions, orders or writs, including writs in nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari enlarged the scope of powers of Supreme Court and High Courts. In these two articles, it has been made crystal clear, that it is not confined only to prerogative remedy. The Supreme Court and High Courts have been conferred powers to issue any directions, orders not confined only to prerogative writs but it is enlarged by the use of words in the nature of. This view has been highlighted by the Supreme Court in Basappa v. T. Nagappa184. Supreme Court further observed that, we no longer need the crutches of foreign legal orders. Errors committed by paper setter in key answer in pre-medical tests for admission to medical college, students answering correctly but not in accordance with the key answer, the students could not be declared failed and they were entitled to admission on revaluation of their papers.185 Denial of admission in sports quota which were reserved for outstanding sportsmen, having requisite sports certificate held illegal.186

The qualifying condition that a candidate appearing for the Entrance Examination for admission into medical college in Delhi should have received last 2 years of education in a school in Delhi is held to unreasonable when the parents had to leave Delhi on transfer.187 Allocation of 33 1/3 % of total marks for viva-voce for selection of candidates was held to be arbitrary and unreasonable.188 Once a candidate is allowed to take examination, then University loses its power to withdraw the candidature because of the infirmities in the admission form to appear at the 184. AIR 1954 SC 440. 185. Kanpur University. V. Samir Gupta, AIR 1983 SC 1230. 186. State of Punjab v. Bhagwant Singh, AIR 1985 SC 981. 187. Minakshi Mills v. UOI, AIR 1989 SC 1568. 188. Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487. examination. On the principle of acquiescence; a candidate in part II law examination on the basis of some undertaking to produce certain permission from the employer, failing which he agreed to accept any action taken by University in his anxiety to appear at the examination, the admission made in ignorance of legal right and in terrorem cannot bind the maker of the admission.189 The High Courts and Supreme Court exercise supervisory jurisdiction over persons who are charged with performance of public acts and duties. This jurisdiction was derived by courts through common law and was exercised by the issuance of an appropriate writ. The courts duty normally is to confine itself to questions of legality, i.e., the authority exceeded its power or abused them, did it act in violation of principles of natural justice or has it acted in irrational, unreasonable and arbitrary manner or the like. Broadly speaking, administrative action is subject to judicial review on three grounds namely. (a) illegality (b)

irrationality (c) processual impropriety. But this may be true of cases where public authority has performed its public duty and the action is questioned. Before mandamus can issue there must be a duty, without discretion, upon the person or body, whom the order is directed to do the very thing ordered.190 Before one can seek a writ of mandamus, he has to prove that he has legally protected and judicially enforceable right.191 Mandamus will not lie to enforce a departmental manual or instructions not having any statutory force. It will also not lie to enforce the concession. Restrictions on the remedies in mandamus In 1977 there was a procedural reform introduced in the matter of an application for 189. Sri Krishan v. Kurukshetra University, AIR 1976 SC 376. 190. Vardy v. Scoll., (1976) 66 DLR (3d) 431. 191. Shabi Construction Co. v. City & Industrial Development Corp., (1995) 2 Scale 836. judicial review governed by the substituted order 53 of rules of the Supreme Court which provides the court shall not grant leaves unless it considers that the applicant has a sufficient interest in the matter to which application relates. In a case, as a policy decision the police authorities were not taking steps against gambling clubs for bench of gambling laws. The duties and responsibilities of police authorities were seriously criticized alleging that the police is a servant of law and none else. They were not answerable to the secretary of the state for discharging their duties under the law. It was held that the applicant had sufficient interest to be protected and that any person who was adversely affected by the action of Commissioner of police in making mistaken policy decision would have such interest.192 The House of Lords in Gouriet v. Union of post office workders,193took a very restrictive view considering the series of case and points and held that it was fundamental

principle of English Law and the public rights can only be ascertained in a civil action by Attorney General or officer representing public except where a statute otherwise provides that a private person can bring action to restrain against threatened breach of law of his claim was based on a allegation as a threatened breach would constitute an infringement of his private rights or would inflict the special damages on him. It was held that an ordinary citizen could not obtain a declaration that a particular course of conduct would be a breach of criminal law. Certiorari Certiorari is an extra ordinary common law remedy of ancient origin. It is not a writ of right but one of discretion. The object of writ is to curb excess of jurisdiction, to keep the inferior courts and tribunals within their bounds. Its purpose is to bring for review before a 192. R.v. Commissioner of Police, (1968) 1 All ER 763. 193. (1977) 3 All ER 70. superior court the proceedings and judgments of inferior courts and tribunals clothed with authority to act judicially, where no appeal or other adequate remedy is available and is appropriate in all such cases where the substantial rights of an applicant have been so far invaded as to prejudicially affect him. The court does not substitute its own decision nor does it direct the body whose decision is quashed as to the decision it is to come to an reconsidering the matter. But of course, it will reach its decision in the light of the courts ruling so that if a decision is quashed for a procedural error, the correct procedure as indicated by the court must be followed where the matter is to be considered afresh. Where an administrative action is ultra vires it can be controlled by certiorari and also by some other public law remedies. But where such an action violates the rules of natural justice or the tribunal merely commits an error of law, certiorari is practically the main method of judicial control. This scope of certiorari has made it a very suitable method

to control administrative tribunals. A consequence of modern social service state has been the increase of administrative tribunals. Therefore the importance of certiorari has also increased in recent years. Joseph Chitty in his book on General Practice, 3rd Edn; Vol. II, P. 352-a said; As an essential mode of exercising a control over all inferior courts has a most extensive power to bring before in their proceedings, and fully to inform itself upon every subject essential to decide upon the propriety of proceedings below. This is affected by a writ called certiorari The writ issues in civil as well as criminal cases. Thus, such a writ was ordered to be issued to judge of an inferior jurisdiction, to return and certify the practice of his court. The prerogative orders are for the control of the public power and will not issue so as to control the abuse of private power, for which other remedies must be sought. Grounds for issuing writ The grounds on which certiorari may be involved is an error of law apparent on the face of record and not every error either of law or fact which can be corrected by the appellate or provisional authority. This writ is not meant to take the place of appeal. It lies where the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of law which it was meant to administer. Mere formal or technical error even though of law will not be sufficient to attract this extraordinary jurisdiction. Where the errors cannot be said to be errors of law apparent on the face of the record, but they are merely error in appreciation of documentary evidence, or errors in drawing inferences or omission to draw inference or in other words, errors which a court of appeal only, could have examined, but such errors could not be corrected by certiorari.

Broadly speaking an essential feature of a writ of certiorari is that the control which is exercised through it over judicial, quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity. The writ of certiorari can be issued to correct an error of law. But it is essential that it should be something more than a mere error: it must be one which must be manifest on the face of record. Scope A writ of certiorari will lie to control a statutory body which can be said to be quasijudicial entrusted with quasi-judicial functions. There are three requisites in order that the act of body may be said to be quasi-judicial act, namely that the body of persons (a) must have legal authority (b) to determine question affecting rights of parties (c) must have the duty to act judicially. Since a writ of certiorari can be issued only to correct the errors of a court or a quasi-judicial body it would follow with the rule and determining test for ascertaining whether an act authorized by a statute is a quasi-judicial act or an administrative act and whether the statute expressly or impliedly imposed upon the statutory body the duty to act judicially as required by the third condition. Where the authority is not a court is empowered by the statute to the contrary, the authority is under a duty to act judicially and the decision of authority is a quasi-judicial act and when statutory authority has power to do an act which will affect the rights of a subject then although there are no two parties and contest is between the authority and the subject the final determination of authority will be quasi-judicial act provided the statute required the authority to act judicially. A statute is not likely to provide in so many words that the authority passing the order is required to act judicially: that can only be inferred from the express provisions of the statute in the first instance in each case and no one considers alone will be determinative of the question whether the authority set up by statute has the duty to act judicially will

depend on the express provisions of the statute read along with the nature of rights affected, A duty to act judicially may arise in widely different consideration which it will be impossible and indeed advisable to attempt to define exhaustively. An authority in dealing with cases of examinee using unfair means in examination halls in acting quasi-judicially and the principles of natural justice will apply to the proceedings before the said authority, though there is nothing express one-way or other in the act or regulations casting a duty on the committee to act judicially, the manner of disposal based as it must be materials placed before it and serious effects of the decision of the committee on the examinee concerned must lead to the conclusion that a duty is cast on the committee to act judicially in that matter, particularly as it has to decide objectively certain facts which may seriously affect the rights and careers of examinee, before it can take any action in exercise of its power under regulation. In Ridge v. Baldwin,
194

it was observed that the duty to act judicially was an

additional requirement, was irreconcilable with the earlier authorities and that one may infer the judicial element required for certiorari to go, from the nature of that power to the need for super added characteristic had resulted for a time, in a limitation being placed on the availability of certiorari removed it. In Ridge v. Baldwin what was directly in issue was not whether certiorari was available as the party was seeking a declaration but whether the natural justice should have been observed. In India, the principles laid down by the English Court are not strictly applicable to proceeding under articles 32 and 226 of constitution. The English Court is only authorized to issue certiorari but not a writ in the nature of certiorari as articles 32 and 226 provides. The earlier decisions of the Supreme Court strictly relying upon English Principle have been diluted by subsequent decisions of the Supreme Court which has enlarged the scope of certiorari.

Purpose The purpose of writ is not to take place of writ of error or appeal, but to cause the entire record of the inferior court to be brought up for inspection, in order that the reviewing court may determine from face of record whether the inferior court has exceeded its jurisdiction or has not proceeded according to the essential requirements of the law. Formal or technical errors causing no substantial injustice are not sufficient grounds for its issuance. This is a discretionary remedy and is not a matter of right. It will be granted or denied according to all the circumstances of each particular case, as the ends of justice may require and in accordance with sound public policy. One of the factors that the court may have to consider and which may affect the grant of the remedy is the availability to the applicant of another remedy which is equally convenient, beneficial and effective.

194. (1963) 2 All ER 66. When it will Lie- It should be issued ifa) It is a requirement of rules of natural justice that a party to the proceeding and

particularly the defendant in criminal case should be given a reasonable opportunity to present his case and that included a reasonable opportunity to prepare his case before being called on to present it. b) There was no general rule that certiorari could not have to be issued to correct a

breach of rules of natural justice when the manifestation of that breach took the form of refusal to grant an adjournment. When the central allegation was that the applicant had not been given a reasonable time to prepare his case, the mere fact that had become apparent as a result of adjournment did not prevent the court from treating the basic cause of complaint, i.e.; the failure to provide the applicant with adequate time as being a ground on which certiorari should be granted.195

Certiorari will lie when a tribunal may lack jurisdiction if it is improperly constituted or if it fails to observe certain essential preliminaries to the inquiry. But it does not exceed its jurisdiction by basing its decision upon an incorrect determination of question that has empowered or required to determine. A jurisdiction of an inferior tribunal may depend upon fulfillment of some condition precedent or upon the existence of some particular fact. Such a fact is collateral to the actual matter which the tribunal has to try and the determination whether it exists or not is logically prior to determination of the actual question which the tribunal has to try. The tribunal must itself decide as to collateral fact, when at the inception of inquiry by a tribunal of limited jurisdiction challenge is made to its jurisdiction, the tribunal has to make up its mind whether it will act or not and for that purpose to arrive at some decision on whether it has jurisdiction or not. There may be tribunals which by virtue of legislation constituting them have the power to determine officially the preliminary facts 195. R.v. Thames Magistrate court, ex parte Polemis, (1974) 2 All ER 1219 (QBD).

of which the further exercise of their jurisdiction depends but subject to that an inferior tribunal cannot by a wrong decision with regard to the collateral fact give itself a jurisdiction which it would not otherwise possess. Against whom Certiorari will liea) b) c) d) An order to take over a school for wrong reasons or in breach of natural justice.196 An order wrongly not to hold a public inquiry.197 A local authority that wrongfully grants a licence.198 Wrongfully grants planning permission.199

e)

A local authority whose decisions no longer to advertise vacant posts in the Times Educational Supplement had been made in bad faith and motivated by vindictiveness.200

f) g)

A valuation officer who makes a rating list on wrong principles.201 An immigration officer who refuses leave to enter on wrong grounds.202

Certiorari lies to correct only errors of law and not of fact. It is not available to review the errors of judgment that may have been committed by the authorities when acting within its jurisdiction. Against whom certiorari would not lie Even though the scope of the doctrine of natural justice and the writ of certiorari has 196. Madrana Mosquie Board of Trustees v. Mahmud, (1966) 1 All ER 545 (PC). 197. R.v. Secy. of State, ex.P.Binney, (1983). 198. R.v. LCC, (1931) 2 KB 215, CA. 199. R.v.Hendm RDC, (1933) 2KB 696. 200. R.v. Derbyshire County Council, (1991) 3 Admin. LR 241. 201. R.v. Paddington Valuation officer, (1965) 2 All ER 836 (CA). 202. R.v. Chief Immigration Officer, Lympne Airport, (1968) 3 All ER 163, DC. been amazingly widened by the recent decisions of Supreme Court, certain limitations still exists. Certiorari would not issue against legislation by way of statute or an ordinance issued under the constitution. The proper remedy in such cases is a suit for declaration that the Act or Ordinance is unconstitutional or void. Nor would it issue to question the wisdom of governmental policy. How far certiorari can be barred by statute

The remedies under articles 32 and 226 being constitutional remedies, can not be barred by statute. Thus, the legislature cannot prevent the court from determining, in a proceeding under these articles, whether the provisions of a statute have been complied with. Even when the law confers final power upon a quasi-judicial tribunal or authority to decide a matter, so that the decision of the tribunal cannot be challenged in a court of law, certiorari shall lie to quash the decision if (i) it is without jurisdiction; or (ii) there is an error apparent on the face of the record (iii) there is any irregularity in the procedure adopted which goes contrary to the principles of natural justice. In such cases if the inferior tribunal has not acted without jurisdiction and has merely made an error of law then certiorari would not issue. Who may apply for Certiorari 1. In Chiranjit Lals case,
203

it was generally stated that except in the case of a

proceeding for habeas corpus, none but the person whose rights have been affected can apply under article 32. 2. Certiorari can be exercised only at the instance of a person who is qualified for the

post and who is a candidate for the post. The appointment can not be challenged by one who 203. AIR 1951 SC 41.

is himself not qualified to be appointed.204 An unregistered trade union or trade union whose registration has been cancelled has no matter of right whatsoever. Only a registered trade union under Trade Union Act has locus standi. 3. There is no doubt that a person aggrieved by the impugned order shall be entitled to

apply. The order need not be expressly adverse to the petitioner in order to make him a person aggrieved.

4.

But the concept of aggrieved person can not be confined within the bounds of a

rigid definition: its scope and meaning depending on various circumstances, including the context of the statute. The following propositions may be arrived at: a) In relation to remedial statutes for the protection of private rights, a restricted

meaning is given, so that only a person whose legal rights have been denied or invaded is regarded as a person aggrieved. b) An enlargement of the foregoing principle takes place where a persons legal interest

has been prejudiced though it is not a case of denial of any legal rights, or even though the interest affected is not a proprietary or even a fiduciary interest, and even though he was not a party to the proceeding in which the order was made. `But a person has no locus standi to challenge an order which does not affect his interest, e.g.; where the grant of mining lease in favour of X does not affect the area over which the petitioner has another lease, unless he was a party to the proceeding out of which the impugned order in favour of X arose. c) A person who was a party to the proceeding out of which the impugned order arises,

is a person aggrieved.

204. B.Srinivasa Reddy v. Karnatka Urban Water Supply Board ,AIR 2006 SC 3106. d) A more liberal approach is required in statutes dealing with professional conduct and

morality. So that any person or institution, such as Bar Council is interested in professional ethics is to be regarded as a person aggrieved even though no legal rights of such person or authority has been denied nor any financial burden imposed. But certiorari will not be granted in favour of(i) a person at whose instance or in whose favour the impugned order has been made.

(ii)

a person who never applied for a permit can not be regarded as a person who was

aggrieved by an order granting it to another person. (iii) (iv) a person in whose favour no justiciable legal right was created by relevant statute. a party who has lost his right by laches.

but this principle should not exclude persons who are directly affected by impugned order. Parties to proceeding for certiorari The following are necessary parties to a proceeding for certioraria) b) c) the inferior tribunal or authority against whose order relief is sought. any other authority in whose possession record remains. any person who is interested in maintaining the regularity of proceedings out of

which the petition arises or would be affected by the decision of court. d) where the order of an authority is subject to confirmation by another body, the latter

is not a necessary party, for, on confirmation, it is the order of initial authority which becomes ineffective. But the position would be otherwise where the final order has been passed on review or appeal by superior authority. No relief can be given to the petitioner in such a case if the superior authority has not been impleaded or is outside the jurisdiction of High Court. Practice and Procedure When a superior court issues a rule on an application for certiorari it is incumbent on inferior court or tribunal, to whom the rule is addressed, to produce the entire records before the court along with the return. Scope of proceeding Since the function of the superior court in a proceeding for certiorari is supervisory not appellate, the superior court will not review the intra vires findings of the inferior tribunal, even if they are erroneous.

On the other hand, a superior court in India can issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, free from technicalities of English Law, so long as the fundamental principles which govern the exercise of this jurisdiction are adhered to. It is well settled principle(i) that the technicalities associated with the prerogative writs in English law have no

role to play under our constitutional scheme. (ii) that a writ of certiorari to call for records and examine the same for passing

appropriate orders, is issued by the superior court to inferior court which certifies its record for examination. (iii) that a High Court can not issue a writ to another High Court, nor can one Bench of a

High Court issue a writ to different Bench of High Court; much less the jurisdiction of a High Court be invoked to seek issuance of writ of certiorari to the Supreme Court. The High Courts are not constituted as the inferior courts in our constitutional scheme. Writ of certiorari is not available to correct mere errors of fact or of law unless(i) the error is manifest or apparent on the face of proceeding such as when it is based

on clear ignorance or alter disregard of provisions of law. (ii) a grave injustice or gross failure of justice has occasioned.

Appeal Appeal lies to the Supreme Court against an order in a proceeding for certiorari under articles 132/136 as may be applicable. Proceeding by way of certiorari are not of course. Hence Supreme Court would not interfere with a dismissal of a petition for certiorari at the High Court unless the Supreme Court is satisfied that there has been a failure of justice. Thus the Supreme Court has set aside an order granting certiorari on the ground, inter alia, that-

the High Courts decision that there has been a failure of natural justice in proceeding before a quasi-judicial tribunal is erroneous. On the other hand, the court has set aside the order of High Court refusing certiorari. Where the High Court dismissed in limine an application under article 226 for quashing an order of tribunal which was found by the Supreme Court to be without jurisdiction. Though the effect of writ of certiorari is to quash an order complained of, a willful disobedience thereto may constitute contempt punishable under the Contempt of Courts Act, e.g., where the authority enforces against the party the very order which has been quashed. Certiorari and Prohibition As means of jurisdictional control, prohibition and certiorari cover broadly the same ground. The main difference is that certiorari quashes an order or decision already given and prohibition prevents an order or decision being made which if made would be subject to certiorari. It is convenient to seek both remedies in the same proceedings when a decision in excess of jurisdiction has already been made and other similar decision has yet to be made. Certiorari and Mandamus Both may be sought in same proceedings. Certiorari to quash a decision in excess of jurisdiction and mandamus to compel the tribunal to hear and determine the case according to law.

Prohibition
In common law of England, the writ of prohibition is one of the oldest prerogative writs. In its early days, it was used very largely to prevent the ecclesiastical courts from encroaching upon the domain of the common law courts. Later it was used with very devastating effect against the growing jurisdiction of Admiralty court. It was often used also against the special courts of cities like London and Bristol. It was that, when by the latter

half of the 19th century, the law of prohibition has been fairly well developed and its principles satisfactorily defined. Prohibition is a judicial writ issued from a superior jurisdiction to an ecclesiastical or similar tribunal or an inferior temporal court including under the letter description, administrative authorities having a duty imposed on them to proceed judicially, to prevent violation of rules of natural justice or in contravention of the Laws of the land. Originally the order of prohibition is an order issuing out of High Court of justice and directed to an ecclesiastical or inferior temporal court which forbids that court to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of land. The writ of prohibition was issued originally only out of the Kings Bench, as it was Kings prerogative writ. It is said, prohibition gives the superior courts of Westminster, superintendence over all inferior courts. The history of writ of prohibition was discussed in R.v. Chancellor of St. Edmundsbery & Ipwich Diocese 205. But a cause or proceeding in High Court or Court of appeal can not be restrained by Prohibition. Another distinct feature of this writ is that it is a preventive rather than a corrective remedy and it is issued only to prevent the commission of a future act and not to undo an act already performed.

205. (1948) 1 KB 195. This writ will lie in proper cases as to matters of purely judicial nature. It will not go if the proceedings which is sought to prevent are only ministerial and this remedy is granted only in cases where the usual or ordinary forms of remedy are insufficient to afford redress and it is a principle of universal application and one which lies at the very foundation of the law of prohibition that the jurisdiction is strictly confined to cases where no other remedy exists and it is always a sufficient reason for withholding the writ that the party aggrieved has another and complete remedy at law. This writ will not be allowed to take place of an

appeal, nor will it be granted as an exercise a purely appellate jurisdiction. In R.v. Electricity Commissioner, 206 Atkin LJ observed as follows: Both writs ( Prohibition and certiorari) are of great antiquity forming part of the process by which the Kings court restrained courts of inferior jurisdiction from exceeding their powers. Prohibition restrains the tribunal from proceeding further in excess of jurisdiction; Certiorari requires the records or order of the court to be sent up to Kings Bench Division to have its legality enquired into and if necessary to have the order quashed. Prohibition lies not only for excess of or absence of jurisdiction but also for a departure from rules of Natural Justice. The writ of prohibition is a very ancient origin and it may be said to be as old as the common law itself. In England, the jurisdiction by this ordinary remedy was generally exercised only by the court of the Kings Bench, although it was not exclusively confined to that tribunal. The writ of prohibition may be defined as extraordinary judiciary writ, issuing by the court of superior jurisdiction and directed to an inferior court for the purpose of preventing the inferior tribunal usurping the jurisdiction with which it was not legally vested. It is the original remedial writ and is the remedy afforded by the common law to correct encroachment of jurisdiction by inferior courts and is used to keep such courts within 206. (1924) 1 KB 171.

the limits and bounds prescribed for them by law. The object of the writ being to restrain subordinate judicial tribunal of every kind from exceeding their jurisdiction, its use in all appropriate cases should be upheld and encouraged and since it is the vital importance to the due administration of judges that every tribunal vested with judicial function should be confined strictly to the exercise of those of powers with which it has been by law entrusted.

The language used in articles 32 and 226 of constitution is very wide and powers of the Supreme Court as well as of the High Court in India extend to issue orders, writs or directions including writs in the nature of habeas corpus, mandamus, quo-warranto, prohibition and certiorari as may be considered necessary for enforcement of fundamental rights and in cases of High Court for other purpose as well. In view of the expressed prohibition in the constitution we need not look back to the earlier history of the procedural technicalities of this writ of English law and not feel oppressed by any difference or change of opinion expressed in particular case by English Judges. It we do not keep to the board fundamental principles that regulate the exercise of the jurisdiction in the matter of granting such writ in English law, the exercise of jurisdiction becomes rudderless and unguided; it tends to become arbitrary and capricious. There will be no inconformity of approach and there will be danger of the jurisdiction becoming penalized. The perimeter of jurisdiction would vary from judge to judge and from court to court. The law does advance, the jurisprudence thus undoubtedly develops with the passage of time, but not forgetting the fundamental and not by abandoning them. The writ of prohibition may be defined as extraordinary judicial writ, issuing by the court of superior jurisdiction and directed to an inferior court for the purpose of preventing the inferior usurping the jurisdiction with which it was not legally vested. It is very ancient origin and it may be said to be as old as the common law itself. It is a original remedial writ and is the remedy afforded by the common law to correct encroachment of jurisdiction by inferior courts and is used to keep such courts within the limits and bounds prescribed for them by law. The object of the writ being to restrain subordinate juridical tribunal of every kind from exceeding their jurisdiction, its use in all appropriate cases should be upheld and encouraged and since it is the vital importance to the due administration of judge that every

tribunal vested with judicial function should be confined strictly to the exercise of those of powers with which it has been by law entrusted. Nature of the writ The writ of prohibition is of very ancient origin and it may be so be as old as the common law itself. Three conditions are necessary to warrant the granting of the relief; first, that the authority against whom it is sought, is about to exercise judicial or quasi-judicial power. Second, that the exercise of such power is unauthorized by law. Third, that it will result in injury for which no other remedy exists. It is not a writ of right, granted ex debito justice, but rather one of sound judicial discretion, to be granted or withheld according to the circumstances of each particular case. It being a prerogative writ, it is to be used like all other prerogative writs with great caution and forbearance for furtherance of justice and to secure order and regularity in proceedings, when none of the ordinary remedies provided by law are applicable. The most important distinguishing feature of this writ is that it is a preventive rather than a corrective remedy, and unless it issues only to prevent the commission of a future act, and not to undo an act already performed. The remedy is employed only to restrain the authorities from acting in excess of their powers, and if their proceedings are within the limits of their jurisdiction, prohibition will not lie. The court has power to issue writ of prohibition to prevent a court or tribunal from proceeding further when the imperial court or tribunala) b) c) proceeds to act without or in excess of jurisdiction. proceeds to act in violation of rules of natural justice, proceeds to act under law which is itself ultra vires or unconstitutional; or

d)

proceeds to act in contravention of fundamental rights. A writ of order of prohibition cannot be issued prohibiting a quasi-judicial or

statutory authority from discharging its statutory functions or transferring those functions to another jurisdiction. Limits to the writ of prohibition 1. Prohibition will lie only against judicial or quasi-judicial proceedings and not against

the exercise of legislative or executive functions, or against private persons or associations. 2. Prohibition can be issued only so long as the proceedings are pending before the

inferior court or tribunal and cannot become functus officio. 3. Prohibition is not available where the inferior tribunal had jurisdiction but exercise it

irregularly or erroneously. Who may apply In Forster v. Forster & Bridge, it was held that where prohibition is applied for by a party on the ground of want of jurisdiction in the inferior tribunal prohibition will be granted ex-debito justitiae, but if application is by stranger, the writ is merely in the discretion of the court. In London Corp.v. Cox207, it was held that a stranger can apply for prohibition only it on the ground of absence or excess of jurisdiction. The purpose of the original writ of prohibition in England was to secure the sovereign rights and preserve the public right. It was one of the Kings prerogative writs 207. (1867), LR 2 HL 239.

necessary to perfect the administration of his justice and to control subordinate functionaries. Not only the party injuriously affected by the proceedings of the inferior court, but any subject of the King, was allowed to interfere to prevent an excess of jurisdiction but in later case the issuance of the writ was discretionary. The issuance of the

writ is now quite generally regulated by the statute and confined in the case of a private party, to one beneficially interested. But in India strangers are not allowed to move such a writ which is confined only to persons aggrieved except of course in appropriate cases through public interest litigation. When Prohibition refused When the tribunal had jurisdiction to pass an order but in the exercise of that jurisdiction it committed a mistake of law.208 Where the jurisdiction of the tribunal to entertain an appeal required to be decided on disputed and complicated questions of fact.209 Where the proposed action was within the powers of the tribunal, but was challenged on the ground of mentioning of a wronged section.210 Difference between Prohibition and Certiorari There is one fundamental distinction between the two writs, namely, writ of prohibition and a writ of certiorari. They are issued at different stages of the proceedings. When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a writ of prohibition and on that, an order will be issued forbidding the inferior court from continuing the proceedings. On the other hand, if the court hears that cause or matter and gives a decision the party aggrieved would have to move the superior court for a writ of certiorari and on that 208. Gobinda Menon v. UOI, AIR 1967 SC 1274. 209. Ebrahim Aboobaker v. Custodian General of E.P., 1952 SCR 696. 210. Isha Beevi v. Tax Receieving officer, AIR 1975 SC 2135.

an order will be made quashing the decision on the ground of want of jurisdiction. Broadly speaking, a writ of prohibition will be issued when the proceeding are to any extent pending and the writ of certiorari for quashing, after they have terminated in a final decision. Prohibition is to prevent an unlawful assumption of jurisdiction, not to correct mere errors or irregularities in matter over which the court has jurisdiction. Where the general scope and purpose of the action is within the jurisdiction of the court, any error or over stepping of its authority in a portion of its judgment or any other error in its proceedings is only ground for review or appeal and not prohibition. That is to say, where there is authority to do an act but the manner of doing it is improper, the writ of prohibition will not lie. Availability of Prohibition in some particular proceedings Criminal Proceedings- While the court should not normally interfere with criminal investigations, it may prohibit the continuance of a criminal proceedings at any stage before its conclusion, in extraordinary cases, in order to prevent an abuse of process of court in cases like the following(i) Where the proceeding was launched by a person who was not competent to make

FIR or to institute prosecution under the relevant law. (ii) Where the FIR or the complaint ex facie does not show that the accused committed

any offence. (iii) Customs- Prohibition will issue to restrain a custom authority to pursue a notice for

confiscation of imported goods, in case he had no jurisdiction to initiate the proceedings or to make inquiry or to confiscate the goods, under the relevant law. (iv) Taxation- In the field of taxation, the court may issue prohibition, interalia, in the

following cases-

a)

to restrain an assessment proceedings which the taxing authority had no jurisdiction

to make under the relevant law, or where the proceeding was unconstitutional being violative of a fundamental right. b) to restrain the recovery of a tax or fee without the authority of law or under rules

which were ultra vires, or under a law which was unconstitutional. When Prohibition granted as of right When there is entire absence of jurisdiction over the subject matter of the action and this is apparent on the face of proceeding the granting of relief by prohibition is not a matter of discretion, but one of the absolute right. The writ will issue notwithstanding the respondents by its action may acquiesce in the exercise of the jurisdiction by the inferior court since the jurisdiction over the subject matter of an action can never be derived from consent of parties. In Ex parte Smith, it was held that the exercise of jurisdiction is not confined exclusively to restrain proceedings in court of law, but it extends also to proceeding equity. When the Supreme Court of the state is vested by the constitution of the state with power to issue such remedial original writs as may be necessary to give it a general superintendence and control over inferior jurisdiction, it may grant prohibition against subordinate court whether of general or limited jurisdiction and whether the court of law or of Chancellery and when a court of Chancellery has exceeded its power prohibition will lie to restrain it from proceeding. In Quimbo Appo v. People,
211

it was held that the province of this writ is not

necessarily confined to the case where the subordinate court is absolutely devoid of jurisdiction, but it is extended to case where such tribunal although rightfully entertaining jurisdiction of the subject matter in controversy has exceeded its legitimate power.

Quo-Warranto
Quo-Warranto is the name of the writ by which the action is commenced for recovering of an office of franchise from the person or authority possessing the same without valid title to the office and / or usurping the same. It is the remedy or proceeding whereby the court enquires into the legality of the claim which a party asserts to an office or franchise and to oust him from its enjoyments if the claim is not well-founded or to have been declared forfeited and to recover it. In short, quo-warranto means by what authority. The procedure of quo-warranto confers jurisdiction and authority on the court to control executive action in the matter of making an appointment to public office relevant statutory provisions. It also protects from illegal derivation of public office to which he may have the right. It leads to protect the public from usurping of public office; in some cases persons not entitled to public office may be allowed to occupy them and continue to hold them as a result of connivance of executive or with its active help. In such case, jurisdiction of the court to issue writ of quo-warranto is properly invoked, the usurper can be ousted and the person entitled to the post can be allowed to occupy it. Before a citizen can claim a writ of quo-warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority. Who may apply A writ of quo-warranto may be applied at the instance of any person even who has no personal or special interest. He may be a stranger. This is an exception to the general rule of locus standi applicable in case of mandamus, certiorari or prohibition where before a person can apply for a writ it has to be established that his legal right has been affected or he was prejudicially affected by an act or omission of the authority.

Who can apply In R. v. Speyer 213 which was followed in several cases in India decided thata) b) a stranger whose delay was not in proper who applied for a writ of quo-warranto, a quo-warranto will lie if there will be a public office of substantive character even if

such office is held at pleasure, c) even if an appointment to the office is made by crown and the court cannot, even in

appeals, command the crown, writ of quo-warranto operates on the holders of office. d) it is not to be supposed that the crown would re-appoint a person to an office from

which it has been ousted by a writ of quo-warranto on the ground that his appointment was illegal because this is the Kings court; who are sitting here to administer the justice and to interpret the laws of the realm in the Kings name. It is respectful and proper to assume that once the law is declared by the competent judicial authority, it will be followed by the Crown. If a stranger acting bonafide can apply for a writ of quo-warranto, to a fortifori person having a special interest in it will be entitled to do so. Any member of public acting in good faith can apply for a writ of quo-warranto, the remedy being discretionary and the court will consider whether the applicant is a fit person to apply for the writ. Accordingly, the writ will not be granted to a person who was a candidate of election and who did not object to the nomination of another candidate at the same election, but acquiesced or conquered in the very act of which he complained in this application. Reason that he must not be interested in the result of the application. The Calcutta High Court in Amrendra v. Nagendra 212 held office of the member of managing committee of a private school was not an office of public nature. The more fact that a small section of the public had interest in the school did 211. (1916) 1 KB 595.

212. ILR 1953 Cal 114. not make the office a public office. The full Bench of Delhi High Court in P. L .Laxman Pal v. A. N. Ray
213

held that the scope of High Courts power to issue a writ of quo-

warranto under article 226 was not wider than it was in England and Indian courts had followed the principle governing the issue of writ of quo-warranto including the limitation which had been well established in England. One of these principles is that the court will not issue a writ of quo-warranto if it would be futile as were alleged defects in original appointment can be cured by immediate re-appointment. Consequently the petition for a writ of quo-warranto challenging the validity of appointment of the Honble Mr. Justice A. N. Roy, CJ, on the ground it violated the article 124 (2) and the rule of seniority inherent in it was dismissed as writ would be futile. As a result of resignation of Justice Shelat, Justice Hegde, and Justice Grover, Justice A.N.Roy became the senior most justice and could be immediately appointed to the office of Chief Justice of India. When quo-warranto is or is not available Appointment of presiding officer of the labour court can be challenged in a writ petition challenging the award given by him in discharge of such function. Such challenge is direct and not collateral. The proceeding by information in the nature of quo-warranto will lie for usurping any office whether created by Charter alone or by Crown with the consent of parliament provided that the office to be a public in nature and a substantive office, not merely function or employment of a deputy or a servant held at will and pleasure of others. Merely making a claim to an office is enough to justify a writ of quo-warranto.214 A writ of quo-warranto was prayed for against a magistrate who was appointed a judge of the labour court on the ground that he should not be deemed to have held judicial 213. AIR 1975 Del 66.

214. R.v. Tate, (1803) 102 ER 860.

office as required under section 7 of Industrial Disputes Act. It was held that the phrase holding judicial office in section 7 of the Act does not mean that he should be a wholetime judicial officer. He may have multifarious other duties but if he also had judicial function to discharge requirements of section 7 were complied with.215 When an appointment or promotion of an officer is challenged on the ground that he is not eligible under service rules the proper remedy is only to apply for the writ of quowarranto.216 Quo-warranto does not lie It does not lie for quashing the order for creation of post before incumbent was appointed. Resignation from public office cannot in every case constitute a defence to an application for ouster. After the affidavits have been filed and the case is ripe for hearing before such resignation the respondent cannot then by surrendering office divest the court of jurisdiction nor thwart the purpose of proceeding. Office must be of public nature The Supreme Court in case of University of Mysore v. Govind Rao,
217

held that

before a citizen can claim writ of quo-warranto, he must satisfy the court, inter alia, that the office in question is a public office. So writ is granted only in respect of office which is public in nature. The office must be independently entitled and not held by one discharging the functions at the will and pleasure others. To warrant a court in entering information in the nature of quo-warranto a case must be presented in which public have some interest. The information in the nature of quo-warranto will lie for usurping any office whether created by

215. The Statesman Pvt. Ltd. v. H.R. Dev, AIR 1968 SC 1495. 216. Mir Gulam Hussain v. UOI, AIR 1973 SC 1138. 217. AIR 1965 SC 491.

Charter alone, or by the act of parliament provided it is an office of a substantive, public nature and not merely the function or employment of an agent or servant terminable at the will of others. The three to be applied. First, source of the office, Second, its tenure, Third, its duty. The source of the office should be from Crown or the sovereign authority either by Charter or legislative enactment, its tenure should be fixed and permanent and its duty should be of a public nature. Office must be of Substantive nature It will lie only if the office is sustentative in character, that is, an office independent in title and if the holder of the office is an independent official, not one discharging the functions of a deputy or servant at the will and pleasure of others. In R.v. Speyer, Lord Reading observed, I have found it difficult to understand why in principle an office of permanent nature be the subject to this remedy, provided the office be of a public and substantive character, particularly as an office held at pleasure, is often in effect of permanent character after considering the authorities since it appears to me that they rest upon the principle formulated in that case and are only the application of it to particular fact. Delay- The exercise of discretion by the court even where the application is delayed, is to be governed by the objective of promoting public interest and good administration and on that basis discretion can not be exercised in favour of interference where it is necessary to

prevent continuation of usurpation of public office or perpetuation of an illegality. Quowarranto can not be dismissed merely on ground of laches.

Burden of Proof
General rule is that the burden of proof is on respondent. When the court calls upon an individual to show his title to an office he must show the continued existence of every qualification necessary to its enjoy. He must set out his title specifically and show on the face of answer that he has a valid title. People are not called on to show anything. The entire burden is on the defendant. Petitions against violations of Fundamental Rights The liberal rule of locus standi allowed claims against violations of Human Rights on the behalf of the victims of political oppression, social tyranny and economic exploitation to be made by persons or organizations motivated by public interest. The court went into the allegations of the killing of innocent people or suspected accused through false encounters218, the death of person in police custody because of torture 219, and the case of courts intervention was sought against inhuman working conditions in stone quarries 220, for controlling occupational health hazards and diseases to workers in asbestos industry,221 for banning import, production and distribution and sale of forty named insecticides that caused health hazard and were banned in the United States,222 and to get CBI to inquire into Gajraula Nuns rape case and into alleged police atrocities. 223 The Supreme Court took cognizance of practice of chaining the inmates of a mental hospital. The court found that some inmates have 218. Chaitanya kalbagh v. U.P. (1989) 2 SCC 314. 219. D.K. Basu v. State of W.B. (1997) 6 SCC 642. 220. Bandhua Mukti Morcha v. Union of India, AIR 1992 SC 38.

221. CERC v. India, AIR 1995 SC 922. 222. Dr. Ashok v. India, AIR (1997) 5 SCC 10. 223. M.J. Cherian v. India, (1992) 1 SCC 397. been kept naked. It asked the government to implement the report of committee by physicians given in that regard.224 Not only the class of people whose grievances came to the court changed but courts approach also changed. Under the traditional paradigm, a court would not have gone into how inmates were being treated in a mental hospital or it might not have asked the CBI to inquire into the allegation of exploitation of children in the flesh trade. A proactive judicial strategy became the most distinguishing characteristic of judicial activism. Referring to the changed clientele of the court, J.Bhagwati said in Bandhua Mukti Morcha v. UOI: 225 It must be remembered that the problems of the poor which are now coming before the court are qualitatively different from those which have hitherto occupied the attention of the court and they need a different kind of layering skill and a different kind of judicial approach. It we blindly follow the adversarial procedure in their case, they would never be able to enforce their fundamental rights. The question whether a person has the locus to file a proceeding depends mostly and often on whether he possess a legal right and that right is violated. But, in appropriate case, it may become necessary in changing awareness of legal rights and social obligations to take a broader view of question of locus to initiate a proceeding, be it under article 226 or 32 of the constitution. If the public property is dissipated, it would require a strong argument to convince the court that representative segments of the public or at least a section of public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations. Conclusion

The Constitution confers power on the Supreme Court under article 32 and the High Courts 224. Supreme Court Legal Aid Committee v. M.P., AIR 1995 SC 204. 225. AIR 1984 SC 802, 815. Under article 226 to issue writs and orders in the nature of habeas corpus, mandamus, certiorari, prohibition and quo-warranto. The Supreme Court can issue these writs for the enforcement of the fundamental rights and High Courts can issue them for the enforcement of fundamental rights and for any other purpose. The Supreme Court held that for any other purpose meant for the enforcement of any statutory as well as common law right.226 Further, the constitution is farsighted in using the words in the nature of because it liberates our courts from the technical constraints with which the writs in England were hedged. In one of these earliest judgments, the Supreme Court made it clear that it would not stand on the formality of the petitioners having asked for a specific remedy. If the petitioner establishes the case of violation of his right, the court would issue an appropriate for. 227 Since the constitution uses the words in the nature of it does not make our writs identical with those in England but only draws an analogy from the latter. Secondly, our courts can issue directions, orders or writs other than the prerogative writs. This leaves to the courts in India a good deal of elasticity to deal with problems in hand. It enabled them to use the private law remedies of injunctions given by the CPC in the discharge of its public law function. The Supreme Court has observed that the scope of the writs under the Indian constitution is wider than that of prerogative writs in England. Although the constitution does not expressly say so, the courts have made a distinction between issuance of writs for the enforcement of fundamental rights and issuance of writs for other purpose. A person could lose his right if he came to the court after

a long delay.228 That decision was severely criticized in academic writings 229. The law of limitation applies 226. Calcutta Gas Co. v. State of W.B., AIR 1962 SC 1044. 227. T.C. Basappa v. T. Nagappa, AIR 1954 SC 440. 228. Tilok Chand v. H.B. Munshi, AIR 1970 SC 898. 229. Upendra Baksi, Laches & Right to Constitutional Remedies in Alice Jacob. to ordinary suits and its purpose is to give finality to transactions. It is premised on the principle that no one should sleep over his rights and no one should be kept in uncertainty about his legal position indefinitely. Although the law of limitation is not applicable to the writ jurisdiction, the courts have held that one must come to the court for the enforcement of his right within a reasonable period. The question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under articles 226 or 32 of the constitution. If public property is dissipated, it would require a strong argument to convince the court that representative segments of the public or atleast a section of public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations. It was issued where the petitioner alleged that there had been violation of Human Rights and the CBI should be asked to investigate it, where failure of government hospitals to provide timely emergency medical treatment to persons in need resulted in violation of their right to life230, on petitions against the management of hospitals for mental diseases 231, on petitions seeking enforcement of measures to ensure public health and safety against municipal corporation232, on petition against non-functioning of medical equipment in

government hospitals,233 or an petition against mosquito menace, which jeopardized the right to life.234 A 230. P.B. Khet Mazdoor Samity v. State of W.B., AIR 1996 SC 2426. 231. S.R. Kapoor v. India, AIR 1990 SC 752. 232. K.C. Malhotra v. M.P., AIR 1994 M.P. 48. 233. PUCL, Delhi v. India, AIR 1997 Del 395. 234. India v. S.J. Pandit, AIR 1997 Ker 152.

petition impugning a provision in the jail manual providing that the body of a hanged convict be kept suspended for half an hour after death, on the ground that it violated the right to dignity included in right to personal liberty, 235 were responded to writ suitable mandamus and other orders. The court responded in Sunil Batra v. Delhi Administration.236 to a letter written by Sunil Batra, a person inmate drawing its attention to the miserable lot of a fellow prisoner who was being subjected to unbearable physical torture by the prison authorities. The prisoner had scribbled the letter on a piece of paper and managed to have it sent to justice Krishna Iyer, a judge of Supreme Court. The learned judge responded to that letter and from that response emerged the first judicial discourse on prisoners right. Justice Bhagwati while dealing with a petition filed by advocate Kapila Hingorani regarding inordinately long periods of under trial detention suffered by some accused criminals obtained information about a large number of people who suffered from such detention, which sometimes far exceeded the longest period of imprisonment prescribed as punishment for the offence they were charged with. He took up the issue and held in Hussainara Khatoon v. State of Bihar237 that the right to a speedy trial was part of the right to be

governed by procedure established by law guaranteed by article 21 of the Constitution and directed courts and governments on how trial should be speeded up. Since then several letters were written to individual judge, who took cognizance and inquired into the matter. Since such letter writers rarely possessed the lawyers expertise, the facts they mentioned needed to be verified. This could be done by appointing commissioners who investigated the facts on the behalf of letter writer and submitted their

235. Parmanand Katara v. Union of India, (1995) 3 SCC 278. 236. AIR 1978 SC 1675. 237. AIR 1979 SC 1360.

report to the court. Such innovations in procedures were justified by justice Bhagwati in Bandhua Mukti Morcha v. India238. The learned judge justified the liberal rule of standing that the court was articulating. The learned judge said: There is no limitation in the words of article 32 (1) that the fundamental rights which is sought to be enforced by moving Supreme Court should be one belonging to the person who moves the Supreme Court nor it say that the Supreme Court should be moved only by a particular kind of proceeding. The court would not intervene at the instance of a meddlesome interloper or busy body and would ordinarily insist that only a person whose fundamental rights are violated should be allowed to activise the court.

238. AIR 1984 SC 802.