Judicial Remedies against Administrative Arbitrariness: the Writs
Chapter Thirty-Two
Syllabus topic 3.2, "Judicial Remedies against administrative Arbitrariness"
Pages 189 to 197 of 396
In one line
The writs are the five orders a High Court or the Supreme Court can make to keep the administration inside the law: release the person, do your duty, quash the order, stop the proceeding, and prove your title to the office.
In the words a student can write in an exam: the judicial remedies against administrative arbitrariness in India are the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto, issued by the Supreme Court under Article 32 and by the High Courts under Article 226, together with the supervisory jurisdiction of the High Courts over courts and tribunals under Article 227 and the discretionary appellate jurisdiction of the Supreme Court under Article 136; the ordinary remedies of a declaration, an injunction and a suit for damages remain available in addition.
The two Articles, and why the difference matters
| Article 32 | Article 226 | |
|---|---|---|
| Court | Supreme Court | High Courts |
| Purpose | Enforcement of fundamental rights only | Fundamental rights and for any other purpose |
| Status | Itself a fundamental right | A constitutional right, not a fundamental right |
| Territorial reach | The whole of India | Territories within the High Court's jurisdiction, and where the cause of action arises wholly or in part |
| Can it be suspended | Only under Article 359, in an emergency | Not by that route |
| Discretion to refuse | Yes, but narrower | Yes, on the usual discretionary grounds |
The words "for any other purpose" in Article 226 are the most important five words in Indian administrative law. They mean a High Court can issue a writ for the breach of an ordinary legal right, not only a fundamental right, which is why almost all administrative law litigation in India is under Article 226 and not Article 32.
Article 32 is itself a fundamental right, which no other constitution guarantees in the same way, and it is part of the basic structure, as is Article 226: L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, holds that the jurisdiction conferred on the High Courts under Articles 226 and 227 and on the Supreme Court under Article 32 is part of the inviolable basic structure and cannot be excluded.
Against whom does a writ lie
Against the State as defined in Article 12, and against any person or authority discharging a public function.
Whether a body is State under Article 12 is therefore the gateway question, and it is answered by the instrumentality test.
Facts. Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, concerned admissions to the Jammu and Kashmir Regional Engineering College, Srinagar, which was run by a society registered under the Jammu and Kashmir Registration of Societies Act 1898. The preliminary question was whether that society was a State within Article 12.
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