Judicial Remedies against Administrative Arbitrariness: the Writs

Held. The petitions failed on the merits, but the college was held to be a State within Article 12. The society's composition was dominated by representatives appointed by the Central Government and by the Governments of Jammu and Kashmir, Punjab, Rajasthan and Uttar Pradesh with the approval of the Central Government; the money to run the college came entirely from the Central and State Governments and other money could be received only with their approval; the rules made by the society required prior government approval; the accounts had to be submitted to both Governments; and the society had to comply with directions issued by the State Government with the Central Government's approval.

Why it matters here. A body's corporate form does not shield it. If it is financially, functionally and administratively dominated by government, a writ lies against it. The point is developed in [Liability of and Control over Public Corporations].

The five writs

1. Habeas corpus

Meaning. Latin for "you may have the body". An order to the person detaining another to produce him before the court and justify the detention.

When it lies. Where a person is detained without legal authority, or where the detention, though under a law, does not comply with it.

Against whom. Any person, public or private. It is the one writ that lies against a private individual, for example a person unlawfully confining a spouse or child.

Who may apply. The detenu, or anybody on his behalf. The rules of standing are at their most relaxed here for obvious reasons.

Timing. The legality of the detention is judged as at the date of the return to the writ, not the date of the application.

Its suspension during the Emergency, and what the courts made of it, is the subject of [Rule of Law], where the case is worked in full.

2. Mandamus

Meaning. Latin for "we command". An order commanding a public authority to perform a public duty it has refused or failed to perform.

When it lies. Where the applicant has a legal right to the performance of a public duty; where he has demanded performance and been refused; and where the duty is public rather than contractual or private.

When it does not lie.

• Where the duty is discretionary and the authority has lawfully exercised its discretion, though mandamus will lie to compel it to exercise the discretion: [Grounds of Judicial Review: Failure to Exercise Discretion].
• To enforce a private contract.
• Against the President or a Governor personally, by reason of Article 361.
• To direct the legislature to make a law, which is the point decided in Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.

Mandamus is the writ for inaction. Certiorari is the writ for a bad decision; mandamus is the writ for no decision.

3. Certiorari

Meaning. Latin for "to be certified". An order calling up the record of an inferior court, tribunal or authority and quashing its decision.

When it lies. After a decision has been made, on the grounds of: want or excess of jurisdiction; a jurisdictional error; violation of natural justice; an error of law apparent on the face of the record; and fraud.

Against whom. A body having legal authority to determine questions affecting the rights of subjects and under a duty to act judicially, which is the test in Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222.

Facts. Section 3 of the Bombay Land Requisition Ordinance 1947 allowed the Provincial Government, if in its opinion it was necessary or expedient, to requisition land for a public purpose. The first respondent, a refugee from Sind, took an assignment of tenancy rights in a Bombay flat and went into possession; days later the Government requisitioned the flat, allotted it to another refugee and directed an Inspector to take possession. The Bombay High Court issued certiorari against the Province and a Division Bench confirmed it.

Held. By the Full Court, certiorari lies whenever a body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, acts in excess of its legal authority; it does not lie to remove or adjudicate upon an order which is of an administrative or ministerial nature. By the majority of four to two, the Government's decision that the property was required for a public purpose was administrative and not judicial or quasi-judicial, so the High Court had no jurisdiction to issue certiorari. Kania CJ said the true test is whether the law under which the authority decides itself requires a judicial approach, and that a lis, or a right to examine and cross-examine, is not necessary; Fazl Ali J said the mere fact that an executive authority has to decide something does not make the decision judicial, and the real test is whether there is a duty to decide judicially.

Why it matters here. It states both the scope of certiorari and its old limit. That limit has since softened: after A.K. Kraipak v. Union of India, AIR 1970 SC 150, and Maneka Gandhi v. Union of India, AIR 1978 SC 597, the duty to act fairly attaches to administrative action too, so the question today is less whether the act was quasi-judicial and more whether a legal right has been affected by an unlawful decision.

4. Prohibition

Meaning. An order forbidding an inferior court, tribunal or authority from proceeding in a matter beyond its jurisdiction.

The difference from certiorari is timing, and it is the most commonly examined distinction in this chapter. Prohibition is preventive and issues while the proceeding is pending; certiorari is corrective and issues after the decision. Where the proceeding is part heard, both may issue: prohibition to stop the rest, certiorari to quash what has been done.

5. Quo warranto

Meaning. Latin for "by what authority". An order calling on a person holding a public office to show by what authority he holds it.

When it lies. Where the office is a public office created by statute or by the Constitution, of a substantive character, and the holder is not qualified to hold it under the law.

Who may apply. Any member of the public. Standing is at its widest here, because the applicant need show no personal interest; the wrong is to the public.

When it does not lie. In respect of a private office, or the office of a minister in the ordinary case, or where the appointment is merely irregular rather than contrary to law.

The writs in one table

Article 227 and Article 136

Article 227 gives every High Court superintendence over all courts and tribunals within its territories. It is wider than certiorari in one way, since it can be exercised on the court's own motion and can be used to correct grave errors, and narrower in another, since it does not extend to purely administrative bodies. It is the provision under which a tribunal's decision goes to a Division Bench of the High Court after L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.

Article 136 gives the Supreme Court discretion to grant special leave to appeal from any judgment, decree, determination, sentence or order of any court or tribunal in India, except a court martial. It is an extraordinary jurisdiction, exercised sparingly.

The ordinary remedies, and the injunction

The writs are not the only relief. Three ordinary remedies run alongside them and are asked about directly.

A declaration is a judgment stating what the legal position is, without ordering anybody to do anything. It is useful where the citizen needs the law settled rather than an act compelled.

Damages in an ordinary suit, on the principles in [Tortious Liability of the State].

An injunction is an order of a civil court directing a party to do or to refrain from doing something. Its kinds should be known.

Two limits matter in administrative law. An injunction is a discretionary equitable remedy, so it is refused where damages are an adequate remedy or where the claimant has delayed. And an injunction ordinarily does not issue to restrain a public authority from performing a statutory duty, because the duty is owed to the public.

The practical difference from a writ: an injunction is sought in a civil suit against a party, while a writ is sought under Article 226 or Article 32 against the State or a body performing a public function. Prohibition and a prohibitory injunction both forbid, and are often confused: prohibition restrains a body from exceeding its jurisdiction and issues from a High Court in its writ jurisdiction, while an injunction restrains a party from doing a wrongful act and issues from a civil court.

The limits on the remedies

An answer that lists the writs without the limits is incomplete, because half of practice is about them.

1. Alternative remedy. Where the statute provides an appeal, a writ petition is ordinarily not entertained, though this is a rule of discretion and not of jurisdiction, and it yields where the alternative remedy is not efficacious, where fundamental rights are violated, where the order is without jurisdiction, or where natural justice has been breached.
2. Delay and laches. Writ relief is discretionary and is refused to a person who has slept on his rights.

Delay and laches are not the same thing, and the difference is asked directly. Delay is simply the lapse of time between the impugned action and the petition. Laches is delay plus something that makes it unjust to grant relief: that the petitioner knew of his right and did not assert it, that the other side or third parties have altered their position on the faith of the order, or that intervening rights have accrued. So delay is a fact and laches is a conclusion drawn from it. There is no period of limitation prescribed for a writ petition, which is why the question is never "is it time barred?" but "has the petitioner explained the delay, and has anything happened in the meantime that makes it unfair to disturb the order now?" A petition filed eight years after the action will ordinarily be refused for laches unless the delay is explained and no rights have intervened.

1. Conduct of the petitioner. Suppression of facts, or unclean hands, defeats the petition.

Dismissal in limine is worth defining here because it is asked as a two mark question. In limine is Latin for "at the threshold". A petition dismissed in limine is one thrown out at the first hearing, without notice to the other side and without a full hearing on the merits, because it discloses no arguable case or is barred by delay, an alternative remedy or the petitioner's own conduct. A dismissal in limine by a reasoned order decides the point; a dismissal in limine without reasons is generally treated as not deciding the merits, so it does not bar a fresh petition on the same cause in the same way a decision on the merits would.

1. No disputed questions of fact. A writ court does not ordinarily decide contested facts requiring evidence.
2. Standing. Traditionally the petitioner must be an aggrieved person, though this is relaxed for habeas corpus, for quo warranto and in public interest litigation.

Res judicata applies to writ petitions, and this too has been asked directly. Res judicata is Latin for "a matter already judged": once a court has finally decided a matter between the same parties, neither may raise it again. A petition under Article 226 decided on the merits therefore bars a second petition on the same cause between the same parties, and constructive res judicata bars a ground which might and ought to have been raised in the first petition but was not. Two qualifications: the bar does not apply where the earlier petition was dismissed in limine without a reasoned order, since nothing was decided; and it is applied with more caution to a petition for habeas corpus, where personal liberty is at stake.

1. The merits are not for the court. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.

A worked example

Nikhil Jadhav is a clerk in a municipal corporation. Match each grievance with its remedy.

1. He is detained by the police without any order of remand. Habeas corpus.
2. The Corporation has not paid his provident fund dues although the statute requires payment, and he has demanded them in writing. Mandamus.
3. A departmental inquiry officer dismisses him without disclosing the inspector's report. Certiorari to quash, for breach of natural justice.
4. A second inquiry is begun into the same charge before a body that has no power under the rules to inquire into it. Prohibition, to stop it, and certiorari if it has already decided.
5. The person appointed Commissioner does not hold the qualification the statute prescribes. Quo warranto, which any member of the public may seek.
6. The Corporation has broken an ordinary contract to supply him stationery for his private business. No writ. That is a private contractual claim for a civil suit.
7. A tribunal has decided his service dispute against him. A writ petition to a Division Bench of the High Court, following L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.

What it does NOT mean

It does not mean the writs are confined to their English technical forms. Articles 32 and 226 empower the courts to issue directions and orders "in the nature of" the writs, so Indian courts are not bound by the technicalities that grew up around them in England.

It does not mean a writ lies against everybody. It lies against the State under Article 12 and against bodies performing public functions, with habeas corpus the exception.

It does not mean an alternative remedy is an absolute bar. It is a rule of discretion with recognised exceptions.

It does not mean the court decides the matter itself. The usual order is to quash and remit.

Quick revision

1. Article 32: Supreme Court, fundamental rights only, itself a fundamental right. Article 226: High Courts, fundamental rights and for any other purpose. Both are part of the basic structure: L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
2. Habeas corpus: produce the body; lies against private persons too; anybody may apply.
3. Mandamus: to compel performance of a public duty after demand and refusal; not for a private contract, not against the President or a Governor personally, and not to direct the legislature to legislate.
4. Certiorari: to quash, after decision, for want or excess of jurisdiction, breach of natural justice, error of law apparent on the record, or fraud. The duty to act judicially test is in Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222, softened by A.K. Kraipak v. Union of India, AIR 1970 SC 150.
5. Prohibition: preventive, before decision. Certiorari is corrective, after it.
6. Quo warranto: to test the title to a substantive public office; any member of the public may apply.
7. Article 227 superintendence over courts and tribunals; Article 136 special leave.
8. Limits: alternative remedy, delay, conduct, disputed facts, standing, and the rule that the merits belong to the authority.
9. Against whom: the State under Article 12, tested by the instrumentality approach in Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487.

Test yourself

1. Describe the writs available against administrative action in India. Habeas corpus, an order to produce a detained person and justify the detention, which lies against public and private persons alike and may be sought by anybody on the detenu's behalf. Mandamus, an order commanding the performance of a public duty, available where the applicant has a legal right to performance and has demanded it and been refused, but not to enforce a private contract, not against the President or a Governor personally by reason of Article 361, and not to direct the legislature to legislate. Certiorari, an order quashing a decision already made, for want or excess of jurisdiction, breach of natural justice, error of law apparent on the face of the record, or fraud. Prohibition, an order forbidding a body from proceeding beyond its jurisdiction, which issues while the proceeding is pending. And quo warranto, an order calling on the holder of a substantive public office to show by what authority he holds it, which any member of the public may seek.

2. Distinguish certiorari from prohibition. Both are directed at a body exercising judicial or quasi-judicial functions which is exceeding its jurisdiction or acting unlawfully, and the essential distinction is one of timing. Prohibition is preventive and issues while the proceeding is still pending, to stop the body from going further. Certiorari is corrective and issues after the decision has been made, to bring up the record and quash it. Where a proceeding is part heard, both may issue together: prohibition to prevent the remainder and certiorari to quash what has already been done.

3. Compare Article 32 with Article 226. Article 32 empowers the Supreme Court to issue writs for the enforcement of fundamental rights only, and it is itself a fundamental right, so the Court cannot refuse to entertain a petition alleging violation of a fundamental right on the ground of an alternative remedy as readily as a High Court may. Article 226 empowers the High Courts to issue writs both for the enforcement of fundamental rights and "for any other purpose", which extends to the breach of an ordinary legal right, and it is exercisable within the High Court's territories and where the cause of action arises wholly or in part. Because of those five words most administrative law litigation proceeds under Article 226. Both jurisdictions were held in L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, to be part of the inviolable basic structure and incapable of exclusion.

4. When will a writ of mandamus not be issued? Where there is no public duty, as in the enforcement of a purely private or contractual obligation; where the applicant has no legal right to the performance of the duty; where there has been no demand for performance and refusal; where the duty is discretionary and the authority has lawfully exercised its discretion, although mandamus will lie to compel the authority to exercise a discretion it has failed to exercise; against the President or the Governor personally, by reason of Article 361; and to direct the legislature to enact a law, which Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds a court may not do. It may also be refused on the discretionary grounds of delay, suppression of facts or the existence of an efficacious alternative remedy.

5. Against which bodies do the writs lie? Against the State as defined in Article 12, which includes the Government and Parliament of India, the Government and legislature of a State, all local authorities and other authorities within the territory of India or under the control of the Government of India, and against other bodies discharging public functions. Whether a corporation or society is an authority within Article 12 is determined by the instrumentality approach applied in Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, where a society running an engineering college was held to be a State because its composition was dominated by government nominees, its funds came entirely from government, its rules required government approval, its accounts were submitted to government and it was bound to comply with government directions. Habeas corpus is the exception, since it lies against a private person as well.