The Writ of Quo Warranto
Chapter Forty
Syllabus topic 3, "Jurisdiction"
Pages 121 to 123 of 430
In one line
Quo warranto asks a man holding a public office one question: by what authority do you hold it?
In the wording a student can write in an exam: quo warranto, meaning by what authority, is a writ calling upon the holder of a public office to show the court under what authority he holds it, and where the holder is found not to be entitled the court declares the office vacant and restrains him from acting; the office must be public, of a substantive character, and created by statute or by the Constitution.
Why the law has this at all
Because an office held without title is a continuing wrong to the public, and the ordinary law offers no way to raise it. A private person suffers no special injury when an unqualified man is appointed a Reader in English, so no ordinary suit lies. Quo warranto exists because the public has an interest in public offices being lawfully filled.
The conditions
The office must be public. Created by the Constitution or by a statute, and concerned with the affairs of the public. An office in a private company or a private club is outside the writ.
It must be substantive. A permanent office, independent in character, not merely the function of an agent or a servant who holds at the pleasure of another.
The holder must be in possession of it. The writ does not lie in respect of an appointment that has not been made or has already ended.
The appointment must be contrary to law. Want of the prescribed qualification, a defect in the constitution of the appointing body, or a bar in the statute.
Who may apply
Anybody. This is the one writ where the standing rule is at its widest, because the wrong is to the public and the applicant need not show a personal injury or an interest in the office. He must, however, be acting bona fide and not from a private grudge, and the court has a discretion to refuse a stale or motivated petition.
The limit: the court does not sit in appeal on merit
University of Mysore v. C.D. Govinda Rao, AIR 1965 SC 491.
Facts. Mysore University advertised posts of Professor and Reader, prescribing for a Reader a first or high second class Master's degree, a research degree of doctorate standard or published work of a high standard, and five years of post-graduate teaching. A Board of Appointment selected a candidate as Reader in English. An unsuccessful candidate sought quo warranto calling upon him to show by what authority he held the post, and a mandamus.
Held. The writ calls on the holder of a public office to show the court by what authority he holds it, and its object is to prevent a person from holding an office he is not legally entitled to. The court examines whether the office is public and of a substantive character, created by statute or by the Constitution, and whether the holder was appointed in accordance with the law. But where an expert Board has assessed the fitness of a candidate against the prescribed qualifications, the High Court under Article 226 will not sit in appeal on that assessment.
The Writ of Quo Warranto
Why it matters here. It states the object of the writ and, in the same breath, the boundary: the court asks whether the qualification prescribed was possessed, not whether the better candidate was chosen.
What follows a successful writ
The court declares that the holder is not entitled to the office and restrains him from acting in it. It does not appoint the petitioner, and it does not itself fill the vacancy. Acts already done by the holder are not automatically void, because the de facto doctrine protects third parties who dealt with an officer apparently in office.
A worked example
A State appoints as Chairman of a statutory commission a retired officer aged sixty-eight, although the Act provides that no person above sixty-five shall be appointed. A citizen with no connection to the commission files a petition.
Quo warranto lies. The office is public, created by statute, substantive and presently held; the appointment is contrary to an express statutory bar; and the petitioner's want of personal interest is no objection. The court will declare the office vacant. Suppose instead the complaint were that a better qualified person was available. That is Govinda Rao and it fails, because comparative merit is for the appointing body.
Distinctions that carry marks
| Quo warranto | Certiorari | |
|---|---|---|
| Target | The person holding the office | The decision on the record |
| Standing | Any member of the public | Ordinarily a person aggrieved |
| Question | Is his title to the office good? | Was the decision lawfully made? |
| Effect | Ouster from the office | Quashing of the order |
What quo warranto is NOT
It is not available for a private office.
It is not available against a person who has ceased to hold the office.
It is not a means of testing the wisdom of an appointment. Govinda Rao.
It is not available where the appointment is merely irregular and the irregularity does not go to the eligibility of the holder.
Quick revision
By what authority. Conditions: a public office, substantive in character, created by statute or the Constitution, presently held, and an appointment contrary to law. Any member of the public may apply, acting bona fide. Govinda Rao states the object and the limit: the court checks the prescribed qualification, not comparative merit. Success means a declaration that the office is vacant and an injunction against acting, with the de facto doctrine protecting past acts.
The Writ of Quo Warranto
Test yourself
1. Why is the standing rule so wide for quo warranto? Because the wrong is to the public rather than to any individual, so a petitioner need not show a personal injury; he must only be acting bona fide.
2. What does the court NOT examine? The comparative merit of the candidates or the wisdom of the choice, where an expert body has assessed fitness against the prescribed qualifications: Govinda Rao.
3. Are the acts of an ousted officer void? Not automatically. The de facto doctrine protects acts done by a person apparently in office so far as third parties are concerned.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.