The Writ Remedy in Practice: How a Petition Is Actually Brought
Chapter Ninety-Six
Syllabus topic 6, "Remedies"
Pages 288 to 290 of 430
In one line
A writ petition is a document, a set of parties, an interim application and a final order, and knowing what each of them looks like is what MU means by the role of writs in the administrative process.
In the wording a student can write in an exam: a writ petition under Article 226 is presented by a person aggrieved or, in a public interest matter, by a person acting bona fide; it names the authority whose act is challenged and the persons who would be affected by the relief; it is supported by an affidavit and the documents relied on; it is heard on affidavits without oral evidence; and it is disposed of by an order which ordinarily quashes and remits rather than substituting the court's own decision.
MU's question
The University sets "Role of writs in administrative process" as a lettered short note on the most recent paper. A candidate who writes only about the five writs answers half of it; the other half is what a writ petition actually does to an administration, which is this chapter.
The document
The cause title. The petitioner, and the respondents. The State or the Union is ordinarily a respondent where a government department is involved, because the department is not a legal person.
The prayer. In Indian practice the prayer asks for a writ, order or direction in the nature of certiorari, mandamus or whichever is appropriate, and adds a general prayer, because Articles 32(2) and 226(1) allow the court to give whatever relief is appropriate.
The grounds. Set out as separate grounds, which is where the Module II vocabulary is used.
The affidavit. A writ petition is proved by affidavit, and this is why disputed questions of fact are a difficulty, as [Disputed Questions of Fact] explains.
The annexures. The impugned order, the notice, the reply, the rules, the correspondence.
Who must be joined
The authority whose act is challenged.
Anybody who will be affected if the petition succeeds. A candidate challenging a selection must join the selected candidates, or the petition is bad for non-joinder of necessary parties, because an order cannot be made against a person who has not been heard.
Not every person with an interest. Where the affected persons are very numerous, a representative respondent may be permitted.
Interim relief
Most of the practical value of the jurisdiction is here. A stay of the impugned order, an interim direction, or a direction preserving the position pending the hearing.
Article 226(3) is the only place in the Constitution regulating this: where an interim order is made against a party without furnishing him copies of the petition and the supporting documents and without an opportunity of being heard, and he applies for its vacation and serves a copy of the application, the High Court must dispose of the application within two weeks of receipt or service, whichever is later, and if it does not, the interim order stands vacated.
The Writ Remedy in Practice: How a Petition Is Actually Brought
What the court does at the end
Quashes the impugned order. The commonest relief.
Remits the matter. With a direction to decide afresh according to law, usually after a hearing.
Directs a positive act. Where the duty admits of no choice, on the reasoning of Comptroller and Auditor General of India v. K.S. Jagannathan, AIR 1987 SC 537.
Declares. A rule or an order ultra vires.
Awards compensation, in the narrow public law class of Rudul Sah v. State of Bihar, AIR 1983 SC 1086.
Refuses relief on a discretionary ground, which is Module IV.
What it does not do. Substitute its own decision on the merits, retry the facts, or run the department, which is Tata Cellular v. Union of India, AIR 1996 SC 11, and Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.
The effect on the administration
A quashing does not always end the matter. The authority may decide again, lawfully, and reach the same result.
A direction to decide within a time is common and is often the practical relief a citizen actually wants.
Costs are rare against the State, which reduces the deterrent effect, and exemplary costs are reserved for abuse.
Compliance is enforced by contempt, which is [Enforcing the Order: Contempt of Court].
A worked example
A candidate is not called for interview for a State post although she meets the advertised qualification. Twelve others have been called and the interviews are next week.
The petition names the State, the recruiting board and, as respondents, the twelve candidates, because they will be affected. It annexes the advertisement, her application, the rejection and the rules. It asks for a writ of certiorari quashing the rejection, a mandamus directing the board to call her, and an interim order permitting her to appear provisionally. The court's likely order is exactly that interim relief, and at the final hearing a direction to consider her candidature and to declare the result subject to the outcome. Notice what the court does not do: it does not decide whether she is the best candidate.
What this does NOT mean
It does not mean a petition must use the right writ's name. The court may issue whichever is appropriate.
It does not mean interim relief is easy. It is discretionary, and Article 226(3) exists precisely because it was thought to be too easy.
It does not mean a successful petitioner gets the benefit. He usually gets a lawful decision.
The Writ Remedy in Practice: How a Petition Is Actually Brought
Quick revision
The petition names the authority and everybody who will be affected, annexes the impugned order and the material, and is proved by affidavit without oral evidence. Interim relief is the practical heart of the jurisdiction, and Article 226(3) makes an ex parte interim order fall if a vacation application is not decided in two weeks. Final relief is ordinarily quashing and remitting, sometimes a positive direction on Jagannathan, sometimes a declaration, rarely compensation on Rudul Sah. The court does not substitute its own decision, retry facts or administer.
Test yourself
1. Why must the selected candidates be joined in a challenge to a selection? Because they will be affected by the relief, and an order cannot be made against a person who has not been heard, so the petition would otherwise be bad for non-joinder of necessary parties.
2. What does Article 226(3) provide? That where an ex parte interim order is made and the affected party applies for its vacation and serves the application, the High Court must decide within two weeks, failing which the interim order stands vacated.
3. What is the usual final relief? Quashing of the impugned order and a direction to decide afresh according to law, rather than a substituted decision by the court.
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.