Role Of Writs In Administrative Law

Writs play an important role in the protection of fundamental rights in Indian

constitution.

Writs guarantee the right to move to Supreme Court in case of infringed right.
The award of compensation as part of the relief that can be awarded to the
aggrieved individual is an essential aspect of these remedies. This stems from
the notion that the state not only has a legal obligation to defend the rights
guaranteed, but also a social need to compensate those who are harmed when
these rights are violated.

The administrative procedure, on the other hand, has expanded dramatically.

This is understandable in a welfare state, which is essentially an
administrative state. So, in my paper, I discuss the concept of Writs, their
history, and their role in administrative action.

Meaning Of Writ:
A Writ is formal written order issued by an administrative or judicial authority
as a constitutional remedy against the violation of fundamental rights of an
individual. Generally, writ is a command by the Supreme Court or the High
Court to act or abstain from doing an act in a certain way.

Generally, writ is a constitutional remedy provided to citizens of India in case of

violation of fundamental rights.

Origin Of Writs:
The idea of writs began in English common law system. In England, writ was
issued by the king and the fee of writ was prescribed it was termed as the
"purchase of writs".
In India writs were introduced by the act with which the establishment of
Supreme Court at Calcutta. As a successor to the Supreme Court, the High
court was also established and was given the power to issue writs by the same
charter.

Writs were known as prerogative remedies in historic period. Originally, six

writs were introduced as prerogative writs. Writs are guaranteed to every
citizen of India by the Indian constitution. The Supreme Court of India has
power to issue writ under Article 32 of the Indian constitution. Whereas, the
High Court of India has the power to issue the order of writ under Article 226
of the Indian constitution.

"There can be no question that the Fundamental Rights, granted to people, are
a key aspect of our Constitution, and the High Court under Article 226 are
obligated to preserve these Fundamental Rights," it was said in Devilal v. STO.
The right to obtain a writ must also be a basic right when a petitioner submits
the case, according to Daryao v. State of U.P. As a result, it is not only an
individual's right to petition the Supreme Court, but it is also the Supreme
Court's obligation and responsibility to preserve basic rights.

Scope Of Article 32 And Article 226:

Article 32:
Article 32 of the Indian constitution comes under part III. Dr. Bhim Rao
Ambedkar called Article 32 as the heart and soul of the Indian constitution.
Article 32(1)of the Indian constitution states that every citizen of India has a
right to move to the Supreme Court with appropriate proceedings for the
enforcement of one's right. Article 32 (2) of the Indian constitution states that
the Supreme Court has the power to issue orders or writs including the writs of
nature of Habeas Corpus, mandamus, writ of prohibition, quo warranto, writ of
certiorari for the enforcement of any right conferred. Article 32 (3) of the Indian
constitution states that the parliament may by law empower other court to
exercise within local limits of its jurisdiction. Article 32 (4) of the Indian
constitution states that the right guaranteed by Article 32 shall not be
suspended unless and until provided by the constitution.

Article 226:
Article 226 of the Indian constitution states that the High Court has the power
to issue certain writs or orders including the writs in the nature of Habeas
Corpus, mandamus, writ of prohibition, quo warranto, writ of certiorari. Article
226 talks about the interim order under sub clause 3.

Difference between Article 32 and Article 226:

Article 32 Article 226

Article 32 gives power to the Supreme Article 226 gives power to the High
Court
Article 32 is invoked only for the
enforcement of fundamental rights
Article 32 is a fundamental right.
Court.
Article 226 is invoked for the
enforcement of both fundamental rights
as well as legal rights.
Article 226 is not the fundamental
right.

Types Of Writs:
Courts can issue five types of writs according to the constitution of India. They
are:
1. Habeas Corpus:
Habeas Corpus is a Latin term which means "to have the body". The writ
of Habeas Corpus is the most effective remedy against an illegal

detention. This writ plays an important role in protecting the personal

liberty of an individual. The writ of Habeas corpus protects a person who
has been illegally detained without lawful justification by the person who
has arrested.

The writ does not apply where a person is lawfully detained as an

accused.

Illustration:
A person named Sumit is arrested by a police officer. Sumit then writes
to High court that he had been illegally detained. The concerned High
court sends summons to the police officer to state the valid grounds of
Sumit's arrest. If the police officer fails to do so, Sumit shall set to be
free. Habeas Corpus safeguards Article 21[10] of the Indian constitution
which is regarding the right to life and personal liberty.

Grounds:

i. The applicant must be in custody

ii. The relatives of detained person can also file this[11] writ. Also,
any third person can file as public interest litigation.it can be
either formal or informal
iii. It can be in the form of letter by co-convict. In the case of Sunil
Batra V. Delhi administration[12], the writ of habeas corpus was
issued on the grounds of letter by his co convict where it was
mentioned about the inhuman treatment by the prisoners.
iv. This writ will apply when the formalities of arrest which are to be
followed not followed by the police officer. Example: under section
56 of the CrPc the arrested person is to be produced before the
magistrate within 24 hours. If the police officer, fail to do so the
writ of habeas corpus can be filed and issued.

In the case of Rajakannu Vs. State of Tamil Nadu and Ors, The
Habeas Corpus petition was submitted by R. Parvathy,
Rajakannu's wife. They were farm labourers on a daily pay with
four children. The 4th Respondent Police reportedly beat R.
Parvathy, her two kids, and her brother-in-law at the police station
on March 20, 1993.

On March 21, 1993, Rajakannu was arrested and the others were
freed. On March 22, 1993, the Petitioner's wife witnessed her
husband being severely assaulted while chained to the window
 bars. She was also banged up after questioning the same. A
homoeopathic doctor was summoned to treat them after they
incurred wounds and their health deteriorated as a result. They
were beaten up again after the doctor departed. The Petitioner's
wife was later forced to leave from the police station. Later, she was
told that her husband absconded from the station.

2. Mandamus:

Mandamus means "We command". The writ of mandamus can be issued

to inferior courts to act or abstain from doing an act.
The writ of mandamus can be issued to corporation, tribunal board or
any administrative authority.
It is important to note that the writ of mandamus cannot be issued to a
private person. It is specified that the writ of mandamus shall be issued
only to the public office.

Illustration: '

A' is a public servant. He omits his duties with which 'B' suffers. 'B' can
file an application for the writ of mandamus against the public office in
which 'A' works.

Grounds:

i. The right of the petitioner must be infringed.

ii. There must be no effective remedy.
In the case of Vijaya Mehta V. State of Rajasthan[13], the
petition was filed to appoint the commission to look after the
climate change. The court held that as this duty was discretionary
but not mandatory the writ of mandamus cannot be issued.
iii. The public servant must have failed to omit the duty which he is
supposed to do so or mandatory duty.

The courts can refuse to issue the writ of mandamus when:

 The right of the petitioner has been lapsed

 The duty has been already fulfilled by the concerned
authority.

3. Certiorari:

The writ of certiorari is a different kind of writ as compared to other

writs. The writ of certiorari is corrective in nature.
 The writ of certiorari can be issued by superior courts to inferior courts
when there is violation of natural principles of justice or fundamental
rights. This writ can be issued to correct errors in apparent records of
inferior courts.

Conditions:

i. The body or person has legal authority

ii. The authority is related to determining those questions which
affect the rights of the people.
iii. Such a body or person has a duty to act judicially in doing its
functions.
iv. Such a person or body has acted in excess of their jurisdiction or
legal authority.

4. Prohibition:

The last Writ which can be issued under the Constitution is the Writ of

Prohibition. This Writ is not issued often and is an extraordinary remedy

which a Superior Court issues to an inferior court or tribunal for
stopping them from deciding a case because these courts do not have the
jurisdiction. If the court or tribunals does not have jurisdiction and it
still decides the case, it will be an invalid judgment because for an act to
be legal it should have the sanction of law. For e.g., if a District Court is
hearing an appeal against the judgement of the High Court, such an act
is bound to be prohibited because the District Court does not have the
power to hear such an appeal. So, a Writ of Prohibition will be issued
against such an act of District Court.

Difference between Prohibition and Certiorari-

Both the Writs Certiorari and Prohibition appear to be the same but
there is one major difference between the two. In the Writ of Prohibition,
the superior court issues the writ before the final order is passed by the
inferior court and therefore this is a preventive remedy, while in Writ of
Certiorari the superior court issues the Writ after the inferior court has
made the final order. Thus the Writ of Certiorari is a corrective remedy
by which the order of the inferior court is quashed.

5. Quo Warranto:

The Writ of Quo Warranto is issued by the courts against a private

person when he assumes an office on which he has no right. Quo
Warranto literally means 'by what authority' and it is an effective
 measure to prevent people from taking over public offices.

Illustration: A who is a private citizen and has no qualifications for the

post of sub-inspector assumes such office. Here a Writ of Quo Warranto
can be issued against A to call into question his authority on which he
has taken the control of the office of sub-inspector. The power to issue
this Writ is discretionary on the courts and therefore nobody can
demand that the court is bound to issue this writ.

Conditions for issuing Quo Warranto:

The Writ can be issued only when these conditions are fulfilled:

i. The office which has been wrongfully assumed by the private person is a
public office.
ii. The office was created by the Constitution or by any other statute.
iii. The nature of the duties which arises from this office is public.

This Writ can also be issued in those cases where a person was entitled to hold
the office earlier but after getting disqualified he is still in possession of the
office. Thus in cases where the office is of private nature, this Writ cannot be
issued by the Court. This view was held by the court in the case of Niranjan
Kumar Goenka v. the University of Bihar, Muzzfarpur[14], in which the
court observed that the Writ of Quo Warranto cannot be issued against a
person who is not holding a public office. In the case of Jamalpur Arya Samaj
Sabha v. Dr. D Rama[15], an application for the Writ of Quo Warranto was
made by the petitioner in the Patna High Court against the Working Committee
of Bihar Raj Arya Samaj Pratinidhi Sabha which was a private body. The court
refused to issue the Writ because it was not a public office.

Role Of Writs In Administrative Law:

Administrative law is the field of law that maintains government activities
within the confines of the law, or, to put it another way, it keeps the
enforcement of obviously wrong instructions from becoming disparaging.
Administrative law has clearly established the checks, balances, and allowable
area of an exercise of power, authority, and jurisdiction over administrative
acts carried out by any State, Government agencies, and instrumentalities as
described in Article 12[16] of the Indian Constitution. And, while conducting
judicial review of administrative action, the judiciary is sketching out the
principles and exceptions in real time.

The courts have traditionally sought to defend people's liberty by assuming

powers granted by the Constitution for judicial review of administrative
decisions. It is the nature of justice to limit discretionary powers if they are
exploited or abused. The socio-political instrument does not need to scream if
the courts do their job and play a significant role. That is what justice is all
about. The welfare state must carry out its responsibilities fairly, with no
arbitrary or discriminating treatment of citizens. If such powers are brought to
the courts' attention, the courts have raised their arms in accordance with the
Rule of Law.

The role of writs is also sensibly laid down in a famous Padfield's Case[17]. In
England in earlier days the Courts usually refused to interfere where the
Government or the concerned officer passed what was called a non-speaking
order, that is, an order which on the face of it did not specify the reasons for
the orders.

Where a speaking order was passed the Courts proceeded to consider whether
the reasons given for the order or decision were relevant reasons. Where there
was a non-speaking order they used to say that it was like the face of the
Sphinx in the sense that it was incurable and therefore hold that they could
not consider the question of the validity of the order. Even in England the
Courts have travelled very far since those days. They no longer find the face of
the Sphinx inscrutable.

Conclusion:
The prerogative powers of writ jurisdiction conferred by the constitution for
judicial review of administrative action is undoubtedly discretionary and yet
unbounded in its limits. The discretion however should be exercised on sound
legal principles. In this respect it is important to emphasis that the absence of
arbitrary power is the first essential of the rule of law upon which the whole
constitution system is based. In a system governed by rule of law when
discretion is conferred upon the executive authorities it must be based on
clearly defied limits.