KES’ Shri Jayantilal H.

Patel Law College, Mumbai

REMEDIES OF JUDICIAL REVIEW WITH REFERENCE TO PROHIBITION AND CERTIORARI

ADMINISTRATIVE LAW

A project submitted in partial fulfillment of the requirement for

The Third Semester of L.L.B Course

By

AVANTIKA ANANDKUMAR GAUD

First Year LL. B

Division A

Roll No – 37

Under The Supervision Of

Asst. Prof. Pinny Pathak

30th November, 2023

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 TABLE OF CONTENT

Sr. No. Particular Pg. No.

1 INTRODUCTION 4

2 JUDICIAL REVIEW IN INDIA 5

3 EXTENT OF JUDICIAL REVIEW IN INDIA 8

4 FIVE RESTRICTIONS ON THE RIGHT OF JUDICIAL REVIEW 10

5 REMEDIES IN JUDICIAL REVIEW 12

6 PRIVATE LAW REMEDIES 13

7 PUBLIC LAW REMEDIES 15

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8 20

CASE LAWS REGARDING THE WRIT OF PROHIBITION

9 21
CASES LAW RELATED TO THE WRIT OF CERTIORARI

10 SUGGESTION 23

11 CONCLUSION 24

12 BIBLIOGRAPHY AND WEBLIOGRAPHY 25

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 INTRODUCTION

Literally the notion of judicial review means the revision of the decree or sentence of an inferior court by a
superior court. Judicial review has a more technical significance in pubic law, particularly in countries having a
written constitution which are founded on the concept of limited government. Judicial review in this case means
that Courts of law have the power of testing the validity of legislative as well as other governmental action with
reference to the provisions of the constitution. The doctrine of judicial review has been originated and
developed by the American Supreme Court, although there is no express provision in the American Constitution
for the judicial review. In Marbury v. Madison, the Supreme Court made it clear that it had the power of judicial
review. Chief Justice George Marshall said, “Certainly all those who have framed the written Constitution
contemplate them as forming the fundamental and paramount law of the nations, and consequently, the theory
of every such Government must be that an act of the legislature, repugnant to the Constitution is void”. There is
supremacy of Constitution in U.S.A. and, therefore, in case of conflict between the Constitution and the Acts
passed by the legislature, the Courts follow the Constitution and declare the acts to be unconstitutional and,
therefore, void. The Courts declare void the acts of the legislature and the executive, if they are found in
violation of the provisions of the Constitution.

Judicial Control of an administrative action is one of the organs of administrative law. Judicial Review has
developed by the courts, which have the power of final interpretation of statutory laws, and a concomitant
power to provide judge-made remedies where the statutes are silent. The function of Judicial Review is to act as
‘a check against excess of power in derogation of private right’, yet Judicial Review cannot supervise all
administrative adjudications, for it exists to check, not to supplant them.

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 JUDICIAL REVIEW IN INDIA

The constitution of India, in this respect, is more a kin to the U.S. Constitution than the British. In Britain, the
doctrine of parliamentary supremacy still holds goods. No court of law there can declare a parliamentary
enactment invalid. On the contrary every court is constrained to enforce every provision" of the law of
parliament.

Under the constitution of India parliament is not supreme. Its powers are limited in the two ways. First, there is
the division of powers between the union and the states. Parliament is competent to pass laws only with respect
to those subjects which are guaranteed to the citizens against every form of legislative encroachment.

Being the guardian of Fundamental Rights and the arbiter of constitutional conflicts between the union and the
states with respect to the division of powers between them, the Supreme Court stands in a unique position
where from it is competent to exercise the power of reviewing legislative enactments both of parliament and the
state legislatures.

This is what makes the court a powerful instrument of judicial review under the constitution. As Dr. M.P. Jain
has rightly observed: "The doctrine of judicial review is thus firmly rooted in India, and has the explicit sanction
of the constitution."

In the framework of a constitution which guarantees individual Fundamental Rights, divides power between the
union and the states and clearly defines and delimits the powers and functions of every organ of the state
including the parliament, judiciary plays a very important role under their powers of judicial review.

The power of judicial review of legislation is given to the judiciary both by the political theory and text of the
constitution. There are several specific provisions in the Indian constitution, judicial review of legislation such
as Act 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372.

Article 372 (1) establishes the judicial review of the pre-constitutional legislation similarly. Article 13
specifically declares that any law which contravenes any of the provision of the part of Fundamental Rights
shall be void. Even our Supreme Court has observed, even without the specific provisions in Article 13.

The court would have the power to declare any enactment which transgresses a Fundamental Right as invalid.
The Supreme and high courts are constituted the protector and guarantor of Fundamental Rights under Articles
32 and 226. Articles 251 and 254 say that in case of in consistent if between union and state laws, the state law
shall be void.

Judicial review is a great weapon in the hands of judges. It comprises the power of a court to hold
unconstitutional and unenforceable any law or order based upon such law or any other action by a public
authority which is inconsistent or in conflict with the basic law of the land. In fact, the study of constitutional
law may be described as a study of the doctrine of judicial review in action the courts have power to strike
down any law, if they believe it to be unconstitutional.

The judgment in I.R. Coelho v. the State of Tamil Nadu1 has answered this question by establishing the pre-
eminence of judicial review of each and every part of the Constitution. The Court has laid down a two-fold test:
(a) whether an amendment or a law is violative of any of the Fundamental Rights in Part III (b) if so, whether

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the violation found is destructive of the basic structure of the Constitution. If the court finds that the impugned
enactment damages the basic structure of the Constitution, it shall be declared void, notwithstanding the
fictional immunity given to it by Article 31B.Thus, the basic structure doctrine requires the State to justify the
degree of invasion of Fundamental Rights in every given case; and this is where the court's power of judicial
review comes in.

Under our Constitution, judicial review can conveniently be classified under three heads:

(1) Judicial review of Constitutional amendments.-This has been the subject-matter of consideration in
various cases by the Supreme Court; of them worth mentioning are: Shankari Prasad case , Sajjan Singh case ,
Golak Nath case , Kesavananda Bharati case , Minerva Mills case , Sanjeev Coke case and Indira Gandhi case.
The test of validity of Constitutional amendments is conforming to the basic features of the Constitution.

(2) Judicial review of legislation of Parliament, State Legislatures as well as subordinate legislation.-
Judicial review in this category is in respect of legislative competence and violation of fundamental rights or
any other Constitutional or legislative limitations;

(3) Judicial review of administrative action of the Union of India as well as the State Governments and
authorities falling within the meaning of State. The researcher’s emphasis is in this direction.

It is necessary to distinguish between ‘judicial review’ and ‘judicial control’. The term judicial review has a
restrictive connotation as compared to the term judicial control. Judicial review is ‘supervisory’, rather than
‘corrective’, in nature. Judicial review is denoted by the writ system which functions in India under Arts. 32 and
226 of the Constitution. Judicial control, on the other hand, is a broader term. It denotes a much broader concept
and includes judicial review within itself. Judicial control comprises of all methods through which a person can
seek relief against the Administration through the medium of the courts, such as, appeal, writs, declaration,
injunction, damages statutory remedies against the Administration.

Therefore judicial review is a fundamental principle of law that every power must be exercised within the four
corners of law and within the legal limits. Exercise of administrative power is not an exception to that basic
rule. The doctrines by which those limits are ascertained and enforced form the very marrow of administrative
law. Unfettered discretion cannot exist where the rule of law reigns. Again, all power is capable of abuse, and
that the power to prevent the abuse is the acid test of effective judicial review.

Under the traditional theory, courts of law used to control existence and extend of prerogative power but not the
manner of exercise thereof. That position was, however, considerably modified after the decision in Council of
Civil Service Unions v. Minister for Civil Service, wherein it was emphasized that the reviewability of
discretionary power must depend upon the subject- matter and not upon its source. The extent and degree of
judicial review and justifiable area may vary from case to case.

At the same time, however, the power of judicial review is not unqualified or unlimited. If the courts were to
assume jurisdiction to review administrative acts which are ‘unfair’ in their opinion (on merits), the courts
would assume jurisdiction to do the very thing which is to be done by administration. If judicial review were to
trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk.

It is submitted that the following observations of Frankfurter, I. in Trop v. Dulles, lay down correct legal
position:

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“All power is, in Madison’s Phrase ‘of an encroaching nature’. Judicial Power is not immune against this
human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so
since the only restraint upon it is self-restraint.”

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 EXTENT OF JUDICIAL REVIEW IN INDIA

From 1950 to 1975, the Indian Supreme Court ruled that more than one hundred federal and state case Laws,
constituted unconstitutional. The judiciary in the constitutional system, made a very important position. Indian
Supreme court on a series of allegations of violation of basic human rights under the Constitution of India
conducted a judicial review of cases. The Supreme Court's position is that any attempt to amend the
Constitution related to impact of civil rights legislation or regulations are subject to subject to judicial review.
India has also restricted judicial review of executive and legislative powers to play a role. Judicial review of
legislation from the early review extends to all acts of government or administration. It can be said that in
addition to specific case, the Court exercise their restraint of judicial power, judicial review has almost no
borders.

Judicial review of political issues: In the early practice of judicial review, Supreme Court of India was that if
the case involved political issues, does not apply to judicial review. But then this position has changed slowly,
in Keshavananda Bharathi case, the Court noted that "involves tampering with the Constitution judicial review
of cases may involve political issues, but only the court has the power to judge cases. interpret the Constitution's
powers should be attributed to the State jurisdiction ".The Court's position in the later case in a series of further
specific, as in S. R. Bommai case, the court decision that "The state Governor, the President formed the basis of
his political views may be based on judgments, it is not appropriate for judicial review. If Justice will fall into a
complex political disputes, which the court should be avoided. So , the court can not forbid the President to
exercise the powers conferred on him by the Constitution, unless the evil abuse of power, but the court also
noted that" judicial review although it can not review the President's subjective judgments, but the president
may review the basis on which to make decisions.” From these precedents it can be seen that the Indian courts
in dealing with the basic legal and political position of the judiciary in finding significant matters involving
politics should be careful to play its role of judicial review, and some restraint in handling cases, to avoid use of
judicial jeopardize the constitutional review powers the legislative and executive powers, but the judiciary but
also to minimize the abuse of presidential powers. judicial review and supervision should be ultra vires the right
balance.

The basic principles of judicial review of constitutional status: In 1973, the Supreme Court in the landmark
Keshavananda Bharathi v. State of Kerala case presented the basic principles of judicial review. Legislature can
amend the constitution, but cannot change the basic principles of the Constitution. If the violation of basic
constitutional principles, constitutes unconstitutional is generally believed that the basic principles of the
Constitution of India has the following five basic points: the supremacy of the Constitution, republican and
democratic form of government, secular constitution, legislative, administrative and judicial separation of
powers and federalism. These basic principles are throughout the Preamble to the Constitution of India and the
entire framework of the Constitution. The Constitution is built on the basic principles citizens on the basis of
freedom and dignity, the Indian Constitution, the Law may not deprive citizens of any form of freedom and
dignity. The basic principle of the Constitution is only a matter of principle, not exhaustive revision of the
constitution limits the power of all cases. In the subsequent series of cases, the court of judicial review is further
recognized as one of the basic principles of the Constitution. The Court in some cases held that judicial review
is a constitutional fundamental and essential feature. If the judicial review is absolutely deprived of the

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Constitution had no vitality. The Court further pointed out that if the Supreme Court ruled out legislation enjoy
the constitutional right to judicial review, and with no other alternative mechanisms for judicial review is in
violation of the basic principles of the Constitution, the Congress, the legislation goes beyond the scope of
legislative power. In 1997, L. Chaiadra Kumar V Union of India case, the Constitutional Court more clearly that
"the Constitution and Articles 32 &226 were granted to the Supreme Court and High Court judicial review of
existing legislation is a constitutional right to an integral and essential element judicial review itself constitutes
one of the basic principles of the Constitution. " Indian Supreme Court precedent established by judicial review
the basic principles of the Constitution, this Constitution and the rule of law in India's role can not be ignored,
for enhancing the legislative and executive powers of judicial checks and balances play an important role. But
given the absolute power of judicial review, in fact distorted the balance of power theory, to some extent, led to
the expansion of judicial review and abuse of power.

Judicial activism the expansion of judicial review: After 80 years of the 20th century, public demand for
government administration in strict accordance with the Constitution and laws, hoping to promote
administrative reform through judicial growing louder and louder, the judiciary is also required in response to
the public judicial activism began to take position. In the subsequent case of Menaka Gandhi, the Supreme
Court to promote the implementation of the Constitution in terms of protection of citizens basic human rights,
and to seek India's laws in line with the global trend of legal protection of basic human rights. The court of
human rights protection thanks to a series of successful litigation procedural law reform, as introduced in the
procedural law of social activities on litigation, public interest litigation and other new design of the system, so
that vulnerable groups in society can more easily enter the judicial process. Indian court has also sought,
through judicial interpretation of constitutional provisions to achieve its goals. 80 years in the 20th century and
early 90s, the Indian court would change its traditional law enforcement agencies as a simple nature of many of
its political decision to the Indian society, the enormous social and economic change. While judicial activism
has played an active court supervision of administrative and legislative powers, the role of the effective exercise
of judicial power, to some extent contributed to the improvement of the rule of law in India. But on the other
hand, the Supreme Court's new role of judicial activism also has been criticized, and many Critics accused him
of breach of the principle of separation of powers, especially the Supreme Court administrative action policies
and guidelines established by the widely criticized, is considered by more powers of the executive and
legislative areas. As a result, limit the power of judicial review has become India's new task of constitutional
law.

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 FIVE RESTRICTIONS ON THE RIGHT OF JUDICIAL REVIEW

First, the right to limit judicial review of administrative Justice in order to avoid excessive intervention and
legislation on the Indian courts take the position of judicial activism and judicial review of horizontal
expansion. It has been holding a respected and skeptical attitude toward a mixed complex. They are respected
because judicial review of the creative interpretation of the Constitution can play on the legislative and
executive powers of the strong regulatory role, but at the same time, people have the right to judicial review of
legislation and may be beyond the doubts about the executive power. Second, people think, because of the
judicial review of constitutional issues often involve significant, if not adequately regulate, the subjective
element of judicial review may result in significant social and political consequences.

As pointed out by the Indian Supreme Court Justice Dwivedi, “The complex mixture of political activity and
political values of many of the basic social choice, the court cannot assume this function. The court in the
absence of any clear evidence of constitutional standards and adequate conditions, the basic value of the trade-
off is necessarily subjective of the court's decision and thus inevitably subject to personal preferences of judges.
The judge's subjectivity and thus reduce the legal certainty, and certainty the nature of the rule of law is one of
the elements. In fact, if a little of the Supreme Court in the basic issue of constitutional ruling, the judge can be
found in a number of different basic constitutional issues, such as the constitutional right of Congress, federal
relations, presidential powers such as the above there are different views and opinions.”

Restrictions on judicial review of the content. India's traditional limits on judicial review for constitutional and
procedural law largely limits procedural restrictions on the two main principles: First, the principle of delay
slack (Doctrine of Laches), that is lost due to slack rights, the court will not grant relief, the second is the
principle of res judicata , that the Court's final ruling is made, regardless of the outcome of the verdict, the
parties and the courts are bound to accept the verdict content, the parties shall not in respect of the contents of
judgments re- make the same claim, the court shall not be made in respect of the contents of judgments
conflicting judgments. India, although the court proceedings began against the law other than the Constitution
and for other restrictions on judicial review, but 90 years after the 20th century, social pressure or the
introduction of appropriate doctrine of judicial self-restraint.

In terms of judicial review of the legislative, judicial self-restraint shown by the allegations of a legislation was
unconstitutional, it should still be assumed to be constitutional. That a bill has not been formally ruled
unconstitutional in before it is combined constitution, and the responsibility to prove to the court of its
constitutional commitment, the court shall prove that the bill clearly violates the basic principles of the
Constitution. The court reviewed the constitutionality of the application filed from time to time to adopt a
constitutional interpretation technology, which "is review the constitutionality of provisions of the Act an
interpretation, while the other constitutes an unconstitutional interpretation, the court tends to the former
explanation but sometimes this interpretation also depends on the judge's personal views and values.

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In a judicial review of administrative action, administrative action assumes the constitutionality of the case is
weaker than legislation. But clearly the administration in the Legislative left room for administrative discretion,
the court shall also be taken to judicial restraint doctrine attitude. In other words, the Court of Administrative
Discretion cannot challenge the constitutionality, unless there is abuse of the executive branch or the Chief
Administrative Discretion is not a situation.

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 REMEDIES IN JUDICIAL REVIEW

Definition of Remedy:

According to Black’s Law Dictionary (9th Edition)

“The means of enforcing a right or preventing or redressing a wrong; legal or equitable relief”.

Definition of Judicial Review:

According to Black’s Law Dictionary (9th Edition)

“A court’s power to review the actions of other branches or levels of government….and A court’s review of a
lower courts’ or an administrative body’s factual or legal findings”.

Scope of Judicial Review:

The scope of Judicial Review has often depended on whether a given function is classified as judicial or
administrative in nature. In general, Judicial Review covers not only the actions and decisions of Executive and
administrative bodies but also the decisions made by the judicial tribunals and actions of all other authorities
where the statutory remedy is not available.

Remedies: Mr. Hamid Khan a renowned lawyer divided the remedies provided for redressing the wrongs done
to citizens by the actions of administrators into two categories: -

Private law Remedies:

1. Actions for Damages

2. Injunctions
3. Declarations

Public Law Remedies:

1. Wirt of Prohibition
2. Writ of Certiorari
3. Wirt of Mandamus

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 PRIVATE LAW REMEDIES

1. Damages.
In Britain, damages are available as remedy in Judicial Review in limited circumstances. Compensation
is not available merely because a public authority has acted unlawfully. For damages to be available
there must be either: - (a) A recognized ‘private’ law cause of action such as negligence or breach of
statutory duty or; (b) A claim under European law or the Human Rights Act, 1998.
In Pakistan and India, a distinction is made as a result of historical developments between the local
authorities and the statutory corporations, on the one hand, and the state, on the other for purpose of and
action for damages where the Plaintiff suffered injuries in a road accident owing to the negligence of the
employees of the government in staking baJri, it was held that the stacking of baJri in a negligent
manner for repairs to a highway cannot be said to be a sovereign act and cannot be protected as such.
(Ramiz Ahmad vs. Punjab province PLD 1964 Lahore 736).

2. Injunctions.
An injunction is an order made by the court to stop a public body from acting in an unlawful way. Less
commonly, an injunction can be mandatory, that is, it compels a public body to do something. In modern
English law, however, it is a relatively unimportant method reviewing administrative action. It has never
been available against the crown. The Crown Proceedings Act, 1947, reaffirms this position under
section 21(1). Under recent rulings of the British Courts, the scope of Injunctions has become wider in
English law, therefore, it is available against the crown. (A.V.Home office [1994 1 AC 377]).
In India and Pakistan, remedies of Injunctions have been regulated by the Specific Relief Act, 1877. In
India, this act has been repealed by the Specific Relief Act, 1963 but in Pakistan, in continues to apply.
This act provides for perpetual injunction, mandatory injunction and temporary injunction.
 A perpetual injunction may be granted to prevent the breach of an obligation existing in favour
of the applicant, whether expressly or by implication. (Section 54 of Specific Relief Act, 1877)
 Temporary injunction can be granted at any stage of the suit and are regulated by order 39 of the
Civil Procedure Code, 1908.
 A mandatory injunction can be issued to prevent of certain acts which the court is capable of
enforcing. (Section 55 of Specific Relief Act, 1877)

The plaintiff in suit for injunction, whether perpetual or mandatory, can also claim damages either in
addition to, or in substitution of, such injunction the court may in its discretion, award damages.

3. Declaration.
A declaration is a judgment by the court which clarifies the respective rights and obligations of the
parties to the proceedings, without actually making any order, unlike the other remedies the court is not
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telling the parties to do anything in declaratory judgement. The origin of declaratory action in English
law is said to be equitable. It was originally available in the court of Chancery only where the plaintiff
sought in addition to the declaration of some consequential relief. (Principles of Administrative Law by
Hamid Khan p. 271) Declaratory suits can also be filed against government bodies, local authorities, and
statutory authorities Declaration can be issued by the Courts in matter dealt with by the administrative
authorities where entitlement to any legal character or right is involved. Suits can be filed seeking
declaration that acts or orders of municipal or local authorities are Ultra virus. (PLD 1985 DACCA 47)
The declatory actions are more popular a remedy in English than in Pakistan and India, as a means of
challenging decisions of administrative tribunals. In these countries the debate has been run between the
jurists and the Superior Courts also, that whether declatory suit can be brought outside the four corners
of Section 42 of Specific Relief Act, 1877 or not. Some of the jurists are in opinion that Section 42 is
exhaustive for declatory suits, but on the other hand some of the Jurists say that Section 42 of Specific
Relief Act, 1877 in not exhaustive, therefore the declatory suit can be brought outside the four corners of
Section 42 of Specific Relief Act, 1877.

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 PUBLIC LAW REMEDIES

In English law, the expression ‘prerogative remedies’ refers to the writs of habeas corpus, certiorari,
prohibition, mandamus, and quo warranto. The writ of quo warranto has been abolished and injunctions may
now issue form the Queen’s Bench Division is similar circumstances. In Pakistan and India, such writs, derive
their authority form the constitutional provisions. In Pakistan, apart from departmental appeal on the executive
side, the judicial remedy lies only with the prerogative writs, which the Superior courts are empowered in issue.

Judicial Forum

For public law remedies the forum of Judicial Review in UK the Administrative court, which is specialist court
within the Queen’s Bench Division of the High Court. In Pakistan article 199 of the constitution empowers the
high courts to take action against Administration. Whereas in India, the constitution empowered through article
32 the Supreme Court and 226 the high courts to take Judicial Review against the action of administrative
bodies.

1. Habeas Corpus

‘Habeas Corpus’ literally means “to have a body of”. This writ is used to release a person who has been

unlawfully detained or imprisoned. By virtue of this writ, the Court directs the person so detained to be brought

before it to examine the legality of his detention. If the Court concludes that the detention was unlawful, then it

directs the person to be released immediately. Circumstances of unlawful detention are:

 The detention was not done in accordance with the procedure laid down. For instance, the person was not

produced before a Magistrate within 24 hours of his arrest.

 The person was arrested when he did not violate any law.

 An arrest was made under a law that is unconstitutional.

This writ ensures swift judicial review of the alleged unlawful detention of the prisoner and immediate

determination of his right to freedom. However, Habeas corpus cannot be granted where a person has been

arrested under an order from a competent court and when prima facie the order does not appear to be wholly

illegal or without jurisdiction.

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This writ can be filed by the detained person himself or his relatives or friends on his behalf. It can be issued

against both public authorities and individuals.

In Sunil Batra v. Delhi Administration (1980 AIR 1579) case, an application was made to the Supreme Court

through a letter written by a co-convict on the maltreatment of the prisoners. This letter was taken up by the

Supreme Court and it issued the writ of habeas corpus stating that this writ can not only be used against illegal

arrest of the prisoner but also for his protection against any maltreatment or inhuman behaviour by the detaining

authorities.

In Kanu Sanyal v. District Magistrate Darjeeling & Ors. (1974 AIR 510) case, the Supreme Court held that

rather than focusing on the defined meaning of Habeas Corpus, i.e. produce the body, there should be a focus on
the examination of the legality of the detention by looking at the facts and circumstances of the case. It stated

that this writ is a procedural writ and not a substantive writ. This case dealt with the nature and scope of the writ

of habeas corpus.

2. Mandamus

‘Mandamus’ means ‘we command’. It is issued by the Court to direct a public authority to perform the legal

duties which it has not or refused to perform. It can be issued by the Court against a public official, public

corporation, tribunal, inferior court or the government. It cannot be issued against a private individual or body,

the President or Governors of States or against a working Chief Justices. Further, it cannot be issued in the

following circumstances:

 The duty in question is discretionary and not mandatory.

 For the performance of a non-statutory function.

 Performance of the duty involves rights of purely private nature.

 Where such direction involves violation of any law.

 Where there is any other remedy available under the law.

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The writ of mandamus is issued for keeping the public authorities within their jurisdiction while exercising

public functions. The object of mandamus is the prevention of disorder emanating from failure of justice that is

required to be granted in all cases where there is no specific remedy established in law. It cannot be issued when

the government or public official has no duty to perform under the law.

A writ petition seeking mandamus must be filed by a person in good faith and who has an interest in the

performance of the duty by the public authority. The person seeking mandamus must have a legal right to do so

and also must have demanded the performance of the duty and it is refused by the authority.

In All India Tea Trading Co. v. S.D.O. (AIR 1962 Ass 20) case, the Land Acquisition Officer erroneously

refused to pay the interest on compensation amount. A writ of mandamus was issued against the Land
Acquisition Officer directing him to reconsider the application for the payment of interest.

In Suganmal v. State of M.P. (AIR 1965 SC 1740) case, the petitioner (person who files the writ petition) filed

for issuing a writ of mandamus to direct the respondent (opposite party in the writ) for refunding tax. The

Supreme Court held that where an assessment order was set aside and the rules concerned did not provide for

refund of tax levied, a writ of mandamus cannot be issued. The proper remedy is filing a suit for claiming the

refund.

3. Quo Warranto

‘Quo Warranto’ means ‘by what warrant’. Through this writ, the Court calls upon a person holding a public

office to show under what authority he holds that office. If it is found that the person is not entitled to hold that

office, he may be ousted from it. Its objective is to prevent a person from holding an office he is not entitled to,

therefore preventing usurpation of any public office. It cannot be issued with respect to a private office.

The writ can be issued only when the following conditions are fulfilled:

 The public office is wrongfully assumed by the private person.

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 The office was created by the constitution or law and the person holding the office is not qualified to hold

the office under the constitution or law.

 The term of the public office must be of a permanent nature.

 The nature of duties arising from the office must be public.

In Kumar Padma Padam Prasad v. Union of India (AIR 1992 SC 1213) case, Mr K.N. Srivastava was

appointed as a Judge of the Gauhati High Court by the President of India by a warrant of appointment under his

seal. A petition was filed for issuing a writ of quo-warranto contending that Mr K.N. Srivastava was not

qualified for the office. It was held by the Supreme Court that since Mr K.N. Srivastava was not qualified, quo
warranto could be issued and accordingly the appointment of Mr K.N. Srivastava was quashed.

In the case of Jamalpur Arya Samaj Sabha v. Dr D Rama (AIR 1954 Pat. 297) case, the petitioner filed an

application for issuing the writ of Quo Warranto against the Working Committee of Bihar Raj Arya Samaj

Pratinidhi Sabha, which was a private body. The High Court of Patna refused to issue the writ of Quo Warranto

because it was not a public office.

4. Certiorari

‘Certiorari’ means to ‘certify’. Certiorari is a curative writ. When the Court is of the opinion that a lower court

or a tribunal has passed an order which is beyond its powers or committed an error of law then, through the writ

of certiorari, it may transfer the case to itself or quash the order passed by the lower court or tribunal. A writ of

certiorari is issued by the Supreme Court or High Court to the subordinate courts or tribunal in the following

circumstances:

 When a subordinate court acts without jurisdiction or by assuming jurisdiction where it does not exist, or

 When the subordinate court acts in excess of its jurisdiction by way of overstepping or crossing the limits

of jurisdiction, or

 When a subordinate court acts in flagrant disregard of law or rules of procedure, or

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 When a subordinate court acts in violation of principles of natural justice where there is no procedure

specified.

5. Prohibition

A writ of prohibition is issued by a Court to prohibit the lower courts, tribunals and other quasi-judicial

authorities from doing something beyond their authority. It is issued to direct inactivity and thus differs from

mandamus which directs activity.

It is issued when the lower court or tribunal acts without or in excess of jurisdiction or in violation of rules of
natural justice or in contravention of fundamental rights. It can also be issued when a lower court or tribunal

acts under a law that is itself ultra vires.

The difference between the writ of certiorari and prohibition is that they are issued at different stages of

proceedings of the case. The writ of certiorari is issued after the case is heard and decided. It is issued to quash

the decision or order of the lower court when the lower court passed an order without or in excess of

jurisdiction. Whereas, the writ of prohibition is issued prohibiting the proceedings in the lower court which acts

without or in excess of jurisdiction while the case is pending before it.

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 CASE LAWS REGARDING THE WRIT OF PROHIBITION

1. Brij Khandelwal v. India (1975)

The Delhi High Court refused to issue a prohibition against the Central Government from engaging in a
boundary dispute agreement with Sri Lanka. The judgment was founded on the basis that there is no bar against
the government performing executive or administrative duties. With the idea of natural justice and the growth of
the concept of fairness, there is no longer a tolerable view, even in administrative tasks. The stiffness about
certiorari or prohibition writ has also been softened. If any of the grounds on which the writ of prohibition is
issued is present, the writ can now be issued to anybody, regardless of the nature of the duty fulfilled by it.
Prohibition is currently considered as a broad remedy for judicial control of impacting quasi-judicial as well as
administrative actions.

2. S. Govind Menon v. Union of India (1967)

A writ of prohibition can be issued in both circumstances of excess jurisdiction and absence of jurisdiction. Writ
of prohibition was issued by a higher court, namely the Kerala High Court, to a lower court in order to take over
jurisdiction that was not initially vested, or in other words, to compel lower courts to retain their jurisdictional
limitations. The writ can be issued when there is an excess of jurisdiction as well as when there is an absence of
jurisdiction.

3. Hari Vishnu v. Syed Ahmed Ishaque (1955)

The case dealt with distinctions between writs of prohibition and certiorari. The verdict, in this case,
distinguished between certiorari and prohibition writs and said that when the lower court issues a decision, the
petitioner must file a certiorari petition since prohibition writs can only be submitted when judgment has not yet
been given.

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 CASES LAW RELATED TO THE WRIT OF CERTIORARI

1. Syed Yakoob v. K.S. Radhakrishnan & Ors. (1964)

Facts

The State Transport Authority had called for applications for the grant of two-stage carriage permits via a
notification under the Motor Vehicles Act, 1939. After receiving a number of applications, the first permit was
granted to one of the applicants while fresh applications were called for the second one. Following this, the
appellant appealed to the State Transport Appellate Tribunal. The Tribunal in its decision confirmed the first
permit and in the second it allowed the appellant’s appeal and held that it should be given to him. The
respondent then moved to the High Court with a writ of certiorari. It contended that the Tribunal had
overlooked several material considerations. When the previous order was affirmed, the appellant then moved
the Supreme Court under a special leave petition.

Issue

Did the High Court exceed its jurisdiction by issuing the writ of certiorari?

Held

It was held that the High Court did exceed its jurisdiction by issuing the writ of certiorari in the present case. It
was observed that this writ is issued to correct instances where a court has exceeded its jurisdiction. Under the
powers granted by the writ, the court cannot act as a court of appeal or check an error of fact. It can be
employed in cases where there is an error of law, or when it can be shown that there has been a violation of the
principles of natural justice. But not on the basis of an error of fact solely. However, whether there has been
such an error or not is a matter of the court’s discretion.

2. Hari Vishnu Kamath v. Syed Ahmed Ishaque (1954)

Facts

In this case, both the appellant and respondent were two election candidates from the constituency of
Hoshangabad for the election to the House of the People. When the result came out, the respondent secured
more votes than the appellant and the Returning Officer declared the former as the winner. The appellant then
filed a writ petition challenging the election and setting it aside as 301 ballot papers marked in favor of the
respondent were not valid as they did not have the distinguishing marks as per Rule 28. The Election Tribunal
dismissed the petition on the ground that the result was not affected by the wrong acceptance of votes. The
appellant then moved to the High Court for a writ of certiorari to get the order passed by the Election Tribunal
quashed on the grounds that it was invalid and the Tribunal had overstepped its jurisdiction.
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Issue

Whether the High Court had the jurisdiction to issue a writ under Article 226 against the decision of the
Election Tribunal?

Held

It was held that the petition was maintainable and the decision of the Tribunal came under the writ jurisdiction
of the High Court. The decision by the Election Tribunal was also quashed.

Also, it firmly established the following principles:

(i) The writ can be issued for correcting the errors of jurisdiction committed by the lower courts.

(ii) It is a part of the supervisory jurisdiction of the court and not the appellate jurisdiction. If the law does not
allow an appeal in a particular case, then giving it a back-door entry via the writ of certiorari amounts to
defeating the purpose of the law.

(iii) The aim here is not to re-hear the case and consider the facts once again. It can only be invoked in cases of
error of law.

3. Radhey Shyam and anr. v. Chhabi Nath and Ors. (2015)

Facts

The respondent had filed a writ petition in the High Court, during the pendency of trial, against an interim order
passed by the civil court. The High Court vacated the interim order and passed in favor of the appellant. Then
the appellant moved the Supreme Court under Special Leave Petition contending that the High Court had no
jurisdiction to pass the order and no writ petition can lie against an interim order passed by civil court.

Issue

Can a writ be filed against the order of the civil court under Article 226 of the Indian Constitution?

Held

The court differentiated the High Court’s jurisdiction under Articles 226 and 227. It was observed that Article
226 gives writ jurisdiction to the court, while on the other hand Article 227 gives supervisory jurisdiction. Both
of them differ in their scope and nature of powers given to the court. As per Article 227, the court cannot only
quash an order, but also substitute it with its own opinion or a decision. But the court cannot do the same under
Article 226. Thus, it was held that judicial orders of civil courts are not amenable to a writ of certiorari.

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 SUGGESTION

The purpose of a writ of prohibition is to prevent judicial officers exceeding judicial power, and not to
provide an alternate means of remedying judgments from which there are adequate rights of appeal.

First, the High Court granting certiorari does not thereby claim appellate powers. It will not reevaluate
evidence underlying the lower body's ruling. But it may issue certiorari where the record plainly shows an
error of law, provided certiorari is not casually invoked given its status as a high prerogative writ.

Second, the extraordinary remedy afforded by Article 226 is discretionary. The writ court can flexibly issue
orders in the public interest and equity. Legal formulas cannot ignore case realities. While applying the law,
equity may temper it. If equity demands not taking the law to its logical end after correcting it, the High
Court would fail its duties by ignoring equitable considerations and not molding the final order per its
extraordinary jurisdiction. Any other approach effectively reduces the High Court to a typical appellate
court.

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 CONCLUSION

With the right public awareness in India, every major government action on judicial review is of the trend of
legal development in India. Some executive branches of government have begun to take the initiative to bring
judicial review of some controversial issues in order to reduce decision-making responsibilities. From India, the
development of judicial review and the basic framework can draw the following conclusions. First, India is an
important judicial review of the constitutional system in Indian capitalism. The rule of law plays a positive role
in safeguarding the constitutional system. Secondly, the main function of judicial review of the system is to
balance the legislative and administrative constraints, and in essence is the interests of all sectors. The purpose
of judicial review from the Indian courts is to establish the constitutional principle of judicial review, as well as
the expansion of judicial review. The judicial review of constitutional governance is to be a useful tool to play
its effective role. Courts need to balance different social interests, to take appropriate activism or restraint
doctrine in the judicial review and to consider many factors like the laws of the policies and programs, the
discretion granted to the target and the nature and scope of the discretionary decisions that may affect the rights
and interests of the consequences. Finally, the development of judicial review in India is inherited from the
British colonial era and its constitutional system and the product of common law judicial system is the capitalist
nature of the constitutional mechanism.

From the above discussion, it is clear that not only judicial control of administrative action is one of the organs
of administrative law, but by and large it is the most important one. The courts have become final arbiters of the
exercise of authority by administration in order to ensure that such authority is exercised in accordance with law
and free form abuses like arbitrariness, caprices, perversity and violation of principles of natural justice. In the
process of this judicial review, a vast body of principles and procedures has been laid down by the superior
courts in UK, Pakistan and India.

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BIBLIOGRAPHY AND WEBLIOGRAPHY

Bibliography
 Judicial Review and the Indian courts by Chinmoy Roy
 Remedies in Judicial Review of Administrative Action, Superior University, Lahore

Webliography
 https://blog.ipleaders.in/all-you-need-to-know-about-the-writ-of-certiorari/
#Cases_law_related_to_the_writ_of_Certiorari
 https://cleartax.in/s/writs

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