6 Principles to know before you invoke a Writ Jurisdiction

Discretion
The first principle is that the grant of relief under Article 226 and Article 32 is
at the discretion of the courts.
Grant of relief involves the exercise of discretion by judges and the rest of the
principals we are concerned with are in essence, self-imposed judicial
guidelines for the exercise of that discretion.

The alternate, equally efficacious remedy test

The second principle is that courts will generally not exercise jurisdiction in a
case where the petitioner has an alternate, equally efficacious remedy at his
or her disposal, as we saw earlier, this is based on the idea that the jurisdiction
is not a substitute for other procedures provided by law for dispute resolution,
such as criminal or civil trials.
For example, this is also the reason why courts may be averse to exercising
jurisdiction in cases that involve disputed questions of fact
Let us take an example to understand this principle. Better say you want to build
a shopping mall for which you enter into a contract with a Marble supplier to
sell you marble for your shopping mall, and then you breach that contract by not
paying the agreed sale price. The marble supplier could theoretically approach
the high court under Article 226, claiming that it can invoke its jurisdiction
under the head of any other purpose. It could also, of course, approach a civil
court and file a civil suit seeking appropriate reliefs against you.If the marble
supplier approaches a high court under Article 226 in such circumstances, the
high court is likely to dismiss its petition on the preliminary ground that an
alternate, equally efficacious remedy is available. The marble supplier should
exercise those remedies instead of invoking Article 226.Therefore, the mere fact
that a claim is being made against the government does not mean that the High
Court must exercise its jurisdiction.

Needless to say, these are general propositions, they may have exceptions, and
courts in certain cases may go beyond these general propositions as well. A lot
depends on the particular facts of a case and the feasibility of exercising an
alternate remedy provided by law.

Judicial review of executive actions

A third principle relevant to the exercise of writ jurisdiction is about the scope
of judicial review of executive action. When a court exercising writ
jurisdiction reviews the correctness of a particular action, say the selection of a
person by the government to a particular post, its role is not to substitute its own
assessment for the government’s assessment, but to assess whether the
government has acted rationally and not arbitrarily.
In general, a judicial review of executive action is a review of the process by
which the decision was made and not necessarily the specific outcome of that
executive action. Its states that , the courts will not intervene to quash the
decision of a statutory authority unless it can be shown that the authority of the
law was guilty of a breach of natural justice or acted unreasonably.

The principle excludes the court from substituting its own view of the facts for
that of the authority. This principle has its basis in the doctrine of separation of
powers, the judiciary is not superior to the executive, but it must ensure that
the executive acts according to law. Of course, again, this principle is a general
one. How far a court deems it fit to interfere in a particular case of judicial
review of executive action may vary on the facts of the case.

Judicial review of legislative action

The fourth principle is about the judicial review of legislative action. That is
when laws passed by law-making authorities are challenged by invoking Writ
jurisdiction in such cases.

1. The first aspect of the review is whether the legislation violates a

fundamental right.
2. whether the legislation violates a constitutional right other than a
fundamental right. And
3. Relevant in the case of delegated legislation such as the Bar Council of
India rule, 1975, which have been made under the authority granted to the
Bar Council of India by the Advocates Act. 1961 is whether the scope of
the delegated legislation under review is ultra vires i.e whether it goes
beyond the scope permitted of such delegated legislation by statute or
otherwise.

In such cases, it is not sufficient that the lawmaking authority in good faith
considered the legislation to be valid. In this sense, the judicial review of
legislative action is different from the judicial review of executive action. The
court must consider objectively, as a matter of legality and constitutionality,
whether the legislation can be sustained.

The burden of proving that particular legislation is unconstitutional or ultravirus

is a statute is on the person alleging it to be so. The legislation carries a
rebuttable presumption of constitutionality or legality.

Writ Futility test

The fifth principle is that jurisdiction will not be invoked in futility. That is, if
the grant of relief will be futile, though a violation of a right has been
established, the court will not exercise its jurisdiction. For instance, if a student
has been wrongly denied admission in a university in the year 2013 and the
Student Files petition after, say, two years, the court declined to grant him any
relief because the student is no longer in a position to join the university as part
of the batch which commenced in 2013.

Residuary principle
The sixth principle, if it can be called one, is that the court may exercise
jurisdiction in the interests of justice. It is difficult to contemplate all the
possible situations that may arise in human affairs so the courts have a residuary
bar, so to speak, of being able to invoke jurisdiction where they deem it to be in
the interests of justice.

Other Major Factors

Apart from these six principles, there are three other major factors that courts
consider relevant when they exercise their discretion for invoking Writ
jurisdiction.

Clean Hands

The first factor is whether the person seeking to invoke Writ jurisdiction has
clean hands. That is whether the petitioner has engaged in inequitable or illegal
behaviour.

Jurisdiction

If so, the court may not be inclined to grant relief after invoking jurisdiction,
even if there is an arguable case on merits. The second factor is about the
conduct of parties during Writ proceedings if the parties conduct during the
proceedings is inequitable or illegal. The court may consider such conduct as
relevant to the formulation of final reliefs in the matter.

Delay.

The third factor is delay. That is whether the person seeking relief has acted
diligently or whether there has been an inordinate delay on his or her part. In
some cases, the excessive or unexplained delay can be a relevant factor for a
court to decline the exercise of writ jurisdiction.