UNIT VII

JUDICIAL REVIEW of ADMINISTRATIVE

ACTION

By
Dr.Manika Kamthan
UBI JUS IBI REMEDIUM
• The Judicial remedies may be classified under two broader heads:
• (1) Constitutional Remedies (Article 32, 136,226 and 227) &
Curative Petitions under Article 142
• (2) Statutory remedies – sometimes statutes itself provide for judicial
remedies against particular kinds of administrative actions.
• Any statutory remedy does not disturb the structure of constitutional
remedies.
• Article 32 and 226 are Writ Jurisdiction of the Supreme Court and
High Courts. Article 136 provides for special leave by the Supreme
Court and Article 227 is the Supervisory jurisdiction of High Courts.
 Judicial Review
• Review literally means formal assessment of
something with the intention of instituting change if
necessary.
• Judicial Review- Review by Judiciary
• OF what ??- legislative and executive actions
• Judicial review is the power bestowed upon the
judiciary by the constitution, by virtue of which the
judiciary can examine legislative enactments and
executive orders of the governments, be it state or
central.
 ORIGIN
• The word judicial review was summarized in Marbury V.
Madison, 1803
• U.S. Supreme Court declared the act of Congress as
unconstitutional
• In India, the concept was formally provided in Article 13
• Under Article 13(2) of the Constitution of India, any law made
by the parliament that abridges the right conferred to the
people under Part 3 of the constitution is void-ab-initio.
• The power to interpret the Constitution of India to its full
extent lies within the Judiciary. It is the protector of the
Constitution of India.
• Judicial Review is “basic structure” of the Constitution-
Kesavananda Bharati V State of Kerala (1973)
 Article 13
13. (1) All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall,
to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,— (a) “law” includes
any Ordinance, order, bye-law, rule, regulation, notification, custom or usage
having in the territory of India the force of law; (b) “laws in force” includes
laws passed or made by a Legislature or other competent authority in the
territory of India before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or any part thereof
may not be then in operation either at all or in particular areas.
[(4) Nothing in this article shall apply to any amendment of this Constitution
made under article 368.]
 IMPORTANCE
• Judicial review is necessary to uphold the principle of
supremacy of the constitution.
• The provision of judicial review prevents the misuse
of power by the legislature and executive.
• It maintains the equilibrium between the centre and
state, thereby maintaining federal equilibrium.
• The provision protects the fundamental rights of the
citizens.
• This provision ensures the principle of the
independence of the judiciary.
 SCOPE
• The said law infringes upon the fundamental rights
guaranteed by the constitution.
• The said law goes against the provisions listed in the
constitution.
• The law that has been enacted goes beyond the
competency of the authority that has framed it.
• The nature and purpose of JR is not the review of the
decision of the administrative authority but of the
decision-making process
TYPES OF JUDICIAL REVIEW

Legislative Review

Judicial Review

Constitutional Review

Administrative Action Review

ADMINISTRATIVE ACTION
• Residuary Action- Neither legislative nor judicial
• It is concerned with the betterment of a particular situation.
• It has no procedural obligations of collecting evidence and weighing
arguments.
• It is where the decision is based on policy and expediency, it does not
decide a right, but it may affect one.
Grounds for Judicial Review

1.Jurisdictional Error

2.Irrationality

3.Procedural Impropriety

4.Proportionality

5.Legitimate Expectation
Jurisdictional Error

A case of ‘lack of jurisdiction’ is where the tribunal

or authority holds no power or jurisdiction at all to
pass an order.

The court may review this administrative action on

the ground that the authority exercised jurisdiction
which it was not supposed to.
Lack of Jurisdiction

Excess of Jurisdiction

Abuse of Jurisdiction
Lack of Jurisdiction

• It would be a case of “lack of jurisdiction” where the tribunal or authority has no jurisdiction at all to
pass an order. Court may review an administrative action on the ground that the authority exercised
jurisdiction which did not belong to it. This review power may be exercised inter alia on following
grounds:
• i) That the law under which administrative authority is constituted and exercising jurisdiction is
itself unconstitutional.
• ii) That the authority is not properly constituted as required by law.
• iii) That the authority has wrongly decided a jurisdictional fact and thereby assumed jurisdiction
which did not belong to it.
• In Rafiq Khan vs. State of U.P[ii]., Panchayat Raj Act, 1947, did not empower the Sub- Divisional
Magistrate to modify the order of conviction & sentence passed by a Panchayat Adalat. He could
either quash the entire order or cancel the jurisdiction of the Panchayat Adalat. The magistrate
maintained the conviction of the accused in respect of one of the offences only & quashed the
conviction in respect of other offences. The Allahabad High Court quashed the conviction in respect
of other offences by a writ of certiorari.
Excess of Jurisdiction
• This covers a situation wherein though authority initially had the jurisdiction but
exceeded it and hence its actions become illegal. This may happen under following
situations:
• i) Continue to exercise jurisdiction despite occurrence of an event ousting jurisdiction.
• ii) Entertaining matters outside its jurisdiction.
• In R vs. Richmond upon Thames Council ex parte McCarthy & Stone Ltd., the local
planning authority implemented a scheme of charging 25 pound for informal
consultation between corporation officers & property developers. The House of Lords
held that imposition of the charge was unlawful. Such a charge was neither incidental
to the planning function of the local authority, nor could a charge be levied on the
public without statutory authority. The council had misconstrued its powers &
accordingly, acted ultra vires.
Abuse of Jurisdiction

• Improper purpose
• Error apparent on the face of the record
• Non-consideration of relevant material
• In bad faith
• Fettering discretion
Irrationality
• Lord Diplock’s definition: “By ‘irrationality’ I mean what can by now
be succinctly referred to as ‘Wednesbury unreasonableness.’
• It applies to a decision which is so outrageous in its defiance of logic
or accepted moral standards that no sensible person who had applied
his mind to the question to be decided could have arrived at it.”
• “Whether a decision falls within this category is a question that judges
by their training and experience should be well equipped to answer, or
else there would be something badly wrong with our judicial system…
Irrationality by now can stand on its own feet as an accepted ground
on which a decision may be attacked by judicial review.”
• The Delhi High Court in Neha Jain vs. University of Delhi, holding that that cancellation of
examination & debarring the student for next exams as disproportionate punishment for
adopting unfair means in the examination, substituted cancellation of only one paper as
sufficient punishment Since the basic requirement of article 14 is fairness in action of the State,
and non-arbitrariness in essence and substance, being the heart of fair play, judicial interference
with policy decision is permissible:
• If the decision is shown to be patently arbitrary, discriminatory or mala fide
• If it is found to be unreasonable or violative of any provision of the Constitution or any other
Statute
• If it can be said to suffer from any legal infirmity in the sense of its being wholly beyond the
scope of the regulation-making power
• If it is demonstrably capricious or arbitrary & not informed by any reason
• Irrationality applied to a decision which is so outrageous in its defiance of logic that no sensible
person who had applied his mind to the question to be decided would have arrived at it.
Procedural Impropriety

It is a failure to comply with the laid down procedures.

Failure to observe rules given in statute

Failure to observe the basic common-law rule of justice.

Proportionality
• The doctrine asserts that there must be a reasonable nexus between the
desired result and the measures taken to reach that goal.
• The action taken must not be shockingly disproportionate to the
consciousness of the court and the said action can then be challenged
by way of judicial review.
• Example??
• Sir John Laws has described 'proportionality' as a principle where the
court is concerned with how the decision maker has ordered his
priority.

• Lord Diplock in R vs. Goldstein said, "This would indeed be using a

sledge-hammer to crack a nut"
• Proportionality' involves a "Balancing test" which keeps a check on
the excessive or arbitrary punishments or encroachment upon the
rights and "Necessity test" which takes into account other less
restrictive alternates.
• The principle of proportionality evaluates two aspects of a decision:
(1) Whether the relative merits of differing objectives or interests were
appropriately weighed or "fairly balanced"?
(2) Whether the measure in question was in the circumstances
excessively restrictive or inflicted an unnecessary burden on affected
persons ?
• Anuradha Bhasin V UOI
https://globalfreedomofexpression.columbia.edu/cases/bhasin-v-
union-of-india/
Legitimate Expectations
• "A person may have a legitimate expectation of being treated in a certain way by
an administrative authority even though he has no legal right in private law to
receive such treatment.
• The expectation may arise from a representation or promise made by the authority
including an Implied representation or from consistent past practice.
• A case of legitimate expectation would arise when a body, by representation or by
past practice, aroused expectation that would be within its power fulfill.
• The protection is limited to that extent and the judicial review can be within those
limits.
• A person, who bases his claim on the doctrine of legitimate expectation. in the first
instance must satisfy that there is a foundation and thus has locus standi to make
such a claim
• The term “legitimate expectation”, which was coined by Lord
Denning in 1969, is an expectation of an ordinary man to
have benefit or relief, which is a consequence of a promise or
representation, either express or implied, made by the
administrative authority concerned or its prior established
practice.
• Hence, a legitimate expectation is an expectation to be
treated in a particular way by the administrative authority or
to receive some benefit as a matter of public law, although no
such enforceable right is conferred on him under private law.
• Thus, this doctrine creates a central space between ‘no claim’
and a ‘legal claim’.
State of Kerala v. K.G. Madhavan Pillai ((1988) 4 SCC
669).

• Herein a sanction was issued for the respondents to

open a new aided school and to upgrade the existing
schools, however, an Order was issued 15 days later to
keep the previous sanction in abeyance.
• This Order was challenged by the respondents instead
of violation of principles of natural justice.
• The Supreme Court ruled that the sanction had entitled
the respondents to legitimate expectation and the
second order violated principles of natural justice.
ARTICLE 136
• A Special Leave Petition (SLP) is a legal remedy available in the Supreme Court
of India governed by Article 136 of the Constitution of India.
• It allows individuals or parties to seek special permission from the Supreme Court
to appeal against any judgment, decree, or order of a lower court or tribunal in the
country.
• It is discretionary in nature, the SC may or may not allow SLP
• It is one of the extraordinary powers vested in the Supreme Court.
• (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence, or order in any cause
or matter passed or made by any court or tribunal in the territory of India.
• (2) Nothing in clause (1) shall apply to any judgment, determination, sentence, or order passed or
made by any court or tribunal constituted by or under any law relating to the Armed Forces.”
TRIBUNAL
• A tribunal is a body or authority, though not a court in the strict sense, which is invested with the
judicial power to adjudicate on questions of law or fact, affecting the rights of citizens in a judicial
manner.
• Example: Industrial tribunal, Central Administrative tribunal etc.
• Essentials of a tribunal (Bharat Bank Ltd V Employees):
• 1. that the proceedings before it must start on an application in the nature of a plaint;
• 2.that it possesses the powers of a civil court in matters compelling attendance of witnesses,
discovery, and inspection;
• 3. that it allows cross-examination and legal representation;
• 4. that it decides on the basis of evidence and according to law;
• 5. that its members are qualified to be judges
• MAIN TEST
• Whether the adjudicating power which a particular authority is empowered to exercise has been
conferred on it by a statute and can be described as a part of the State’s inherent power exercised
in discharging its judicial function.
Jaswant Sugar Mills Ltd v Lakshmi Chand
• The SC held that the Conciliation Officer exercising powers under Cl.29
of the order of the U.P. Governor, issued under the U.P. Industrial
Disputes Act 1947 is not a tribunal because:
• 1. he is not required to sit in public;
• 2. no formal pleadings are contemplated to be tendered;
• 3. he is not empowered to compel attendance of witnesses;
• 4. he is not restricted in making an enquiry about evidence which the
parties may bring before him;
• 5. he is not invested with powers similar to those of the civil court under
the CPC.
GROUNDS
• Where the tribunal acts in excess of the jurisdiction conferred upon it
under the statute or regulation creating it, or where it ostensibly fails to
exercise a patent jurisdiction;
• Where there is an apparent error on the face of the decision;
• Where awards are made in violation of principles of natural justice
causing substantial and grave injustice to parties;
• Where the tribunal has erroneously applied well-accepted principles of
jurisprudence
• SLP can be granted only against any judgment or decree of any court or
tribunal
• Manju Singh V State of U.P. (2005), Whether an order passed by the Chief
Justice of the Allahabad High Court on administrative side to transfer a case
from the Lucknow Bench to Allahabad Bench of the High Court was a decision
of a “court or tribunal”?
• The Court held that the decision of the Chief Justice is at best can be said to be
a decision of a tribunal.
• Art 136 does not mean something as a “court”, but includes within its ambit, all
adjudicating bodies, provided they are constituted by the State and are invested
with the judicial functions, except those established under any law relating to
armed forces
Article 137
• Subject to the provisions of any law made by Parliament or any rules
made under article 145, the Supreme Court shall have power to review
any judgment pronounced or order made by it.
• Under Supreme Court Rules, 1966 such a petition is to be filed
within thirty days from the date of judgment or order and as far as
practicable; it is to be circulated, without oral arguments, to the
same Bench of Judges who delivered the judgment or order
sought to be reviewed.
• Under Article 145(e), the Supreme Court is authorised to make
rules regarding the conditions subject to which the court may
review any judgement or order.
WRITS
• General Meaning - a formal order in Writing issued under seal, in the name of a
sovereign, government, Court or other authority, commanding an officer or other
person to whom it is issued, to do or refrain from doing some act specified
therein.
• Genesis in RULE OF LAW??
• State and its machinery
• Faced in earlier centuries with the problem of control of local and subordinate
authorities, English judges had evolved the prerogative writs which are still
effective in dealing with many problems created by the welfare state.
• The writ procedure was introduced into India before the end of the 18th century.
• The main purpose of writ petitions is to enable the superior courts to pass upon the
validity of the acts of the administration.
 meaning of constitutional remedy
• Remedy??
• Bridge between Citizen and State
• Medium of communication for judiciary with State
• Ambedkar had once said, “If I was asked to name any particular article in this
Constitution as the most important — an article without which this
Constitution would be a nullity — I could not refer to any other article except
this one (Article 32). It is the very soul of the Constitution and the very heart
of it.”
• Cornerstone of Democratic edifice raised by the Constitution of India-
• CJI B.P.Gajendragadkar
• Article 32 and 226 empowers SC and HCs to issue writs respectively
DIFFERENCE BETWEEN 32 AND 226
Basis of difference Article 32 Article 226
Right Article 32 is a fundamental right. Article 226 is a constitutional right.

Article 32 can be suspended if an emergency has been Article 226 cannot be suspended even at
Suspension
declared by the President. the time of emergency.

Article 226 has a broader scope as it is

Article 32 has a narrow scope as it is applicable only in case applicable not only in the case of
Scope
of violation of a fundamental right. violation of a fundamental right but also
of a legal right.

Article 226 empowers the High Court to

Article 32 empowers the Supreme Court to issue writ all issue a writ in its own local jurisdiction
Jurisdiction over India. Therefore, the Supreme Court has broader only. Therefore, High Courts have
territorial jurisdiction. narrower territorial jurisdiction as
compared to the Supreme Court.

Article 226 confers Discretionary power

Since, Article 32 is a fundamental right, the same cannot be to the High Court which means it is at
Discretion
refused by the Supreme Court. the discretion of the High Court to issue
a writ or not.
ARTICLE 227
• Article 227 of the Constitution of India provides for the power of superintendence over all Courts and
Tribunals throughout the territory by the High Courts. The nature of superintendence is administrative as
well as judicial.
• The power under Article 227 of the Constitution of India is exercised to keep the subordinate courts within
the bounds of their authority, thus, this power is to be used sparingly.
• The main grounds on which the High Court interferes under Article 227 of the Constitution of India are
i. When the inferior Courts act arbitrarily
ii. When the inferior Courts act in excess of the Jurisdiction vested in them.
iii.When the inferior Courts fail to exercise jurisdiction vested in them.
• It is pertinent to note that the High Court should not interfere for correcting mere error of facts or, with a
finding of the subordinate court which is within the jurisdiction of such court. However, if, such finding is
perverse in such a sense that no prudent person having the knowledge of law could have arrived at such
finding, or the finding is not based on any material evidence or, such finding results in manifest injustice or
if there is a misdirection in law then the High Court can interfere under Article 227 of the Constitution of
India.
KINDS OF WRITS
Habeas
Corpus

Quo
Mandamus
Warranto

Prohibition Certiorari
Habeas corpus
• It is one of the important writs for personal liberty which says “You
have the Body”. The main purpose of this writ is to seek relief from
the unlawful detention of an individual.
• It is for the protection of the individual from being harmed by the
administrative system and it is for safeguarding the freedom of the
individual against arbitrary state action which violates Fundamental
Rights under Articles 19, 21 & 22 of the Constitution.
• This writ provides immediate relief in case of unlawful detention.
When issued?
• The person confined or detained illegally.
• The person who is aware of the benefit of the case.
• The person who is familiar with the facts and circumstances of the
case and willingly files an application of the writ of habeas corpus
under article 32 and 226 of the Indian constitution.
When denied?
• When the court doesn’t have the territorial jurisdiction over the detainer.
• When the detention of a person is connected with the order of the court.
• When the person detained is already set free.
• When the confinement has been legitimized by the removal of the
defects.
• The writ of habeas corpus will not be available during an emergency.
• When the competent court dismisses the petition on the grounds of
merits.
• ADM Jabalpur v. Shivakant Shukla which is also known as the Habeas Corpus
case, it was held that the writ of Habeas Corpus cannot be suspended even
during an emergency (Article 359).
• n 1975, National Emergency under Article 352 of the Indian Constitution was
imposed by President Fakruddin Ali, on the advice of the then-Prime Minister
Indira Gandhi, on the ground of internal disturbances. Fundamental Rights
under Article 14, 20 and 22 of the Constitution were suspended for the period of
Emergency, by a Presidential Order under Article 359(1).
• Scores of political leaders who could prove to be a political threat were arrested
without any trial. Many petitions were filed in various High Courts across the
country, which gave judgements in favour of the petitioners. The Central
Government approached the Supreme Court, which became this very case.
issues
• Maintainability of any writ petition under Article 226 for the issuance of a writ of Habeas Corpus, to ensure
personal liberty, on the ground that the order of detention is not valid according to the provisions of the
Maintenance of Internal Security Act, 1971 (also known as MISA) read with the orders issued by the
President under Article 359(1).
• If yes, then what is the extent of judicial scrutiny with respect to the aforesaid mentioned Presidential
orders?
• JUDGEMENT
• The judgement was passed with the majority of 4:1. The Court held that no person can move the High
Court asking for any writ to enforce any fundamental right detained under MISA, as a claim to the writ of
Habeas corpus is an enforcement of Right to Life and Personal Liberty under Article 21 which is barred by
the Presidential Order.
• The majority agreed with all the contentions made by the appellants. To justify the suspension of
Fundamental Rights the Court said, “In period of public danger or apprehension the protective law which
gives every man security and confidence in times of tranquility has to give way to interests of the State.” It
was also stated that “Liberty is itself the gift of the law and may by the law be forfeited or abridged,” when
the question about the status of Article 21 was raised.
 Sunil Batra v. Delhi Administration & Others, 1978

• The petitioner in question, Sunil Batra was a convict serving a death sentence at the
Tihar Central Jail.
• He wrote a letter to a Judge of the Supreme court entailing the poor living conditions
and questionable treatment of inmates at the jail.
• In his letter, he also complained of the brutal assault and torture by the Head Warden
Maggar Singh of another prisoner, Prem Chand as a ploy to extract money from the
victim’s visiting relatives.
• This letter was converted into a habeas corpus proceeding and by that extension treated
as Public Interest Litigation under the ambit of Article 32 of the Constitution by the
Supreme court. Following this, the court issued a notice to the state and the concerned
officials.
• The Supreme Court enlarged the scope of habeas corpus, making available the
fundamental rights of the prisoners
MANDAMUS
 Mandamus is a Latin word, which means "We Command".
 Mandamus is an order from a superior court to a lower court or
tribunal or public authority to perform an act, which falls within its
duty.
 Simply, it is a writ issued to a public official to do a thing which is a
part of his official duty, but, which, he has failed to do, so far. This
writ cannot be claimed as a matter of right. It is the discretionary
power of a court to issue such writs.
CONDITIONS
• The person or authority against whom the writ is sought to be issued
must have some public duty to perform, which he has failed to do so.
• Such public duty must be imperative or mandatory in nature and not
discretionary and there has to be a failure in its performance.
• The petitioner should have the right backed by law to compel the
authority or person against whom he seeks to issue the writ of
Mandamus.
• When the petitioner called upon the authority to perform its public
duty and it refused to do so.
EXCEPTIONS
• No writ of Mandamus can be granted against the President and
governors of states.
• It won’t be granted against private individuals and companies that
have no public duty to perform.
• It cannot be issued against a legislature, commanding or preventing it
to enact a legislation.
DIFFERENCE W.R.T ARTICLE 32 AND
226
• For the enforcement of fundamental rights, the writ of Mandamus will be
issued by the court that would restrain the public official or the government
from doing the act against the aggrieved person.
• There are other purposes for which writ of Mandamus can be issued by a
High Court, but not the Supreme Court. They are the following :
• To restrain a public official or the government from enforcing any law that
is unconstitutional.
• To compel a court or tribunal to exercise its jurisdiction when it has refused
to do so.
• To compel any person to perform their public duty which is either
constitutional or statutory.
Barada Kanta VS.State Bengal

• In this case, writ of mandamus does not lie against a private

individual or any private organisation because they are not entrusted
with a public duty.
John Paily & Ors v. State of Kerala &
Ors [WPC 428/2021] (LL 2021 SC 227)
• The petition was said to be an attempt to prevent the operation of the case K.S Varghese v. Saint Peter’s & Saint Paul’s
Syrian Orthodox Church (2017).
• The case was decided by the High Court of Kerala and affirmed by the Supreme Court. The basis for the case was the
constant conflicts between the Orthodox faction and the Patriarch faction, also called the Jacobites, over the control of the
St. Peter’s Church.
• The decision was given in favour of the Orthodox faction, like most of the earlier decisions on conflicts over management
of Churches. As a result, the petitioners in the current case felt aggrieved as members of the Patriarch denomination.
• They felt that their fundamental rights of religious freedom were violated and thus, they filed a petition for the issuing of a
Writ of Mandamus to enforce their fundamental rights.
• The petitioners wanted the Court to issue directions that are in the nature of a Mandamus for the establishment of an
independent tribunal composed of retired High Court judges so that they can look into the claims of each parish Church and
determine which denomination will get to control it.
• The court said that neither it can issue a writ of mandamus to constitute a tribunal nor can it instruct or direct the legislature
of a State to do so having regards to article 245 and 246 of the Indian constitution. The court in its verdict said that such a
petition cannot be entertained and not maintainable. Hence, this petition is dismissed.
Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna
Jayanti Mahotsav Smarak Trust v. V.R. Rudani (1989) 2 SCC
691 : AIR 1989 SC 1607
• Can the writ of mandamus be issued against any individual or private body?
• If the rights are purely of a private character no mandamus can issue.
• If the management of the college is purely a private body with no public duty mandamus will not lie.
• These are two exceptions to mandamus.
• But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied.
• It has to be appreciated that the appellants-trust was managing the affiliated college to which public money is paid
as government aid. Public money paid as government aid plays a major role in the control, maintenance and working
of educational institutions. The aided institutions like government institutions discharge public function by way of
imparting education to students. They are subject to the rules and regulations of the affiliating University. Their
activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not
devoid of any public character
• So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales,
it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a
private character. It has superadded protection by University decisions creating a legal right-duty relationship
between the staff and the management.
• When there is the existence of this relationship, mandamus cannot be refused to the aggrieved party.
Common Cause v. Union of India AIR 2003
SC 4493
• [No mandamus for exercise of discretionary power]
• The question whether the Court can issue a mandamus directing the
Executive to notify the Act / Amendment came up for consideration in
this case.
• In relation to the Delhi Rent Act, 1995, the Supreme Court held that
when the legislature itself had vested the power in the Central
Government to notify the date from which the Act would come into
force, then, the Central Government is entitled to take into consideration
various facts while considering when the Act should be brought into
force and no mandamus can be issued to the Central Government to
issue the notification bringing the Act into force.
PROHIBITION

 Writ of prohibition means to forbid or to stop and it is popularly

known as 'Stay Order'.
 This writ is issued when a lower court or a body tries to transgress
the limits or powers vested in it.
 It is a writ issued by a superior court to lower court or a
tribunal forbidding it to perform an act outside its jurisdiction. After
the issue of this writ, proceedings in the lower court etc. come to a
stop.
CONDITIONS
• It is issued to a lower or a subordinate court by the superior courts in
order to refrain it from doing something which it is not supposed to do as
per law.
• It is usually issued when the lower courts act in excess of their
jurisdiction. Also, it can be issued if the court acts outside its jurisdiction.
• And after the writ is issued, the lower court is bound to stop its
proceedings and should be issued before the lower court passes an order.
• Prohibition is a writ of preventive nature. The principle of this is
‘Prevention is better than cure’.
WHEN CANNOT BE ISSUED ?
• A writ of prohibition cannot be issued when a subordinate or a tribunal
court is acting within the ambit of its jurisdiction.
• A writ of prohibition cannot be issued in the situation of a mistake of a
fact or law.
• A writ of prohibition is not allowed for administrative authorities
discharging administrative, executive or ministerial functions.
S. Govinda Menon VS. Union of India (1967)
• The writ is issued in both cases where there is excess of jurisdiction and where there is
absence of jurisdiction.
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.
Prudential Capital Markets Ltd v. The State of A.P. and others, (2000)
• In this case, it was questionable whether the prohibition writ could be issued against
the district forum/state commission which had already passed judgments in the depositors’
consumer cases. The Court held that after the execution of the order, the writ of prohibition
cannot be issued, the judgment can neither be prevented nor stopped.
CERTIORARI
 Literally, Certiorari means to be certified.
 The writ of certiorari is issued by the Supreme Court to some inferior
court or tribunal to transfer the matter to it or to some other superior
authority for proper consideration.
CONDITIONS
1.The existence of an officer or a tribunal having the judicial authority as per the law to decide on the cases affecting the rights of people.
2.Such an officer or the tribunal must have acted-
• in excess of judicial power, or
• without requisite jurisdiction, or
• in violation of the principles of natural justice.
3.The honorable Supreme Court has clarified that this writ cannot be issued against purely administrative actions. This implies that it can be
invoked only in those situations where it is the concerned authority’s duty to act judiciously, after hearing both the parties and without any
extraneous considerations. However, in the subsequent decisions, this view has been rejected. So even if the authority is not required to hear
both sides before coming to a decision, the principles of natural justice must be obeyed. Thus, the writ of certiorari can be issued even in the
administrative cases.
4.A body is said to have acted beyond its jurisdiction in the following cases:
• Where the court considering the matter has not been constituted properly as per the law, like the requirements of members, etc.
• Where the subject matter of inquiry lies beyond the scope of the body’s powers as per the law.
• When the jurisdiction has been based on a wrong assumption of facts.
• When there is a failure of justice due to violation of principles of natural justice or presence of elements like fraud, collusion, or
corruption.
• Even though the body has acted well within the limits of its jurisdiction, a decision can be quashed if there is a blatant error prima facie.
The error here means an error of law.
 Hari Vishnu Kamath v. Syed Ahmed Ishaque (1954)

• 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.
• 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.
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.
Syed Yakoob v. K.S. Radhakrishnan AIR 1964 SC 477
• 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.
QUO WARRANTO
 The word Quo-Warranto literally means “on what authority one is
holding the public office"
 It is a writ issued with a view to restraining a person from acting in a
public office to which he is not entitled.
 For example, a person of 62 years has been appointed to fill a public
office whereas the retirement age is 60 years. Now, the appropriate
High Court has a right to issue a writ of quo-warranto against the
person and declare the office vacant.
HISTORICAL BACKGROUND
• The origins of the concept of writ jurisdiction can be found in early English law. Quo
warranto used to be issued by the Crown against any person occupying or usurping a
public office, availing franchise or privilege of the Crown – to show by what authority the
usurper justified his claim. In India, during the Pre-Constitution period, the writ of quo
warranto was not used frequently and was gradually replaced by proceedings in the nature
of quo warranto.
• According to Section 9 of the Administration of Justice (Miscellaneous Provisions) Act
1938, information in the nature of quo warranto came to an end.
• The three High Courts in the Presidency towns, before the Constitution came into effect in
1950, possessed the authority to issue the writ of quo warranto within the limits of their
original jurisdiction.
• With the advent of the Constitution in 1950, Articles 32 and 226 emerged and granted the
Supreme Court and High Courts, respectively, the power to issue writs, including the writ
of quo warranto.
GROUNDS FOR ISSUING QUO
WARRANTO
• The office must be public and it must be created by a statute or by the
Constitution itself;
• The office must be a substantive one and not merely the function or
employment of a servant at the will and during the pleasure of another
• There has been a contravention of the constitution is a statute or
statutory instrument in appointing such person to that office
• In Rajesh Awasthi v. Nand Lal Jaiswal, (2013), it was laid down that quo warranto applies
where an appointment is made which is “contrary to statutory provisions” and came up with a
test to determine whether a person is eligible/qualified to hold office as per the stipulations of
law. The key point is to see if the office holder has the qualifications to hold office as per la
• In Mahesh Chadra Gupta v. Dr. Rajeshwar Dayal and Ors, (2003), the appointment of the
respondent as a professor of Paediatrics in S.N Medical College in Agra was questioned.
However, it was found that the appellant had no connection or interest whatsoever with the
appointment and was not adversely affected in any way. The Court referred to the case Bindra
Ban v. Sham Sunder (1959), where the locus standi was relaxed for applying for the writ of quo
warranto. However, even so, a person cannot apply for quo warranto when he does not have
even the remotest connection to the appointment of the public office which is being challenged.
By allowing such applications, the Court would be flooded by such petitions.
• Even if the locus standi is relaxed, there must be certain connection between the petitioner and
the appointment to the public office, no matter how remote for quo warranto to be
maintainable.
 University of Mysore v. CD Govinda Rao, (1963)

• In this case, the University of Mysore had set up recruitment

advertisements for the positions of professor and reader. The eligibility
for the posts would be decided on the basis of the list of criteria made
by the University.
• The petition was put forward to issue the writ of quo warranto based
on the fact that an unqualified person, not meeting the criteria was
recruited and appointed as reader in English.
• It was observed by the Supreme Court that to issue the writ of quo
warranto, the person who wrongfully occupies the public office, must
be holding an office of a ‘substantive’ nature.
• It would thus be seen that it these proceedings are adopted subject to the
conditions recognized in that behalf, they tend to protect the public from
usurpers of public office; in some cases, persons not entitled to public office
may be allowed to occupy them and to continue to hold them as a result of the
connivance of the executive or with its active help, and in such cases, if the
jurisdiction of the courts to issue writ of quo warranto is properly invoked, the
usurper can be ousted and the person entitled to the post allowed to occupy it.
• It is thus clear that before a citizen can claim a writ of quo warranto, he must
satisfy the court, inter alia, that the office in question is a public office and is
held by usurper without legal authority, and that necessarily leads to the
enquiry as to whether the appointment of the said alleged usurper has been
made in accordance with law or not.
Difference b/w writ of certiorari and quo
warrnato
• The main difference between the two writs is that the writ of prohibition is issued when a
subordinate court takes up a matter which is out of their hegemony, so in this case, when this
writ is issued the court has to stop its proceedings i.e., when a case is still pending in the court,
whereas, the writ of certiorari is issued when a subordinate court has delivered a decision which
is out of their judicial power i.e. when a case has been already decided, so on its issue, the court
has to hand over the files and all other related documents of the case to the higher court. In
some situations, the petition for both of the writs can also be filed.
• For instance, a subordinate court has received a matter which is out of their judicial power so in
this case if they receive an order of prohibition from the high court they have to immediately
stop but if the petitioner fails to visit the court for issue of the writ of prohibition then they are
still left with the writ of certiorari where even if the decision is being delivered this writ will
revoke the subordinate court’s verdict and the matter will be then shifted to the high court or the
supreme court.
• https://www.livelaw.in/high-court/calcutta-high-court/calcutta-high-court-writ-petition-
amendment-certiorari-quo-warranto-231086
CURATIVE PETITION
• Article 142 in Constitution of India
• 142. Enforcement of decrees and orders of Supreme Court and orders as to
discovery, etc
• (1)The Supreme Court in the exercise of its jurisdiction may pass such decree or make such
order as is necessary for doing complete justice in any cause or matter pending before it,
and any decree so passed or order so made shall be enforceable throughout the territory of
India in such manner as may be prescribed by or under any law made by Parliament and,
until provision in that behalf is so made, in such manner as the President may by order
prescribe.
• (2)Subject to the provisions of any law made in this behalf by Parliament, the Supreme
Court shall, as respects the whole of the territory of India, have all and every power to make
any order for the purpose of securing the attendance of any person, the discovery or
production of any documents, or the investigation or punishment of any contempt of itself.
• Extraordinary jurisdiction
• Curative Petition', a term, a concept has been coined by the Supreme Court in 2002 by its judgment in
the case of Rupa Ashok Hurra v. Ashok Hurra [(2002) 4 SCC 388].
• Curative petition, in layman's language, means a method devised by the Supreme Court to review or
to revise (relook) its own decision passed in the review petition.
• Any party who wishes to challenge the order of review, can file a curative petition.
• The normal ladder in the Supreme Court is that firstly, one files a petition challenging the High Court
(or equivalent) order, then against the order of this petition, a review can be filed and eventually in
rarest of the rare cases, as a final resort, one may resort to curative, subject to the fulfillment of certain
conditions.
• Not every litigant can approach the Supreme Court by means of curative petition as it is used very
sparingly by this Court.
• Genesis in Art.137
• https://www.scobserver.in/journal/court-in-review-curative-petitions/
PROCEDURE
• A curative petition is supported by Article 137 of the Constitution of India. As per the article, in matters
of law and regulations made under Article 145, the Supreme Court has the power to review any
judgements or orders made by it. A curative petition needs to be made within 30 days from the date of
the judgement passed.
• A petitioner can file a curative petition only if the review petition has been dismissed.
• It is also required from the petitioner to state or assert specifically the grounds on which the review
petition was undertaken and that it was dismissed by circulation, which is in turn certified by a senior
advocate.
• A curative petition is entertained if it has been established that there has been a violation of the
principles of natural justice. Additional grounds of considering the petition is that he/she was not heard
by the court when passing the judgement.
• The curative petition is circulated to a Bench consisting of the three senior-most judges, and the judges
who had passed the original sentence if possible. When and only a majority of the judges decided that
the matter needs a hearing, can the petition be listed before the same Bench.
• Should a request for an open-court hearing be made, then such a hearing is allowed, but a curative
petition is usually decided by judges in the chamber.
• If the petition lacks any grounds for reasonable consideration then the court could impose “exemplary
costs” on the petitioner.
Rupa Ashok Hurra v. Ashok Hurra
Citation: AIR 2002 SCC 388
Court: Supreme Court of India

• Facts of the case: The facts of the case deal with matrimonial discord
between husband and wife who have been separated for a period of years.
• The case reached the Supreme Court because the women withdrew her
consent which was given through divorce with mutual consent.
• The question of validity of decree of divorce was contested by the parties.
• In this matter, substantial question of law arose and it was that if an
aggrieved person is entitled to any relief against a final judgment or order
of the Supreme Court, after dismissal of Review Petition, either under
Article 32 or otherwise
Judgment
• A 5 judge bench of Justice S.P. Bharucha, and his companion justices, Justice S.M. Qadri,
Justice U.C. Banerjee, Justice S.N. Variava and Justice S.V. Patil delivered a landmark
judgement that opened a new dimension in the justice delivery system of this country. While
delivering the judgment, it was stated by the court that certainty of law cannot be at the cost
of justice.
• It was observed by the court that “to prevent abuse of its process and to cure a gross
miscarriage of justice, may re-consider its judgments in exercise of its inherent power.”
• The court ruled that even after a review petition filed under Article 137 is rejected, the court
may still review the case under its inherent power on very restricted grounds.
• Violation of principal of natural justice, question of judicial bias , abuse of the process of
court are some relevant grounds by which curative petition may be moved.
• An exhaustive list of grounds could not be enumerated due to the impossibility of foreseeing
all possible circumstances. However, the court imposed several conditions that are to be
followed while moving a curative petition.
• In paragraph 52 of the said judgment, the Supreme Court carved out
the following conditions to be fulfilled by a party who wishes to file
curative petition:
1.the petitioner must state that the grounds mentioned in curative were
taken in review petition;
2.the review petition was dismissed by circulation; and
3.a certificate by a senior advocate with regard to the fulfillment of
above requirements.
• To give effect to this judgment of the Supreme Court especially with regard to
the pre-conditions for filing curative petition, the Supreme Court Rules were
amended in the year 2013 and an attempt was made to incorporate the provision
of curative petition by way of Order 48. Order 48 of the Supreme Court Rules,
2013 lays down the pre-conditions for registration of a curative petition:
1.that the grounds mentioned in curative were taken in the review petition;
2.that the review petition must be dismissed by circulation;
3.the curative petition shall be accompanied by a certificate of a Senior Advocate
that the petitioner meets the aforesaid requirements; and
4.a certificate by the Advocate-on-Record to the effect that it is the first curative
in the impugned matter.
• Finality clause are provided by the statute to declare that a decision by any agency
“shall be final”.
• In the landmark judgement of R. v. Medical Appeal Tribunal, ex p. Gilmore the appeal court held
that the decision made by administrative authorities if made final might lead to no corrections in
the errors made by the inferior tribunals as it will be immune from the attack by superior courts
by means of certiorari.
• This case establishes a supervisory jurisdiction on the decision made by the administrative
tribunals in finding of law. It further laid down that the decision of the inferior tribunals is not
immune from the jurisdiction of the superior courts where it is expressed to be “final”.
• Lord Denning observed that the finality clause is included in the statute on the presumption that
the tribunal will take the law into consideration while deciding a case.
• The decision given by the administrative tribunal can only be final upon finding of the facts and
not the question of law.
• Thus, it was laid down that this clause can only be invoked and will only be effective when the
question of fact is challenged.
• The courts are furthermore allowed to review the decision of the tribunals based on the excess of
jurisdiction and when there is error on the face of record.
• However, if for instance there is a “mixed questions of law and facts” and the court cannot
possibly separate the two and figure out where the question of law lies, in such cases, the decision
given by the administrative tribunal should be taken as final and conclusive.
• The courts justify reviewing the question of law in the decision given by the administrative tribunal
on the ground that such error in the implementation of law might lead to miscarriage of justice.
OUSTER CLAUSES

Administrative Finality and Ouster Clauses

Not applicable in totality in India

All orders are in spirit subjected to judicial review

Principles of natural justice and rule of law are paramount