Chapter-1: Introduction

Basic purpose of judicial review is to enforce constitutionalism and to guard against

majoritarianism. Thus an important aspect of public law review is not only the enforcement of
private rights but to keep the administrative and Quasi administrative machinery within proper
control. This aspect of public law review was rightly stressed by the Supreme Court in S.L
Kapoor V Jagmohan1. In this case two non-official members of the new Delhi Municipal
Committee had filed a petition before the supreme court under Article 136 against the
governmental action of superseding the Municipal committee without complying with the
principles of natural justice. During the pendency of the case, the term of office of the petitioners
expired. It was argues that since the petition has become in fructuous, the court has no power to
continue with the appeal. Rejecting the contention the Apex Court can still decide the issue of
public importance, the court can still decide the issue even in the face of loss of attending of the
petitioners.

The administrative law is that branch of law that keeps the governmental actions within the
bounds of law or to put it negatively, it prevents the enforcement of blatantly bad orders from
being derogatory. The Courts have constantly tried to protect the liberties of the people and
assume powers under the Constitution for judicial review of administrative actions. The
discretionary powers have to be curbed, if they are misused or abused. The socio-politic
Institution need not cry, if the courts do justice and perform the substantial role. That is the
essence of justice. It is submitted, the trend is to read the social justice and to translate in reality.
The welfare State has to discharge its duty fairly without any arbitrary and discriminatory
treatment to the people in the country. If such powers come to the notice of the Courts, the courts
have raised the arms consistently with the rule of law. Today the Government is the provider of
social services; new form of property like jobs, quotas, licenses and mineral rights etc. The
dispenser of special services cannot therefore act arbitrarily. Courts laid the standard of
reasonableness in Governmental action.

1
(1980)ILR 1Delhi263

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 Research Methodology
This research is descriptive and analytical in nature. Secondary and electronic resources have
been largely used to gather information and data about the topic.

Books and other reference as guided by the faculty have been primarily helpful in giving this
project a firm structure. Websites, dictionaries, articles and cases have also been referred.

Objectives-

 To study about the meaning of writ of certiorari and writ of prohibition.

 To study about the grounds for the issue of writs.

Nature of Study- the nature of study of the present project is Doctrinal, as it is based on the
earlier judgments and Legal Maxims of Law.

Sources of Data- Mostly Primary Sources of data were used in making this project. Primary
Sources so used include judicial decisions. Some Secondary Sources are also used in making this
project, which includes Books.

Limitations- The project is focused only on the writ of certiorari and writ of Prohibition as
mechanism of administrative control.

Contribution- The Study of the present Case helps us to know about the role of writ of
certiorari and writ of prohibition.

Review of Literature

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Literature Review is the documentation of a comprehensive review of the published and
unpublished work from secondary sources of data in the areas of specific interest to the researcher.
It is an extensive survey of all available past studies relevant to the field of investigation. It gives
us knowledge about what others have found out in the related field of study and how they have
done so.

After an extensive survey of available past studies relevant to the field of investigation, it has been
tried to accumulate the knowledge about what others have found out in the related field of study
and how they have done so. They have helped immensely in gaining background knowledge of the
research topic, in identifying the concepts relating to it, potential relationships between them and
identifying appropriate methodology, research design, methods of measuring concepts and
techniques of analysis, and also in identifying data sources used by other researchers.

The following literature has helped me in preparing of this research project-

C. K. Takwani, Lectures on Administrative Law, Eastern Book Company (5th ed. 2012) - The
learned authors work talks about the fundamental principles of Administrative Law and how they
have developed through judicial process. The book helped me to find out about the multiple
functions performed by the executive.

M. P. Jain and S. N. Jain, Principles of Administrative Law, LexisNexis (7th ed. 2008) – The
learned authors work gave me an insight about the meaning and grounds for isuue of writ of
certiorari and writ of prohibition.

Dr. Rega Surya Rao, Lectures on Administrative Law, Asia Law House Publications (2nd ed.
2015) - the learned authors work helped me to know about the reasons for the growth of
Delegated Legislation and its advantages and disadvantages.

Chapter -2

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 Chapter-2
Origin of Writs
The origin of writs can be drawn from the English Judicial system and were created with
development of English folk courts-moots to the common law courts. The law of writs has its
origin from the orders passed by the king ‘Bench in England. Writs were issued on a petition
presented to the king in council and were considered as a royal order. Writs were a written order
issued in the name of the king which acted as groundwork for the subsequent proceedings.

Historical Background
The origin of writs in India goes back to the Regulating Act, 1773 under which Supreme Court
was established at Calcutta. The charter also established other High courts and these High courts
had analogous power to issue writs as successor to the Supreme Court. The other courts which
were established subsequently did not enjoy this power. The writ jurisdiction of these courts was
limited to their original civil jurisdiction which they enjoyed under section 45 of the Specific
Relief Act, 1877

What is the meaning of Writ of Certiorari?

Certiorari is a Latin term being in the passive form of the word ’Certiorare’ meaning to inform it
was a royal demand for information. Certiorari can be described as “one of the most valuable and
efficient remedies.”Certiorari is one of the five prerogative writs adopted by the India
constitution under Article 226 which would be enforced against the decisions of the authority
exercising judicial or quasi judicial powers. Such powers are exercised when the authorities have
failed to exercise the jurisdiction thought vested in it or failed to exercise the jurisdiction though
vested on him or to correct the apparent error on the face of record or there is violation of the
principle of natural justice. An instance showing the certiorari powers was exercised by the
Hon’ble Supreme Court in A.K. Kraipak v. Union of India2, Where the selection was challenged
on the ground of bias. The Supreme Court exercising the powers issued the writ of certiorari for
quashing the action.

2
AIR 1970 SC 150

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Grounds for the issue of writ of Certiorari

Certiorari can be issued on any of the following grounds:

1. Lack of jurisdiction.- Lack of jurisdiction refers to such situations where the authority has
no jurisdiction at all to take action.

Such situations may arise:

a) If the authority is improperly constituted.

b) If the authority commits an error in its decision on jurisdictional facts and thereby assumes
jurisdiction which never belonged to it.

c) If the authority is incompetent to take action in respect of a locality, party or subject-matter.

d) If the law which gives jurisdiction is itself unconstitutional.

Notable instances

(i) Rafiq Khan v. State of U.P3- Section 85 of the U.P Panchayat Raj Act, 1947 gave power to the
Sub-Divisional Magistrate either to Quash the entire order of the panchayat adalat or to cancel its
jurisdiction. The SDM had no power to modify the order in any manner. The court issued the
writ of certiorari to quash the decision of the SDM where he modified the conviction passed by
the panchayat adalat by quashing the conviction of the accused for one offence and maintaining
it in respect of the other offence.

2. Excess of jurisdiction-Excess of jurisdiction refers to cases where the authority has jurisdiction
but it exceeds its permitted limits.

(i) J.K Choudhari v. R. K. Datta4 Gupta is illustrative of this aspect. In this case, the governing
body of a college affiliated to the Gauhati university dismissed its Principal, Datta Gupta, on the
ground of misconduct. The Executive committee of the gauhati University after hearing
representation ordered reinstatement.

3
AIR 1981 SC 96
4
AIR1958SC722

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3. Abuse of jurisdiction – Certiorary will also lie to quash an action where the authority has
jurisdiction but has abused it. An authority shall be deemed to have abused its jurisdiction when
it exercises its power for an improper purpose, or on extraneous considerations, or in bad faith,
or leaves out a relevant consideration, or does not exercise the power by itself but at the instance
and discretion of someone else.

4. Violation of the principles of natural justice – Principles of natural justice have been
discussed in detail .These principles include;

a) Rule against bias –Bias may include- Personal bias, Pecuniary bias, subject-matter bias,
Subject-matter bias.

b) Rule of audi alteram partem- This right fair hearing may include- Right to know adverse
evidence, Right to present case, right to rebut evidence.

Notable instances

i) State of Punjab v. K. R. Erry5 -In this case the pension benefits of an Assistant Engineer, PWD
were reduced on the basis of an adverse confidential report without giving him a hearing. The
court issued certiorari to quash the decision on the grounds of violation of the principles of
natural justice.

5. Error of law apparent on the face of the record –It is well-settled that certiorari will be
issued to quash decisions which though made within jurisdiction reveal on the ‘face of the
record’ an error of law.

What is the meaning of Writ of Prohibition?

The Writ of Prohibition is issued by the court exercising the power and authorities from
continuing the proceeding as basically such authority has no power of jurisdiction to decide the
5
AIR 1973 SC 834

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case. Prohibition is an extra ordinary prerogative writ of a preventive nature. The underlying
principle is that ‘prevention’ is better than cure’ In East India Commercial Co. Ltd v. Collector
of Customs6. A writ of prohibition is an order directed to an inferior tribunal forbidding it from
continuing with a proceeding therein on the ground that the proceeding is without or in excess of
jurisdiction or contrary to the laws of the land, statutory or otherwise.

Grounds for the issue of Prohibition

Prohibition can be issued on the same grounds on which certiorari can be issued except in case of
error of law apparent on the face of the record .The grounds for the issue of Prohibition are:

(i) Lack of excess of jurisdiction.

(ii) Violation of principles of natural justice.
(iii) Infringement of Fundamental rights.
(iv) Fraud.

In India, prohibition is issued to protect the individual from arbitrary administrative actions. In
Munnusamappa & Sons v. Custodian, Evacuee Property- the Custodian, after accepting the
petitioners as tenants of the evacuee property and after accepting rent for five months, purported
to proceed against them as if they were in permissive possession.

It is an efficacious and speedy remedy where a person does not desire any other relief except to
stop the administrative agency. An alternative remedy does not bar the issue of this writ.

Chapter -3

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AIR 1962 SC 1893

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Constitutional provisions

The makers of the Constitution have adopted the English remedies in the Constitution under
Articles 32 and 226. There has been specifically made provisions in the Constitution which
empowers the Supreme Court and High Courts to issue writs in the nature of Habeas Corpus,
Mandamus, Prohibition, Quo Warranto and Certiorari. The fundamental rights which are
inalienable sacrosanct in nature and character which were conceived in national and public
interest could be illusory if there is no constitutional machinery provided for its enforcement.
Unless such constitutional remedies for its enforcement is not provided the rights guaranteed by
part III of the Constitution cannot be ever implemented by the citizens. Article 32 contained in
Part III is itself a fundamental right given to the person under the Constitution. Similarly Article
226 of the Constitution is conferred on the High Courts to exercise its prerogative writs which
can be issued against any person or body of person including the government. The distinction
between the two remedies is very negligible. The remedy under Article 32 is confined to
enforcement of fundamental rights whereas Article 226 is available not only against the
enforcement of fundamental rights but also for any other purpose. Thus the constitution provides
the discretionary remedies on the High Court and the Supreme Court. In the absence of the
provisions of such remedies no one can enforce its rights given. Thus wherever there is a right
there must be a remedy for it. Thus it should satisfy the maxim, ‘ubi jus ibi remedium.’

One of the principle makers of the constitution, Dr. Ambedkar has given the prime importance to
Article 32 among all other articles from the Indian Constitution. He has referred that, “It is the
very soul of the Constitution and the very heart of it.”

Role of writs in administrative actions

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Now as far as the role of the writs is concerned, let us go by illustration over the cases on
discretion. Conferment of discretionary powers has been accepted as necessary phenomena of
modern administrative and constitutional machinery. Law making agency legislates the law on
any subject to serve the public interest and while making law, it has become indispensable to
provide for discretionary powers that are subject to judicial review. The rider is that the Donnie
of the discretionary power has to exercise the discretion in good faith and for the purpose for
which it is granted and subject to limitations prescribed under the Act.

The Courts have retained their jurisdiction to test the Statute on the ground of reasonableness.
Mostly, the courts review on two counts, firstly whether the statute is substantively valid piece
of legislation and, secondly whether the statute provides procedural safeguards.

Beside this, Courts control the discretionary powers of the executive government being exercised
after the statutes have come to exist. Once they come into existence, it becomes the duty of the
Executive Government to regulate the powers within limitations prescribed to achieve the object
of the Statute. The discretionary powers entrusted to the different executives of the Government
play substantial role in administrative decision making and immediately the settled principles of
administrative law trap the exercise of powers. If these discretionary powers are not properly
exercised, or there is abuse and misuse of powers by the executives or they take into account
irrelevant consideration for that they are not entitled to take or simply misdirect them in applying
the proper provision of law, the discretionary exercise of powers is void.

The role of writs is also sensibly laid down in a famous Padfield’s case: In England in earlier
days the Courts usually refused to interfere where the Government or the concerned officer
passed what was called a non-speaking order, that is, an order which on the face of it did not
specify the reasons for the orders. Where a speaking order was passed the Courts proceeded to
consider whether the reasons given for the order or decision were relevant reasons.

CONCLUSION

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Through this project I came to know that on what circumstances the prerogative powers of writ
jurisdiction conferred by the constitution for judicial review of administrative action is
undoubtedly discretionary and yet unbounded in its limits. The discretion however should be
exercised on sound legal principles. In this respect it is important to emphasis that the absence of
arbitrary power is the first essential of the rule of law upon which the whole constitution system
is based. In a system governed by rule of law when discretion is conferred upon the executive
authorities it must be based on clearly defied limits. Thus the rule of law from this point of view
means that the discretion or the decision must be based on some principles and rules. In general
the decision should be predictable and citizens should know where he is. If a decision is taken
not on the basis of any principle or rules then such decision is arbitrary and is taken not in
accordance with the rule of law.

Bibliography

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 C. K. Takwani, Lectures on Administrative Law, Eastern Book Company (5th ed. 2012)

 M. P. Jain and S. N. Jain, Principles of Administrative Law, LexisNexis (7 th ed. 2008)

 Surajan Chakravarti, Administrative Law, State Mutual Book & Periodical Service, Limited (2nd

ed. 1988)

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