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WRIT JURISDICTION OF THE SUPREME COURT AND HIGH COURTS
The Constitution of India confers various rights upon the people- citizens as well as non-citizens. The most important of these rights are those contained in Part III of the Constitution which guarantees a number of Fundamental Rights. A right without a proper and efficacious remedy would be meaningless; consequently the Constitution not only confers rights but also provides for remedies in case of their infringement. This article is concerned with the remedial aspects of our constitutional rights. The most common, quick, inexpensive and effective remedy for the purpose is provided in Articles 32 and 226 under which the Supreme Court of India and various State High Courts respectively have been empowered to issue writs. The said services related to the Indian constitutional laws are provided by Indian constitutional lawyer who is well versed with all the issues related to the Indian constitution. The writ jurisdiction of the Supreme Court and the High Courts is often referred to as the extraordinary jurisdiction and may be examined under the following heads:
I. Historical background of writs in English Law.
II. Broad principles of English Law to be followed in India.
III. Locus standi.
IV. Against whom writs may be issued.
V. Writ Jurisdiction of the Supreme Court.
VI. Writ Jurisdiction of the High Courts.
VII. Suspension of remedy by way of writs.
XI. Habeas Corpus.
XII. Quo Warranto.
I. HISTORICAL BACKGROUND OF WRITS IN ENGLISH LAW
The five writs specifically mentioned in Articles 32 and 226 originated in English Law and are known as highly prerogative writs. They were issued exclusively from the Court of Kingâ€™s Bench. The sole object or purpose of issuing these writs in English Law was to exercise general superintendence over due observance of laws by officials and authorities (whether performing judicial, quasi-judicial or non-judicial functions). Being outside the course of ordinary law, these writs were known as extraordinary Remedies resorted to only in cases of urgent necessity. The writs, however, were never issued against the King.The purpose of the Constitution of India in conferring power to issue these writs upon the Courts is explained by the Supreme Court in the following words:
‘The makers of the Constitution having decided to provide for certain basic safeguards for the people in the new setup, which they call the Fundamental Rights, evidently, though it necessary to provide also a quick and inexpensive remedy for enforcement of such rights and, developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, new and wide powers on the High Courts of issuing directions, orders of writs, primarily for the enforcement of Fundamental Rights, the power to issue such directions, â€œfor any other purposeâ€ being also included.’
Prior to the inauguration of the present Constitution in 1950, only the three Presidency High Courts of Calcutta, Madras and Bombay had the power to issue writs. The power was of a very limited nature. Now under the Constitution, all the High Courts stand on the same footing in the matter of issuing writs. Apart from the High Courts, the Supreme Court of India also possesses the power to issue writs under Article 32 for the enforcement of Fundamental Rights.
II. Broad Principles of English Law to be followed in India
It may be noted that the Constitution simply mentions the five English prerogative writs in Articles 32 and 226 without throwing any light as to what these writs in fact mean and what procedure is to be followed in the matter of issuing such writs. In the absence of any express provision in the Constitution or any other law the Courts had, of necessity, to look into and follow the principles governing the grant of such writs in England. An examination of English Law would reveal that in the course of time the prerogative writs had become highly technical like the erstwhile Forms of Action and the Courts of Kingâ€™s Bench was at times put in an embarrassing position. It is with a view to avoid the technical considerations attending these writs in English Law that our Supreme Court and the High Courts have been endowed with wide powers under Articles 32 and 226 â€œto issue any directions or orders or writs including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari…..â€
Delivering the unanimous judgment of the Supreme Court in T.C. Bassappa v. T. Naggappa, Mukherji J. observed:
In view of the express provision in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English Law, nor did feel oppressed by any difference of opinion express in particular cases by English Judges. We can make an order or issue a writ in the nature of Certiorari in all appropriate cases and in appropriate manner as long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English Law.
By and large the Courts in India have accepted the above position and in deciding cases, have followed the broad and fundamental principles of English Law governing these writs but avoiding technicalities.
The above account clearly shows that the power of the Supreme Court of India and the State High Courts in the matter of issuing writs is much wider than that of the Kingâ€™s Bench Division of the High Court of Justice in England and as will be noted later the power of the High Court is even wider than that of the Supreme Court.
It may, however, be noted that writ jurisdiction of the Supreme Court and High Courts under Articles 32 and 226 respectively is supervisory and visitorial. It is never appellate, revisional, advisory or consultative. It may be further be pointed out that the writ jurisdiction is prospective and not retrospective and so matter that had long ago attained finality before the Constitution cannot be affected by resort to Articles 32 and 226.
III. LOCUS STANDI
When a person applied for writ, the first question which the Court has to consider is whether he has any locus standi or interest in the case. If he has none then the writ shall not be granted. In other words, the general rule governing issuance of writs is that it is only the aggrieved person who can apply for a writ under Article 32 or 226. Where, therefore, there is no infringement of the rights of the petitioner and consequently there is no case of enforcement of any right, the Supreme Court or the High Courts cannot give a bare declaration of right under the cover of proceedings under Articles 32 and 226.There are, however, some well recognized exceptions to this general principle. In a Habeas Corpus petition, not only the person in detention or imprisonment but any person interested in him, e.g. next friend or next of kind not being an utter stranger can apply. Similarly the writ of Quo Warranto also admits of relaxation or modification in appropriate cases. Now the concept of Public Interest Litigation has further liberalized this concept in view of the public interest involved in any matter.
The requirement of locus standi came into being to restrict the remedy of high writs only to aggrieved persons. If the right to apply for writs was not so restricted, the judicial machinery would have become available to professional litigants so as to enable them to interfere in matter that do not even remotely concern them. At the same time the law wishes people to be vigilant. They should not tolerate any encroachment upon public rights. They should be encouraged to come forward and present to the judiciary complaints about violation of welfare schemes. They will be covered under the head of â€œpublic welfare litigationâ€. The complainantâ€™s only locus standi is that he is a member of the public. There need be no personal aggrievement. A person was allowed to challenge the opening of a bone factory as it would have bedeviled the life of the local residents. A class action also falls within the category of public interest litigation. The richshaw-pullers of the State of Punjab secured an order from the Supreme Court if the State wants that rickshaws should be owned only by those who are licensed to drive, it must provide money to enable them to own their vehicles. The Supreme Court has gone to the extent of entertaining a post card as a writ petition and thereby to secure due benefits to unorganized labour. In Peopleâ€™s Union for Democratic Rights v. Union of India, the Supreme Court allowed a human rights organization to seek an order directing the State to give the protection of labour laws, such as payment of minimum wage, to the construction labour engaged in the preparations for Asian Games. In another case, the Supreme Court allowed a writ and issued directions to be followed so as to prevent malpractices and trafficking in children in connection with adoption of Indian children by foreigners living abroad.
In the matter of public interest litigation it is not necessary that a petitioner should himself have a personal interest in the matter. The Supreme Court has held that where a person does not submit any books before the Selection Board, he can challenge the constitution of the Board. A person who has submitted his books, even he does not lose his right to challenge.
Commenting upon this liberal approach Krishna Iyer J. observed:
The narrow concept of â€˜cause of actionâ€™ and â€˜person aggrievedâ€™ and individual litigation is becoming obsolescent. Whether the petitioners belong to a recognized union or not the fact remains that a large body of persons with a common grievance exists and they have approached the Supreme Court under Article 32. Our current jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people oriented and envision access to justice through â€œclass actionsâ€, â€œpublic interest litigationâ€ and â€œrepresentative proceedingsâ€.
A registered society, which is a non-political and non-profit-making voluntary organization, has an unquestionable locus standi to espouse the cause of old and infirm pensioners.
IV. AGAINST WHOM WRITS MAY BE ISSUED
1. Writs against Government
Clause (1) of Article 226 while conferring power upon the High Courts to issue writs expressly provides that the writs may be issued against any person or authority including in appropriate cases, any Government. Therefore, if the occasion demands, the High Court will not be lacking in power to issue writs against Government. Can we say the same thing as regards writ jurisdiction of the Supreme Court under Article 32. Admittedly Article 32(2) which corresponds to Article 226(1) is differently worded and makes no express mention as to whether Supreme Court can issue writs against Government. But there is no prohibition in Article 32(2) that the writs cannot be issued against Government. Being the highest court of the land, it would be absurd to hold that the Supreme Court cannot issue writs against Government although the High Courts, possesses power to issue writs in appropriate cases against any Government. Writs used to be issued by the King against defaulting officials. In the course of history that power came to be vested in the judiciary. Now it is a part of the judicial function to rectify official defaults. Hence, it was too obvious and need not have been expressly mentioned that writs are an expeditious and effective judicial tool to hold the Government and its functionaries to the performance of their official duties in the right spirit. No wonder, the bulk of writ petitions is against the Government malfunctioning.
Writ jurisdiction is now available even against private persons and private institutions if and to the extent to which their operations are likely to cause public consequences, e.g., a person or business house causing pollution can be directed under a writ petition to remove the causes of pollution.
2. Writs against bodies or authorities situated outside the territorial jurisdiction of High Court.
We shall next examine the restriction on the power of the Courts to issue writs on territorial grounds. It is evident that the Supreme Court has power to issue writs throughout the territory of India. What is of greater consequences is the fact that the Supreme Court can issue writs even outside the territory of India, provided, of course, the person or authority against whom the writ is sought, is subject to the control of the Government of India.
As regard the High Courts the position originally was that they could issue writs only within their territorial jurisdiction and not outside. This created difficulty in some cases particularly in relation to election disputes which were ultimately disposed of by the Election Commission situated at New Delhi. The High Court lacked the power to issue writs against the Election Commission, since it was situated outside the territorial jurisdiction and the Supreme Court could not issue the writs since there was no violation of the Fundamental Rights guaranteed in Part III of the Constitution. This certainly did not mean that the Election Commission or for that matter any body or authority including the Union Government which had its seat in New Delhi, was immune from writ jurisdiction. The only High Court in India which could issue writs in these circumstances was the Punjab High Court. This was so because that High Court alone exercised territorial jurisdiction over Delhi and consequently it was competent to issue writs against the Election Commission and other authorities situated in Delhi. Fortunately, there was at that time a Circuit Bench of the Punjab High Court sitting at Delhi, and this had to some extent eased the situation. But there is no denying the fact that the lack of power in the State High Courts had caused to the litigants untold misery, inconvenience and avoidable expenditure involved in travelling up to Punjab or Delhi from remote parts of the country. This situation ultimately led to the enactment of the Constitution (15th Amendment) Act, 1963, by which Article 226 was amended so as to insert a new clause (1-A) which reads [now Article 226(2)]:
The power conferred by clause (1) to issue direction, orders or write to any Government, authority or person, may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action wholly or in part arises for the exercise of such power, not withdrawing that the seat of such Government or authority or the residence of such person is not within those territories.
Thus as a consequence of the amendment in 1963, the High Courts now can issue writs to bodies or authorities situated outside its territorial jurisdiction, provided of course the cause of action in whole or in part arises within its territorial jurisdiction.
Similarly, where the claim of an ex-legislator for pension was against the State of Himachal Pradesh, but the petition was filed before the Punjab and Haryana High Court, the dismissal of the petition was upheld by the Supreme Court. The petitioner’s constituency was a part of the undivided Punjab but after division it fell in Himachal Pradesh. The denial of pension was by the H.P. Government. No part of the cause of action had arisen within the territorial jurisdiction of the Punjab and Haryana High Court.
3. Writs against Legislature
Let us now examine if writs can be issued against Legislatures in India. The primary function of Legislatures is to make laws and in doing so if there is any irregularity of procedure in any House or Houses of Legislature, the same cannot be questioned in any Court of Law. Clause (1) of Article 122 provides:-
The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.
A similar provision exists in Article 212(1) with respect to State Legislatures. In view of the provisions in Articles 122 and 212, the writ jurisdiction of the Supreme Court and the High Courts stands curtailed to some extent. Thus in an early case, the Allahabad High Court held that no writ can be issued by a High Court against the Legislature on the ground of irregularity of procedure or to prevent a House from considering a Bill pending in Legislature which is alleged to be unconstitutional. But where the proceedings are not merely irregular but clearly illegal or unconstitutional, the High Court of Calcutta has held that it shall be within judicial competence to issue a mandate upon the Legislature. Again where a person, who is not a member of the House, is detailed by the order of the House for its contempt, he can move the High Court for Habeas Corpus under Article 226. The Legislatures in India do not become immune from writ jurisdiction of the High Court just by issuing an unspeaking warrant. An unspeaking or general warrant is that which does not disclose the reasons for the order.
4. Can Supreme Court issue Writ against High Court
In Naresh Shridhar Mirajkar v. State of Maharashtra, the facts were as follows:
An article was published in the Blitz Weekly under the caption “Bigger than Mundra”. This was defamatory of one Mr. Thackersey and he brought a suit for defamation against the Editor or Blitz which was being tried on the original side of the Bombay High Court by Justice Tarkunde. One Gowda was produced by the Editor of Blitz as a defence witness. During the course of deposition it appeared that he had turned hostile and consequently a prayer was made by the counsel of the editor that he may be permitted to cross-examine the witness and the same was permitted. After his deposition had concluded and he had gone, an application was made that the witness may be recalled for further cross-examination and this being allowed, Gowda appeared again before the Court. This time his counsel made an oral request to the presiding officer that the earlier deposition of his client was briefly reported in various English Dailies like Indian Express, Times of India etc., but was given full reporting in the Blitz and this adversely affected the business of his client. He accordingly prayed that the deposition may be allowed to be made in camera or at least the same may be prohibited from publication. Accordingly, Tarkunde J. passed an oral order prohibiting publication of the depositions of the witness. Naresh Shridhar Mirajkar, who was a correspondent of the Blitz filed a writ petition in the Supreme Court under Article 32 alleging that the oral order of Tarkunde J. violated his fundamental right to freedom of speech and expression under Article 19(1)(a). He prayed that the same may be quashed by the Supreme Court by issuing the writ of Certiorari.
The Supreme Court held that judicial orders passed by a High Court cannot be held to violate fundamental rights and hence they cannot be attacked in writ petition filed in Supreme Court under Article 32.
V. WRIT JURISDICTION OF THE SUPREME COURT
The writ jurisdiction of the Supreme Court is provided in Article 32 and may be examined under the following heads:
(1) Territorial Jurisdiction.
(3) The power of Supreme Court to issue writs concurrent with that of the High Courts.
(4) Nature of right to remedy under Article 32.
1. Territorial Jurisdiction
The Supreme Court can issue writ throughout the territory of India. The court can also issue a writ even outside the territory of India provided the body or authority against which it is issued is subject to the control of the Government of India.
It may be noted that the writ jurisdiction of the Supreme Court under Article 32 is confined to enforcement of fundamental rights only. The writ jurisdiction of the High Courts is rather wide in as much as they can issue writs under Article 226 for the enforcement of the fundamental rights as well as for any other purpose. Article 139 empowers the Parliament by law to confer upon the Supreme Court the power to issue writs for purposes other than those mentioned in Article 32(2). Now law having been made so far, the power of the Supreme Court remains limited to issuing writs only for the enforcement of fundamental rights and for no other purpose.
3. The power of Supreme Court to issue writs is concurrent with that of the High Court
It will be seen that the power of the Supreme Court to issue writs for the enforcement of fundamental rights is not exclusive, but is concurrent with that of High Courts under Article 226. Thus in a case of violation of a fundamental right the aggrieved party is free to choose and decide whether to present his petition in a High Court or in the Supreme Court. In Ramesh Thappar v. State of Madras, there was an allegation of violation of a fundamental right and the aggrieved party presented his petition directly in the Supreme Court under Article 32. A preliminary objection as to maintainability of the petition was taken on the ground that the petitioner should have first presented his petition in the High Court under Article 226. In other words, the objection was that the petition under Article 32 could not be presented in the first instance in the Supreme Court. The Court overruled this preliminary objection and then proceeded to consider the case on merits.
4. Nature of the Right to obtain Remedy under Article 32
It is now proposed to examine as to what in fact the nature of the right (to remedy) is made available under Article 32. Granting that violation of a fundamental right has been proved to the satisfaction of the court, can a writ be claimed as of right? Stated differently it has to be seen whether the issuance of a writ by the Supreme Court under Article 32 is discretionary with the court or can it be claimed as of right. Before examining the nature of the right, it would be profitable to set out the exact text of Article 32(1). It reads:
The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
‘Appropriate proceedings’ in this clause have reference to clause (2) of Article 32 which mentions specifically the five writs, and remembering that the writ jurisdiction of Supreme Court is confined to enforcement of fundamental rights only, the clause may be shortened to read as –
The Supreme Court shall have power to issue directions or order or writs for the enforcement of any of the rights conferred by this Part.
In view of this emphatic language in Article 32(1) and also taking into account the fact that Article 32(1) confers not merely an ordinary legal right but a guaranteed fundamental right, it has been asserted in quite a few cases that as a general rule, the issuance of writs by the Supreme Court under Article 32 is not discretionary with the Court.
In K.K. Kochunni v. State of Madras, (the first Kochunni case), several preliminary objections were taken against maintainability of the petition under Article 32. After disposing of the objections in this preliminary judgment, the Court proceeded to consider the case on merits and the final judgment was given later.
The first preliminary objection was that the petitioner had an alternative remedy open to him, where he could seek redress. The Supreme Court held that the remedy under Article 32, being a fundamental right, the existence of an alternative remedy (even though it may be adequate) could not per se, be a good and sufficient ground for throwing away a petition under Article 32, if the existence of a fundamental right and a breach actual or threatened of such right is alleged and is prima facie established in the petition. Yet another preliminary objection taken against the maintainability of the petition was that in proceedings under Article 32, the court could not enter upon an inquiry into disputed questions of facts. The Supreme Court ruled that the fact, that the case involves disputed questions of facts will be precluding the court from entertaining the petition under Article 32. It pointed out, that questions of fact can and very often be dealt with an affidavits. In appropriate cases the court may be inclined to give an opportunity to the parties to establish their respective cases by filing further affidavits or by issuing a commission or even by setting down the application for trial on evidence. Such occasions, the court pointed out, would be rare indeed and that it should not be a cogent reason for refusing to entertain the petition under Article 32 on the ground that it involves disputed questions of facts.
Thus existence of an alternative remedy or the fact that the case involves disputed questions of fact, are matters of no consequence in a writ petition under Article 32. Writ jurisdiction provides an alternative remedy to the ordinary remedy. This Supreme Court has observed:
This is an alternative remedy provided by the Constitution in addition to but not in supersession of the ordinary remedy.
Further, it may be noted that a law, whether enacted by the Parliament or by State Legislature, which impairs the right conferred by Article 32(1) or the powers conferred by Article 32(2) shall be unconstitutional. Thus in A.K. Gopalan v. State of Madras, Section 14 of the Preventive Detention Act, 1950 was struck down by the Supreme Court on the ground that it violated both clauses (1) and (2) of Article 32.
Again, in Prem Chand Garg v. Excise Commissioner, U.P., the Supreme Court declared unconstitutional a rule of the court which required security (in terms of money) from petitioners before a writ petition could be presented in Supreme Court under Article 32. The court held that the said rule violated Article 32(1) and was, therefore, unconstitutional.
Exceptions to the Rule
Although the general rule as stated above is that the grant of writ by the Supreme Court under Article 32 is not discretionary, yet the Supreme Court has recognised two exceptions to it.
(a) Doctrine of Laches
In Tilak Chand Moti Chand v. H.B. Munshi, the Supreme Court refused to entertain a writ on the ground of unusual and inordinate delay which could not be satisfactorily explained. In the instant case, a petition under Article 32 was presented in which the principal question was whether the petition filed after a delay of nearly 10 years was liable to be dismissed on that ground and the court by majority (4 to 1) held that the petition should be dismissed. Hegde J, in his dissenting opinion, held:
I am firmly of the view that a relief asked for under Article 32 cannot be refused on the ground leaches.
In Rabindra Nath Bose v. Union of India, certain officers of the Income Tax Department filed a writ petition in the Supreme Court under Article 32. They contended that their seniority fixed in 1953 in accordance with the Seniority Rules of 1952 violated their fundamental rights guaranteed under Articles 14 and 16 of the Constitution. The writ petition was filed after a delay of 15 years, but it was strongly contended that in as much as Article 32 was itself a guaranteed Fundamental Right, the petition under Article 32 could not be thrown away on the mere ground of delay. The petitioners also urged that Tilok Chand’s case was wrongly decided and needed review. Rejecting the petition the Supreme Court held :
After carefully considering the matter we are of the view that no relief should be given to petitioners who, without any reasonable explanation, approach this court under Article 32 after inordinate delay. It is said that Article 32 itself a guaranteed right. So it is, but it does not follow from this that this court should discard all principles and grant relief in petitions filed after inordinate delay and such delay cannot be satisfactorily explained by the petitioners.
Where a petition was filed in 1979 to challenge the validity of promotions effected in the period 1968-1975, it was dismissed being unreasonably belated.
It will thus be seen that the Supreme Court under Article 32 is not going to entertain stale claims. But this rule is only a rule of discretion and not a rule of law. The law on this point is nicely summed up by Hidayatullah C.J.:
Article 32(1) guaranteeing the right to move the Supreme Court merely keeps open the door of this court; the State cannot place any hindrance in the way of an aggrieved person seeking to approach this court. Having reached this court the extent or the manner of interference is for the court to decideâ€¦.. The party aggrieved must move this court at the earliest possible time and explain satisfactorily all semblance of delayâ€¦.. The question is one of discretion for this court to follow from case to case. There is no lower limit and no upper limit. It will all depend on what the breach of the fundamental right and the remedy claimed are and when and how the delay arose.
Refusing to throw out a petition on the ground of delay Untwalia J. of Supreme Court observed as follows:
In a recent decision of this court Bhagwati J. delivering the judgement on behalf of the bench of 5 judges in Ram Chandra Shanker Deodhar v. State of Maharashtra, has said :
In the first place it must be remembered that the rule which says that the court may not inquire into belated and state claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion and there is no inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition. Each case must depend on its own facts..
The court held that on the facts and in the circumstances of the case, it did not feel persuaded to throw out the petition on the ground of delay as there was nothing to dis entitle the petitioner to claim relief.
There is no hard and fast rule of 90 days by way of period of limitation for filing a petition under Article 225 and Section 5 of the Limitation Act does not apply for the maintainability of petition. No such period of limitation can be laid down either under rules made by the High Court or by practice. In every case it would have to be decided on the facts and circumstances whether the petitioner is guilty of latches without taking into account any specific period of limitation. One such fact which has to be considered is shown by State of U.P. v. Bahadur Singh. The petition was against a decision under the Land Ceiling Law. In such cases there are no two parties. The Departmental Authorities may cause delay. This is a relevant consideration which must enter judicial verdict before rejecting such cases on the ground of delay.
In reference to television serials the Supreme Court has laid down the general principle that persons challenging the exhibition of any television serial on the ground of public morality or otherwise should approach the court as early as possible.
(b) Doctrine of Res Judicata
The second exception to the general rule that the Supreme Court jurisdiction under Article 32 is not discretionary is based upon the doctrine of res judicata enunciated in Section 11 of the Code of Civil Procedure, 1908.
It is now settled law that the general principle of res judicata embodied in Section 11 of the Code of Civil Procedure, 1908, applies to writ proceedings in the Supreme Court under Article 32. In S.M.S. Sharma v. Dr. S.V. Sinha (Second Search Light case), a petition had earlier been presented in the Supreme Court under Article 32 and was rejected. Thereafter another petition on the same facts and circumstances was again filed in the Supreme Court under Article 32. Rejecting the second petition, the Supreme Court held that the general principle of res judicata applied and the petition was, therefore, not maintainable. The same principle would govern the writ jurisdiction of High Courts under Article 226.
In Daryav Singh v. State of U.P., the position was somewhat different. Certain petitions alleging violation of fundamental rights to property had earlier been presented in the High Court and rejected. Subsequently fresh petitions on the same facts and circumstances were filed in the Supreme Court under Article 32. Rejecting all the petitions in this case, the Supreme Court held that the judgment and order of the High Court under Article 226 operated as res judicata and the petitions, therefore, were not maintainable. The prayer in the instant case related to the issuance of the writ of certiorari. The Supreme Court left open the question, if the same principle would govern the issuance of the writ of Habeas Corpus also. But soon thereafter the Supreme Court in Ghulam Sarwar v. Union of India, made an exception in favour of the writ of Habeas Corpus. Thus if a writ of Habeas Corpus is first presented in the High Court under Article 226 and Habeas Corpus and there it is rejected, a fresh petition of Habeas Corpus on the same facts and circumstances can be filed in the Supreme Court under Article 32 and will not be hit by the principle of res judicata. But it does not follow from this that the petitioner would have the right to move the Supre Court under Article 32 for the writ of Habeas Corpus more than once on the same facts. Successive petitions of Habeas Corpus, therefore, can neither be presented in Supreme Court under Article 32 nor in the High Court under Article 226. To this extent the principle of res judicata would still be applicable even as to the writ of Habeas Corpus.
The following additional points may be noted in connection with the application of the doctrine of res judcata in writ proceedings:
(i) Constructive res judicata – It has been held that the principle of constructive res judicata would apply to writ proceedings.
(ii) Dismissal in limine of a writ petition by a High Court – The principles laid down in Daryao Singh v. State of U.P., were further clarified by the Supreme Court in Virudhunagar Steel Rolling Mills Ltd. v. Government of Madras where the Court observed:
‘It is true that this court said in Daryao v. State of U.P. that if the writ petition is dismissed on merits after contest, it would bar a new petition under Article 32 on the same facts. But the later observations show that that was not the only case in which there would be a bar of res judicata. Even where notice (of writ petition) might not have been issued by the High Court (to the opposite parties) and the writ petition dismissed in limine, the question whether such dismissal would bar a petition under Article 32, would depend upon the nature of the order dismissing it in limine. Where, therefore, the writ petition is dismissed without notice to the other side, but the order of dismissal is a speaking order and the petition is disposed of on merits that would still amount to res judicata and would bar a petition under Article 32. The petitioner’s only remedy in such a case would be to come in appeal from such a speaking order passed on merits.
(iii) A writ petition which is filed in the High Court under Article 226, and is returned as withdrawn is not a dismissal on merits after contest and hence the principle of res judicata would not apply and it would not bar a fresh petition in the Supreme Court under Article 32.
(iv) Dismissal of a writ petition by a High Court on the ground that alternative remedy existed or due to latches would no bar to a petition under Article 32 on the same matter.
(v) The decision of a High Court on merits after contest on a certain matter in a writ petition under Article 226, would operate as res judicata and a subsequent regular suit with respect to the same matter and between the same parties would not be maintainable.
The same would be the position, if a writ petition is decided by the Supreme Court under Article 32.
VI. WRIT JURISDICTION OF HIGH COURTS
Writ jurisdiction of the High Courts is provided in Article 226 of the Constitution, and the same may be examined under the following heads:
1. Territorial jurisdiction.
3. Discretionary nature of the remedy.
4. Relief cannot be barred by statute.
1. Territorial jurisdiction
A High Court has the power to issue writs throughout the territory of the State in relation to which it exercises it jurisdiction. After the Constitution (15th Amendment) Act, 1963, writs can be issued even to bodies and authorities situated outside the territorial limits of the High Court, provided that the cause of action either in whole or in part arises within the State.
It has already been pointed out that the writ jurisdiction of the High Court under Article 226 is wider than that of the Supreme Court under Article 32, inasmuch as, the power of the Supreme Court is limited to enforcement of fundamental rights alone, whereas the power of the High Courts extends to issuing writs for the enforcement of fundamental rights as well as for any other purpose. It may be useful here to read the text of Article 226 which provides:
226. Power of High Courts to issue certain writs – (1) Notwithstanding anything in Article 32. Every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any one of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on or in any proceedings relating to, a petition under clause (1), without –
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard;
makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or as the case may be, the expiry of the said next day, stand vacated.
(5) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.
2. The power to issue writs is discretionary
Broadly speaking, writs mentioned in Article 226 cannot be claimed by the petitioner as of right. Whether or not a particular writ applied and prayed for is to be granted, is a matter solely dependent upon the discretion of the High Court. This certainly does not mean that the High Courts may or do exercise their discretion arbitrarily. In the course of time certain well-settled principles have come up which normally regulate the writ jurisdiction of the High Court. These principles are:
(a) Undue delay which cannot be explained to the satisfaction of the court (Doctrine of Laches)
(b) Futile writ
(c) Suppression of facts
(d) Disputed questions of fact
Undue delay which cannot be explained to the satisfaction of the court (Doctrine of Laches)
a) Undue delay which cannot be explained to the satisfaction of the court (Doctrine of Laches) – There is no limitation prescribed for the exercise of powers under Article 226 by the High Court. But as the power itself is discretionary, the High Court generally would not exercise its power in favour of a petitioner who has come to the Court after a considerable delay. No hard and fast rule can be laid down as regards the actual period which the High Court would consider as unreasonable. It will depend upon the circumstances of each case and also on the nature of the right of the petitioner which has been affected by the impugned order. Where an acquisition of lance was challenged by means of a writ petition more than two and a half years after the acquisition, the Supreme Court upheld the decision of the High Court in rejecting the petition.
b) Futile writ – If the writ applied for is not likely to serve any useful purpose, the Court may in its discretion reject the application on this ground. It is not the practice of the High Court to issue meaningless orders. Nor will the court certain a petition it is vexatious or prima facie unjust.
An illustration – The petitioners, who were lessee of liquor shops, filed an application under Article 226 to quash the order of the Commissioner which was confirmed by the Board of Revenue holding that the petitioners had not suffered any loss by shifting of the shops of the petitioners from the abadi site. Held, that relief claimed being one for damages or compensation for the alleged breach of the terms of a contract, was an incident of contract and the petitioners’ remedy was to institute a suit for recovering damages. The quashing of the order of the Commissioner of the Board would not give any relief to the petitioner. The High Court will not stultify itself by passing an order to which no effect can be given if the impugned order is set aside; it does not carry the petitioners anywhere.
Refund of Tax-money – It is, of course, true that writ jurisdiction can be made use of for securing an order for refund of tax-money paid under an Act which was either invalid or not applicable to the item taxed. If this is so, it is equally true that where the invalid Act has been validated by a subsequent Act and Validation Act has also been upheld by the Supreme Court; the State can claim review of refund orders passed under the invalid Act.
Threatened or imminent violation of Rights – Protection can be granted to a person by means of a writ against a threatened or imminent violation of his rights. Where a person has a provable apprehension of being imprisoned in violation of his rights, he can seek judicial protection, it being not necessary that he should be first be physically imprisoned. Actual confinement is, of course, a fact which attracts habeas corpus but threatened confinement can also do so. Whether there is a threat of that kind or not is to be determined on the basis of an alleged over act.
(c) Suppression of facts – If the petitioner is found guilty of suppressing material facts the writ petition under Article 226 is liable to rejected.
(d) Disputed questions of fact – The proceedings in a writ being of a summary nature, the court has neither the time nor the inclination to look into and decide disputed questions of fact, an may, therefore, refuse to entertain the petition on this ground. In one case the services of the petitioner were terminated and the question in dispute was whether or not he was made permanent before termination, and this being a question of fact, the High Court refused to entertain the petition. In another case the Supreme Court observed: “In the present case the High Court had transgressed its jurisdiction under Article 226 by going into the merits of the controversy by embarking upon an inquiry into the facts as to whether or not the letter of resignation submitted by the appellant was voluntary.” The Supreme Court also refused to look into the question whether the seizure of foodgrains under the Essential Commodities Act was lawful or in contravention of the Act.
3. Relief cannot be barred by Statute
The power of the High Court under Article 226 cannot be taken away by finality clauses in statutes. Thus despite an express provision in a statute providing that in respect of a particular matter specified therein, the decisions of a particular body or authority shall be final and conclusive and no proceedings in any court including the High Court under Article 226 shall lie, the jurisdiction of the High Court under Article 226 will not be ousted and a writ petition in the High Court in respect of that matter would still be maintainable.
VII. SUSPENSION OF REMEDY BY WAY OF WRITS
It has already been noted that clause (1) of Article 32 guarantees the fundamental right to move the Supreme Court for enforcement of a fundamental right. Clause (4) of Article 32 further provides that the said right cannot be suspended except as otherwise provided by the Constitution. Article 359 appearing in Emergency provisions of the Constitution expressly empowers the President of India, by order to suspend the enforcement of all or any of the fundamental rights guaranteed in Part III of the Constitution. Where, therefore, the President under clause (1) of Article 359, issues an order that the enforcement of a particular fundamental right shall remain suspended, no writ can be entertained by the Supreme Court under Article 32, for the enforcement of the fundamental right. The effect of Presidential order under Article 359(1) as, the Supreme Court declared in any court under any provision of law, which would have the effect of enforcing the fundamental right mentioned in the Presidential order. Thus writ jurisdiction of the High Courts under Article 226 will also be affected by the Presidential order. This was reiterated by the Supreme Court in Additional District Magistrate, Jabalpur v. Shiv Kumar Shukla, (popularly known as the famous Habeas Corpus case decided on April 28, 1976).
The Constitution was amended in 1978. Article 359 as thus amended and enforced from June 30, 1979, provides that the fundamental rights enshrined in Articles 20 and 21 would not be suspended by the Presidential order. They being beyond the reach of the Presidential order even during an emergency, the writ of habeas corpus would remain available to any detune that proves that he has been deprived of his liberty without observing the law and its procedure.
Certiorari is a Latin word. It is the passive for of the word ‘Certiorari’ meaning ‘inform’. It was essentially a royal demand for information; the King, wishing to be informed of some matter, orders that the necessary information be provided to him.
Certiorari is a command to an inferior court or tribunal to transmit the record of a cause or matter decided by it, to the superior court to be dealt with there and if the order is found to be without jurisdiction or bad in law, it is quashed. It may be noted that in certiorari proceedings the superior court merely quashes the order of the inferior court or tribunal and does not substitute its own order in place of the order that is quashed. It is for this reason that certiorari is often said to be destructive in nature. It merely destroys, and creates nothing. In appeal the order of the lower court or tribunal is examined on merits by the Appellate Court and it has the power to modify or reverse the order of inferior court or tribunal and substitute its own order instead, but in certiorari proceedings, the superior court does not examine the case on merits and therefore, it has no power to substitute its own judgment and pass a fresh order. The superior court exercises a limited jurisdiction and can only quash the order of the inferior court or tribunal if it is found bad in law.
2. Issue of Certiorari
It may further be noted the certiorari is issued only to question a judicial or quasi-judicial order. It is not issued to examine the orders passed by a body or authority performing purely administrative or ministerial functions. In T.C. Basappa v. T. Nagappa, the Supreme Court observed :
One of the fundamental principles in regard to the issuing of a writ of certiorari is that the writ can be availed of only to remove or adjudicate on the validity of judicial acts. The expression ‘judicial acts’ includes the exercise of quasi-judicial functions by administrative bodies or authorities or persons obliged to exercise such functions, and is issued in contrast with what are purely ministerial acts.
Certiorari can never be issued to call for the record or papers and proceedings of an Act or Ordinance and for quashing such Act or Ordinance. Certiorari is wholly inappropriate for challenging the constitutional validity of legislation.
In the ordinary course of things, the court does not interfere in transfer matter. They are linked with exigencies of administration. They are purely administrative in nature.
What is a Judicial Decision?
The characteristics of a judicial decision or act have been enumerated by the [English] Committee on Ministers’ Powers (1932) as follows:
A true judicial decision pre-presupposes an existing dispute between two or more parties, and they involve the following four requisites:
(i) the presentation (not necessarily orally) of their case by the parties to the dispute;
(ii) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties;
(iii) if the dispute between them is a question of law, by the submission of legal arguments by the parties; and
(iv) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of law of the land to the facts as found, including where required, a rule upon any disputed question of law.
The above test of judicial decision has been approved by the Supreme Court in Bharat Bank Ltd. V. Employees of Bharat Banks Ltd., and Maqbool Hussain v. State of Bombay.
What are quasi-judicial acts?
The distinction between quasi-judicial functions on the one hand and purely administrative on the other is important for the simple reason that the writ of certiorari may be issued only to quash judicial or quasi-judicial decisions and not such orders or decisions which are purely administrative. This is so because the writ of certiorari is issued to test whether or not the decision of a Court or tribunal is good in law. In the case of purely administrative functions, the order or decision turns more on policy considerations rather than law and therefore such decisions are not amenable to the writ of certiorari. The above distinction, however, has remained one of the most complex and baffling problems in Administrative Law from its very inception. More than half a century ago, Lord Justice ATKIN suggested certain criteria of quasi-judicial functions in R. v. Electricity Commissioners: Ex parte London Electricity Joint Company. According to him an act would be quasi-judicial and amenable to the writ of certiorari provided it satisfies the following three essentials —
(a) that there is a body of persons, who have legal authority to determine questions;
(b) that the questions which they have to determine affect the rights of subjects; and
(c) that the body of persons is under a duty to act judicially.
The above proposition was approved by the Supreme Court of India as early as 1950. A close scrutiny of the above test would reveal that it is deceptively simple.
In fact the greatest uncertainty lies in determining the third element i.e. “the duty to act judicially”. It was rather difficult for the courts to come out with a cut and dried test as to when a body of persons is under a duty to act judicially particularly in those cases where the relevant statute is silent. The law both in England and India thus remained in a state of flux. This state of uncertainty has now, it is hoped, ended by the decision of House of Lords in Ridge v. Baldwin. Lord REID dissented from the view that the duty to act judicially could not be inferred unless it was laid down by the statute expressly or impliedly. According to him whether or not there is a duty to act judicially will be determined by looking at nature of the duty in the particular case. If the nature of duty is such that it ought to be performed judicially then body of persons are under a duty to act judicially. In the instant case the Lord REID observed:
The necessity to follow judicial procedure and observe principles of natural justice flows from the nature of the decision which the Watch Committee had been authorised to reach under section 191(4).
The above decision of House of Lords has far reaching consequences in Administrative Law. It has greatly expanded the scope of the writ of certiorari. The area where principles of natural justice have to be followed and judicial approach has to be adopted has become immediately wide. The courts in India have sharply reached and have accorded a warm welcome to Ridge v. Baldwin. The Supreme Court has approved it in a number of cases. In the beginning the pace was rather slow but now Ridge’s case has fully permeated in Indian Administrative law. In one of the cases while dealing with an administrative order Supreme Court held:
The rule that party to whose prejudice the order is intended to be passed is entitled to a hearing applied alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our Constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers.
Reaffirming the above view in a subsequent case the Supreme Court observed:
Granting that the order was administrative and quasi-judicial, the order had still to be made in a manner consonant with rules of natural justice when it affects the respondent’s rights to property.
The above extension of principles of natural justice in the field of administrative decisions is rather alarming. It is now difficult to imagine an administrative decision affecting rights of subjects, which may not be amenable to the writ of certiorari. It may not be too much to say that in some cases the application of rules of natural justice has resulted in unnatural justice. It is certainly not the intention that arbitrary powers be vested in administrative authorities. There must be control. But there is a limit beyond which control would cripple the effective functioning of the administration.
3. Grounds on which certiorari may issue
Certiorari may be issued on any of the following grounds:
(a) Want or excess of jurisdiction.
(b) Violation of procedure or the disregard of the principles of natural justice.
(c) Error of law apparent on the face of the record.
(a) Want or excess of Jurisdiction
Whenever an inferior court or tribunal suffers from some defect of jurisdiction, the order passed by it may be quashed through certiorari. The defect of jurisdiction may arise because:
(i) The inferior court or tribunal is improperly constituted.
(ii) The inferior court or tribunal has no authority to enter on an enquiry in respect of the whole or part of the subject-matter covered by the proceedings.
(iii) The law under which the inferior court or tribunal is established is itself declared unconstitutional. In such a case the order passed by the inferior court or tribunal, being without jurisdiction, may be quashed by certiorari.
(b) Violation of Procedure or disregard of principles of Natural Justice
It may be that the inferior court or tribunal does not suffer from any infirmity as regards its jurisdiction, but while exercising its undoubted jurisdiction, if the inferior court or tribunal adopts an illegal procedure, the order may still be quashed by certiorari. Thus where certain procedure is laid down in the law setting up the inferior court or tribunal and it violates that procedure; the order may be quashed by certiorari. Even in cases, where the law establishing an inferior court or tribunal does not expressly lay down any procedure, it is settled law that every body or authority which performs judicial or quasi-judicial functions must observe a certain minimum judicial procedure so as to ensure at least a semblance of justice to the parties. This minimum judicial procedure is that everybody or authority performing judicial or quasi-judicial functions is bound to observe the principles of natural justice, whether or not it is expressly laid down in the law establishing such body or authority.
Natural justice is a vague term and is not capable of precise definition. One can understand it and to some extent explain it also, but shall fail miserably when he attempts at a precise definition. Even so, whatever else may be covered in the concept of natural justice, two rules have long been recognized and established as fundamental to the concept. The two fundamental rules of natural justice are;
(1) Audi alteram partem rule.
(2) Nemo judex in causa sua.
(1) Audi alteram partem rule. – This literally means : ‘Hear the other side also’. Expressed differently it says : ‘Both parties must be heard’ or that no man should be condemned unheard. Right to hearing means that the affected party should be afforded a full and fair opportunity of being heard in defence. This means that each party must have reasonable notice of the case it has to meet and a reasonable opportunity of presenting his own case. During trial no evidence should be taken behind the back of a party. Copy of each document relied upon by the court or tribunal should be made available to the other party. The opportunity of being heard must be effective and not an empty formality. This certainly does not mean that in every case there is an obligation to hear a party in person (oral hearing) or through a lawyer. The question of personal hearing depends on the circumstances of each case. The Supreme Court in G.N. Rao v. A.P.S.R.T. Corporation held that ‘hearing’ means ‘one who decides must hear’. Hearing before one person and decision by another person means no hearing. In the instant case, hearing was given by the Transport Secretary to the Government and decision was taken by the Transport Minister. The Supreme Court quashed the scheme approved by the Transport Minister, since it violated the first principle of natural justice in as much as no hearing was afforded to the affected party.
Opportunity of hearing, however, cannot be afforded in cases where e.g. there is an imminent danger of the collapse of a building and the Municipality is obliged to pull it down immediately in public interest, the safety of the public as well as of the inmates of the house being jeopardized. In emergencies notice is not possible to be given. Where maintenance of public order demands immediate action no notice can be given.
(2) Nemo Judex in Cause Sua. – The second rule of natural justice literally means that ‘no man shall be a judge in his own cause or matter’. A person occupying the seat of judgement must act impartially and with a sense of justice. He should not have any interest or bias in favour of any party. He should have no interest in the subject-matter in dispute before him. If the person or authority deciding a case has bias, the order passed by him shall offend the second principle of natural justice and may be quashed by certiorari. Where the judge has personal knowledge of the case or has examined him as a witness, the order gets vitiated and may be quashed by issuing certiorari.
The presumption of bias or interest will arise in the following circumstances:
(i) Where the judge is personally related to one of the parties; or
(ii) Where he has pecuniary interest in the subject-matter in dispute; or
(iii) Where he is a man of the Department. Thus the Supreme Court in G.N. Rao v. A.P.S.R.T. Corporation held that in as much as the Transport Secretary who heard and virtually decided the matter was a man, belonging to the Transport Department he suffered from departmental bias.
In conclusion it may be noted that it is not necessary to prove that the judge in deciding the case was actually biased. It would be enough if it is established that he was likely to be biased. ‘Likelihood of bias’ is therefore the test for quashing the order by certiorari. It is because justice should not only be done but should undoubtedly and manifestly seem to have been done.
(c) Error of Law Apparent on the face of Record
The inferior court or tribunal may have acted within the jurisdiction and committed no illegality of procedure in exercising that jurisdiction, yet the order may be quashed by certiorari if it is found that it has committed an error of law which is apparent on the face of the record.
It may be noted at the very outset that certiorari can never be issued to quash an order of the inferior court or tribunal on the ground that it has committed an error of fact however grave and serious it may be. The writ can be availed of only where the inferior court or tribunal has committed an error of law. But certiorari would not issue in all cases of error of law. It would issue only where the error of law is apparent on the face of the record. An error of law which is obvious and self-evident, which does not require arguments to establish it, which is patently clear and glaring and not latent, shall be such an error of law which may be called patent on the face of the record. Thus where an inferior court or tribunal relies upon a judgment of the Supreme Court or the High Court which stood overruled on the date of application, the decision may be quashed by certiorari. Similarly where the inferior court or tribunal applies a repealed statute, the decision can be quashed by certiorari. Again where the inferior court or tribunal makes findings of fact based on no evidence, the decision can be quashed by certiorari. In all the above cases, the error of law is serious and self-evident and is apparent of the fact of the record. Where two views are possible in the matter of interpretation of a certain provision in a statute, the error cannot be called an error of law apparent on the face of the record. The record for purpose of certiorari is confined to pleadings, documents which initiate proceedings and adjudicatory order. It does not cover evidence. In appropriate cases the superior court may examine other documents also.
Finally, it may be noted that unless the order passed by the inferior court or tribunal is a ‘speaking order’ (i.e. one which discloses grounds and reasons for the order), it would be difficult to establish that there is an error of law apparent on the fact of the record. The inferior courts or tribunals must, therefore, pass speaking orders.
4. Orders passed by a High Court in a judicial proceeding cannot be quashed by certiorari
Such orders may be rectified only in Appeal or Revision, if permitted by law. The Supreme Court, therefore, cannot under Article 32 issue a writ of certiorari to quash a judicial order of a High Court on the ground that it violates the fundamental rights of the petitioner. An appeal and not writ is the appropriate remedy in such cases.
5. The grant of certiorari is discretionary
The writ of certiorari is a discretionary remedy. It may be denied if the party’s conduct justifies such refusal. Such conduct may include undue delay in presenting the application without proper explanation for such delay. Suppression of material facts and failure to take objections as to jurisdiction at the original proceeding, except where the party was then ignorant of the facts constituting the defect of jurisdiction. Subject to the above, certiorari can be claimed as of right (ex debito justitiae), in case of want or excess of jurisdiction. Jurisdictional facts should be raised in the original proceeding. If a party submits to it, he cannot later raise it in certiorari proceedings. But if it is patent on the record that there is clear want of jurisdiction, acquiescence or consent in the earlier proceedings cannot confer jurisdiction on the tribunal which had none. Certiorari will be refused if there is an alternative remedy or a statutory right of appeal. Even this is in the discretion of the court. The availability of an alternative remedy is not an absolute bar but is only one additional fact to be taken into account along with other facts so as to arrive at the conclusion whether it would be appropriate to allow the writ inspite of the availability of an alternative remedy. In a matter arising out of the allotment of symbols, the fact that an appeal lay before the Election Commission was considered by the Supreme Court to be a factor of very high importance to be kept in mind by the High Court for coming to the conclusion whether to interfere in the electoral process. An interference without giving due weight to this fact was described by the Supreme Court as a serious error.
In an earlier matter on the point the Supreme Court had considered it more advisable that election disputes under the Universities Act should have been presented before the machinery designated by the Act. The court, however, added that there may be cases where exceptional or extra-ordinary circumstances may exist to justify the bypassing of the alternative remedy. The Supreme Court has also added that null and void orders can be challenged under this jurisdiction notwithstanding the existence of an alternative remedy under the relevant statute.
In England this is a prerogative writ emanating from the High Court to an inferior court or tribunal prohibiting the latter from proceeding further with a matter pending before it. This may be based on the fact that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise. The general policy of law is always to keep the inferior courts stick to their proper sphere of jurisdiction. Usurpation of jurisdiction by the inferior court is thereby prohibited. “Prohibition” can lie only against judicial or quasi-judicial proceedings and never against legislative or executive functions. The existence of an alternative remedy is no bar as only when there is absence or excess of jurisdiction that prohibition is recorded to.
The writ of prohibition may be issued in the following cases:
(i) When there is usurpation of jurisdiction.
(ii) When the inferior court proceeds in cases where it is prohibited by statute.
(iii) When the inferior court exceeds its jurisdiction.
(iv) When the inferior courts have no power under the statute to act in the way they did.
(v) When the inferior court commits an error in procedure which involves an act which is contrary to the general law of the land or which is so vicious as to violate the principles of natural justice.
Distinction between prohibition and certiorari
Although the grounds for issuing prohibition are the same on which certiorari may issue, there are two important points of distinction between the two. These are as under:
(1) The first and fundamental distinction between the two writs is that they are issued at different stages of proceedings in the lower court or tribunal. Where the proceedings are still pending, it is prohibition that should be prayed for. But where the inferior court or tribunal has already decided the case, it is certiorari that should be prayed for quashing the decision. Where, however, the order passed by the inferior court or tribunal doe not completely dispose of the case before it, it would be necessary to apply for both certiorari for quashing what has already been decided and prohibition for arresting further proceedings in the case.
(2) The second significant point of difference between prohibition and certiorari is that certiorari may be issued even after the inferior court or tribunal has ceased to exist after giving the decision (i.e. it has become functus officio), but prohibition can only be issued so long as the inferior court or tribunal is still functioning. This is so because prohibition is directed against the inferior court or tribunal itself, restraining it from proceeding further in the case pending before it, while certiorari is issued for the purpose of summoning the records of a case already decided by an inferior court or tribunal, and is consequently directed to the person or persons holding custody of the record. Hence certiorari may be issued even though the inferior court or tribunal which has decided a case since become functus officio.
Mandamus literally means “we command”. Thus mandamus is a command issued by a superior court (in India the Supreme Court or the High Court) addressed to any Government, court, corporation or public authority directing it to do or refrain from doing some particular act specified therein, which that body or authority is by law under a duty to do or refrain from doing, as the case may be, and is in the nature of a public duty. Stated differently, an order of mandamus is, in form, a command directed to some inferior court, tribunal or board or to some corporation or person, requiring the performance of a particular duty therein specified which duty results from the official status of the party to whom the writ is directed or from operation of law. The object of mandamus, therefore, is to compel the performance of a legal duty by a person or body entrusted by law with that duty. Hence the condition precedent for issuance of mandamus is that there is in one claiming it, a legal right to the performance of a legal duty by one against whom it is sought.
The following points may be noted in connection with the writ of mandamus:
(1) There must be in the applicant a legal right to compel the opponent for the performance of a duty. The duty in order to be mandamusesâ€™ (i.e. enforced through mandamus) must have the following three qualities;
(i) The duty must be of a public nature. A duty is of a public nature when â€“
(a) it arises under a statute or common law, and
(b) it does not correspond to a private right.
Hence duties arising out of acts of parties (such as contractual obligations even in cases where one of the parties is Government) are not of a public nature and cannot be enforced by mandamus.
(ii) The duty must not be of a purely ministerial nature. Thus a writ of mandamus can be issued against the Dean of a Faculty in a University but not against the Assistant Superintendent of the office of the Dean of the Faculty, because the duties or functions of the Assistant Superintendent are of a purely ministerial nature. He acts under the orders of his superiors.
(iii) The duty must be of an imperative or absolute character. It must be mandatory and not discretionary in nature.
Thus the duty cast upon the Deputy Commissioner to pay pension is of an absolute nature and can be enforced through mandamus.
Likewise it has been held that mandamus shall lie to compel the Income Tax Commissioner to issue orders for refund of amounts certified to be overpaid.
In one case, the publisher of a book applied for mandamus to compel the Director of Public Instructions to include her book in the list of books approved by the Education Department for use of students, studying in schools of the State. The writ was not issued because choice of books was a matter entirely discretionary with the Direction of Public Instructions and he was under no duty to include the book. The principal of a college is under no duty legal or statutory to admit a student to a particular class. Accordingly, no mandamus shall lie in such a case. Where the petitioner merely prayed for a writ directing the State or the Medical College to consider his case for admission, the High Court cannot go a step further and issue mandamus directing the college to admit him to the post graduate course. This would amount to granting a relief which the petitioner himself never prayed for. Mandamus is not issued for the enforcement of any Government policy. The question of holding an entrance examination for pre-medical and pre-dental courses in Hindi and regional languages being a matter of policy decision and being not involving any rights under Article 29, it was held that no command would be issued to the State about the language of the test.
The Court cannot direct a legislative authority to enact a particular law or ask an authority to exercise its delegated legislative authority.
The authorities under the Motor Vehicles Act will not be obliged to implement an agreement entered into with private operators to grant them route permits which agreement, it appeared, violated the provision of the Act.
Fairness in Administrative Decisions
However, a recent development in this connection on the judicial front is worth witnessing. In all fields of administrative and policy-making decisions, which being neither judicial nor quasi-judicial in nature, where opportunity is not required to be afforded and which are not open to judicial in nature, where opportunity is not required to be afforded and which are not open to judicial scrutiny or review, the Supreme Court has prescribed the requirement that the public functionaries clothed behind administrative or policy decisions, would have to act fairly. This opens up new vistas for challenging administrative decisions. The court can examine the fairness of the decision even if there is a finality clause. An unfair decision can be quashed and directions issued to the deciding authority to proceed again. K. Jagannatha Shetty J. summarises the position like this:
“The shift is not to a broader notion of “fairness” or “fair procedure” in the administrative action. As far as the administrative officers are concerned, the duty is not so much to act judicially as to act fairly. (See Keshav Mills Co. v. Union of India; Mohinder Singh Gill v. Chief Election Commissioner; Swadeshi Cotton Mills v. Union of India and M.S. Nally Bharat Engineering Co. Ltd. V. State of Bihar). For this concept of fairness, adjudicative settings are not necessary, nor is it necessary to have this inter partes. There need not be any struggle between two opposing parties rise to a ‘lis’. There need not be resolution of lis inter partes. The duty to act judicially or to act fairly may arise in widely differing circumstances. There need not be resolution of lis inter partes. The duty to act judicially or to act fairly may arise in widely differing circumstances. It may arise expressly or impliedly depending upon the context and considerations. All these types of non-adjudicative administrative decision making are now covered under the general rubric of fairness in the administration. But then even such an administrative decision unless it affects one’s personal rights or one’s property rights, or the loss of or prejudicially affects something which would judicially be called at least a privilege, does not involve the duty to act fairly consistently with the rules of natural justice.”
The learned judge was examining the nature of the power that the Chancellor of a University exercises under the Universities Acts relating to the selection and appointment of teachers. Most of the Universities Acts, the Court found, had this common pattern that in case of any disagreement between the selecting authority (Selection Committee) and the appointing authority (Executive Council), the matter stands referred to the Chancellor under a Statement of reasons by the Executive Council showing the grounds of its disagreement. The Chancellor then is authorized to give the final decision. The court said that this power is absolutely and purely administrative. There is no dispute between two parties before the Chancellor. He is the apex body in the act of selection and since a selection has to be fair and cannot be reduced to an election, the Chancellor is supposed to deliver a fair decision. The Court can only examine the mala fide of the decision and that too if sufficient material is brought before the court to enable it to do so.
Though the court cannot interfere, it can direct the authority in question to perform its essential functions, even where such essential functions are partly of contractual nature. Thus in Gujarat State Financial Corpn. V. Lotus Hotels P. Ltd. The Corporation was compelled by mandamus to pay the loan which had been granted to the petitioner and on the basis of which he had made preparations for the project. Again in Dwarkadas Marfatia & Sons v. Board of Trustees of the Part of Bombay the conduct of an authority under the State even in reference to a non-sovereign relation, such as landlord-tenant relation can be the subject-matter of judicial review. The Port-Authority being an exempted landlord was asking a tenant to vacate the premises. The court allowed the tenant to show that the authority had terminated the tenancy or taken the proceeding in eviction not in public interest but for a collateral purpose or mala fide or that it had acted in a manner contrary to the provisions of the Article 14 of the Constitution.
(2) Demand and Refusal. – An important requirement for issue of mandamus is prior demand for the relief and its refusal by the authority. It does not mean that in every case there must be a formal demand and refusal. The reason behind this rule is that the party against whom mandamus is sought should have had the opportunity of considering if he should comply with what is demanded of him and the court must be satisfied that the party complained against was determined to deny. The Courts however would look into the substance of the demand and refusal, and would not insist upon it in cases where it would be an empty formality. In the matter of public interest litigation where judicial orders are sought by private agencies against defaulting Government agencies, there the question of demand and refusal can hardly be raised.
(3) Mandamus would lie where an authority threatens to realize an illegal tax. It may be noted that mandamus would not be where an alternative adequate relief exists.
(4) Mandamus is issued upon the application of one who has a clear right to demand performance of a public duty and who has no other adequate relief.
(5) Mandamus would not lie against private individuals.
(6) Mandamus cannot be issued to the State Legislature, to prevent it from considering a Bill which is alleged to be unconstitutional.
(7) Mandamus would not issue against the President of India or the Governor of a State.
(8) The court in proceeding for mandamus will never sit as a court of appeal so as to examine facts or to substitute its own wisdom for the discretion vested by law in the person or body against whom the writ is sought.
When a petition is filed by a person not personally interested but as a public interest litigation, it would have to be shown by the petitioner that the subject-matter of the writ is for public benefit. Thus where the petition was for changing the Chairman of the Sawai Man Singh Ji Museum Trust, being a public interest and the Supreme Court finding that the object was not to secure any public advantage, but only for the benefit of a section of the public and that too for the parties’ private rights, the Supreme Court did not allow the writ petition.
Such litigants have also to show some definite and positive injury to public. Where in reference to a T.V. Serial it was not substantiated as to how it was likely to cause grave prejudice and danger to public morally, the Supreme Court held that interim injunction order prohibiting the telecast was not justified.
In the matter of public interest litigation a letter addressed to a single judge can be treated as equivalent to a petition. At that moment it need not be supported by an affidavit. In order to take care of any apprehensions, the court now has a cell and it is only after scrutiny by the staff members attached to the Cell that such communications, whether they be by means of a telegram or letter, are placed before the Chief Justice and under his direction they are listed before the Court. At this stage the court will compel the Authority against whom the complaint is presented to join the proceedings. Though technical matter like, for example, the composition of drugs cannot be the subject-matter of a petition, the court can order compliance with statutory requirements. Matters of ecology can figure in writ petitions but here also the scope of judicial review and scrutiny would have to be very limited. The court did not interfere with the matters of environmental control. In reference to the petitions emerging out of the pollution of river waters, the Supreme Court suggested that the Central Government has the duty to introduce compulsory teaching of lessons on protection of natural environment as a part of school curriculum.
Mandamus is generally not issued against private persons or institutions. If the rights are purely of a private character mandamus cannot be issued. But the person or authority against whom it can be directed is not the same thing as the expression “other authority” as used in Article 12 of the Constitution. The “duty” which is in question, on the person or authority also need not be one imposed by a statute. Performing a function of public nature or having public character will be enough for the purposes of this writ. Accordingly, a teacher was allowed to proceed under the writ jurisdiction to question the validity of his removal by a school which was registered as a trust under the Bombay Trusts Act, 1950.
Purely private or contractual rights cannot be brought under the umbrellas of writ jurisdiction. When a “State or other authority” (within the meaning of Article 12 of the Constitution) enters into contracts with private persons, the contract will be the governing documents including so far as the remedial aspects are concerned. The aggrieved party is not entitled to seek redress for breach of contract under Article 226.
Mandamus compared with Certiorari and Prohibition
It has already been noted that the writs of certiorari and prohibition will issue only against such body or authority which performs judicial or quasi-judicial functions and not against one which performs purely administrative functions. Mandamus makes no such distinction and can be issued against any body or authority whether performing judicial or non-judicial functions. The only rigid requirement of mandamus is that the duty which is sought to be enforced should be of a public nature.
Thus where the order of inferior court or tribunal has been quashed by certiorari and the inferior court or tribunal refuses to take and decide the case again, mandamus would be the appropriate remedy which should be sought for, compelling the inferior court or tribunal to take up the case and decide it.
XI. HABEAS CORPUS
The history of Habeas Corpus is the history of the conflict between power and liberty. The writ provides a prompt and effective remedy against illegal confinement. “Habeas Corpus” is thus a process by which a person, who is confined without any authority of law, may be released from his confinement. The term Habeas Corpus literally means ‘Have the body’. In Halsbury’s LAWS OF ENGLAND it has been defined as under:
Writ of Habeas Corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention and is available against the executive.
Chief Justice John Marshall of the U.S. Supreme Court described it as ‘a great constitutional privilege’. It was described as Magna Carta of British liberty. It is acclaimed as a palladium of liberty of common man.
The writ is an order issued by the court of competent jurisdiction, directing the person by whom a prisoner is alleged to be kept in wrongful confinement to produce such person before the court and to let the court known on what ground and authority the said person is confined. If the detention is illegal or has no authority of law, the person under detention is ordered to be released. Thus the writ affords immediate relief against illegal confinement or restraint for vindication of the right to personal liberty. The writ therefore, is the most effective means of checking arbitrary arrests affected by an executive authority.
The broad principles governing issuance of the writ of Habeas Corpus may be noted:
(1) An application for grant of the writ of Habeas Corpus can be made by the detenu himself or by any person (i.e. his next friend or relative) on behalf of the detenu who may not be a complete stranger.
(2) The application for Habeas Corpus, must be supported by an affidavit showing therein the facts and circumstances of the detention which is alleged to be illegal.
(3) Having received such application, the court will consider whether or not a prima facie case for Habeas Corpus exists. If the court is of the opinion that a prima facie case is made out, it will issue a rule nisi calling upon the person or persons against whom the writ is sought to be issued, to show cause, on a given date, why the order granting the writ should not be issued, and at the same time the person alleged to have been illegally detained should also be produced in the court. If the cause shown by the detaining authority or person reveals that the detention is illegal or unjustified, the court will immediately order the detained person to be set at liberty. Disregard of the said order of release amounts to contempt of court. If, on the other hand, the detaining authority shown that the detention is not illegal or is justified, the rule nisi will be discharged. The sole question for determination by the court is as to whether the person is lawfully detained. If he is, the writ cannot issue, if not, it must issue.
The detention shall not be illegal if the conditions given below are satisfied:-
(i) The detention is in accordance with the procedure established by law.
(ii) The law providing for detention is not violative of the provisions of Article 22.
(iii) The Legislature while making law providing for deprivation of personal liberty has not violated the provisions of Article 246 of the Constitution.
(4) The writ of Habeas Corpus will lie if it is proved that the detention is mala fide and is made with ulterior motive. For providing mala fide the onus lies upon the petitioner.
(5) The writ of Habeas Corpus will not lie in cases where a person is undergoing imprisonment in execution of judicial order on a criminal charge, even if the order of the court is erroneous. The proper course in such cases would be to go in appeal.
(6) Under English Law, no appeal lies against an order of discharge of a person on a Habeas Corpus petition. In India, there is no such bar and an appeal can lie in Supreme Court under Article 132, 133, 134 and 136 against an order of a High Court granting or rejecting the writ.
(7) The writ of Habeas Corpus can be issued under Articles 32 and 226 of the Constitution. It may, however, be noted that the jurisdiction of the High Court under Article 32 cannot issue the writ against a private person, while the High Court under Article 226 can issue it against a private person also.
It may also be noted that where a petition of Habeas Corpus is presented in High Court and rejected by it, a fresh petition on the same grounds, facts and circumstances can be presented in Supreme Court under Article 32. But this does not mean that successive petitions of Habeas Corpus can be presented to different Judges of the same High Court. A bail application is distinct from a petition of Habeas Corpus. Consequently, there is no bar in presenting successive bail applications to different Judges of the same High Court.
(8) The writ of Habeas Corpus is an effective remedy for immediate release of a person from unlawful or illegal detention, whether such person is in prison or in private custody. Control and custody are sufficient to constitute detention. Physical confinement is not necessary. Thus if a man is kept wrongfully in confinement as a lunatic or if a Nun is wrongfully prevented from leaving her convent of if a child is kept forcibly and illegally in custody apart from his parents, the High Court would issue the writ of Habeas Corpus and set them free. Ordinarily the basis for granting a writ of Habeas Corpus is an illegal detention but when the writ is issued in respect of wife or child, the dominant factor weighing with the Court is not so much the illegality of the detention, as the welfare of the persons detained. Thus where the wife is detained by her parents and being major, she does not wish to live with her husband; the wife cannot be restored to the husband in a Habeas Corpus petition. In case, the wife is minor and unable to apply her mind and use discretion, her interest and welfare shall be taken care of by the court in deciding as to where and with whom she may be allowed to live.
(9) Maintainability of Habeas Corpus, petition during Emergency.- Article 359 empowers the President of India, by order, to suspend the right to enforce all or any of the Fundamental Rights excepting Articles 20 and 21 conferred by Part III of the Constitution. Personal Liberty is one of the Fundamental Rights – conferred by Part III and the writ of Habeas Corpus is peculiar to the enforcement of the right to personal liberty. It, therefore, follow that the suspension of the right to enforce the right conferred by Article 21 would not mean the suspension of the right to file a Habeas Corpus petition or to take any other proceeding to enforce the right to personal liberty conferred by Article 21.
(10) Lastly it may be noted that the writ of Habeas Corpus is not of a punitive or corrective nature. It is not even devised to secure damages for the injured party. For such purposes, resort must be had to ordinary remedies at law.
It has been held by the Supreme Court that the failure of the detenue to challenge detention due to Emergency could not operate as an estoppels against his right to move the court.
Res judicata also does not apply to bar a subsequent fresh petition where the petitioner has raised new grounds. “In the present case in the subsequent writ petition fresh additional grounds had been taken to challenge the legality of the continued detention of the detenue and, therefore, the petition is not barred by res judicata.
Compensation for Detention
Ordinarily Article 32 cannot be used for converting a petition into an action for compensation for the wrong suffered. But the Supreme Court in its discretion can pass an order for payment of compensation to the victims whose fundamental right has been violated. If the claim for compensation is controversial, the petitioner may be advised to go to a civil court. Where, however, the facts are obvious, as in the present case, where after his acquittal, the accused was not released but was detained for a long period without rhyme or reason, not to pass an order of compensation would be a mere lip service to his fundamental right to liberty which the State Government so grossly violated. Article 21 would be denuded of its significant content if the power of the court were limited to passing orders of release from illegal detention. The only effective method open to the judiciary to prevent violation of that right and to secure due compliance with the mandate of Article 21 is to mulct the violators in the payment of monetary right by its officers. It may have recourse against officers in default. The Supreme Court ordered that taking into consideration the great harm done to the petitioner by the Government of Bihar, as an interim measure, the State must pay to the petitioner a further sum of Rs.30,000, in addition to the sum of Rs.5000 already paid by it. This order would not preclude the petitioner from bringing a suit to recover appropriate damages from the State and its erring officials.
Carrying further the spirit of this decision the State has been held liable for consequences of police torture anywhere whether with or without detention. In People’s Union for Democratic Rights v. Police Commissioner, Delhi Police Headquarters, one of the laborers who was taken to a police station for doing some work and on demand for wages was severely beaten up and ultimately succumbed to his injuries. The State was directed to pay the family of the deceased laborer Rs.75,000 as compensation money. The Delhi Administration was once again directed to pay an equal amount to the mother of a boy who was beaten to death in police custody. The Court suggested that the Administration may resort to appropriate steps for recovering the amount from the guilty officers. The proceedings in this case were initiated by a Women’s and Civil Rights Organization know as SAHELI.
Quo-warranto literally means “by what authority”. The writ is issued for determining the right of a person in office, to hold the office and directing him to disclosed under what authority he is holding that office. If the court finds that the person is holding the office in question illegally, it would pass an order of ouster which will have the effect of removing him from his office. The following points may be noted in connection with the writ of Quo-Warranto.
1. The office in question must be of a public nature. A public office means an office in which the public have an interest. Generally speaking an office created by a statute or under the Constitution of India would be of a public nature. In no case the writ will be issued if the office is of a private followship of college, membership of a private religious association. It has been held that the following offices are of public nature and that a writ of Quo-Warranto may issue.
(i) The Office of Chief Engineer of a Corporation.
(ii) The Office of Speaker of Legislative Assembly.
(iii) The Office of the Advocate-General of a State.
(iv) The Office of Judge of a High Court.
(v) The Office of the Prime Minister of India.
2. The issuance of the writ of Quo-Warranto is discretionary in nature and the petitioner cannot claim it as of right. Thus where the issue of the writ would be vexatious or where there is acquiescence on the part of the petitioner, the High Court may in its discretion, refuse to issue the writ. If there is an alternative remedy, the writ of Quo-Warranto will not be issued. But the special leave to appeal under Article 136 being discretionary with the Supreme Court, it cannot be termed as alternative remedy so as to bar petition of Quo-Warranto under Article 226.
3. There can be no question of delay in Quo-Warranto proceedings, because each day the person illegally continues to occupy a public officer, he gives rise to a fresh cause of action.
4. The rule that only affected party has locus standi to invoke writ jurisdiction of the Supreme Court or the High Court is not rigidly adhered to in Quo-Warranto. Hence even a private person, although not directly affected or interested in the matter, may apply for Quo-Warranto challenging the legality of a person holding an office of public nature.