International Journal of Management and Social Sciences Research (IJMSSR) ISSN: 2319-4421 1

Volume 7, No. 4, April 2018

Writs: Utility in Administrative Law

Keshav Jha, Assistant Professor, Amity Law School, Amity University, Rajasthan

ABSTRACT 1. Habeas Corpus

In modern times the strengthening of power of The meaning of the Latin phrase Habeas Corpus is 'have
administrative authorities has resulted into different the body'. According to article 21,"no person shall be
complications and repercussions in socio-economic field deprived of his life or personal liberty except according to
the procedure established by law". The writ of Habeas
in India.
corpus is in the nature of an order directing a person who
The administrative law is that branch of law that keeps the has detained another, to produce the latter before the court
governmental actions within the bounds of law and in order to examine the legality of the detention and to set
prevents the enforcement of blatantly bad orders from him free if there is no legal justification for the detention.
being derogatory. It is a process by which an individual who has been
deprived of his personal liberty can test the validity of the
State not only has the legal duty to protect the rights act before a higher court. The objective of the writ of
guaranteed, but also a social duty to compensate the habeas corpus is to provide for a speedy judicial review of
affected, when the state violates these rights. alleged unlawful restraint on liberty. It aims not at the
punishment of the wrongdoer but to resume the release of
There has been tremendous expansion in the the retinue. The writ of habeas corpus enables the
administrative process in our country, which is obvious in immediate determination of the right of the appellant's
a welfare state as a welfare state is basically an freedom. Article 22 of the constitution requires an arrested
administrative state. person to be produced within 24 hours of his arrest and
failure to do so would entitle the person arrested to be
Keywords released. The grounds of his arrest should also be
informed to him. Even when the arrest is valid, failure to
Rule of law, Habeas Corpus, Certiorari, Prohibition, inform the grounds within a reasonable time would make
Mandamus, Quo Warranto the detention unconstitutional. In such cases, the writ of
Habeas corpus acts as a constitutional privilege. If the
INTRODUCTION court finds that there was no legal ground for the
imprisonment of a person, it will pass an order to release
Writ jurisdiction is exercised by the Supreme Court and him forthwith. The question before the court is whether
the High courts only. This power is conferred to Supreme the detention is lawful. In the writs of habeas corpus, the
Court by article 32 and to high courts by article 226. merits of the case or the moral justification for the
Article 32(1) guarantee a person the right to move the imprisonment or detention are irrelevant. Any person
Supreme Court for the enforcement of fundamental rights whether he is guilty or not, is entitled to be set at liberty if
his imprisonment is not as per law.
guaranteed by part III of the constitution. Article 32(2)
empowers the Supreme Court to issue direction or orders Who can apply?
or writs in the nature of Habeas Corpus, Certiorari,
Prohibition, mandamus and Quo-warranto for the A writ of habeas corpus is issued to the authority or
enforcement of fundamental rights. Article 226 empowers person who has detained the person. The application for
the state high courts to issue directions, orders or writs as habeas corpus can be made by the prisoner himself or by
mentioned above for the enforcement of fundamental any interested person other than a total stranger. Even a
rights and for 'any other purpose'. i.e., High courts can letter to the court pointing out the illegalities of
exercise the power of writs not only for the enforcement of imprisonment or unlawful detention will be admitted. If
fundamental rights but also for a 'non fundamental right'. the court gets any information from anyone, it can act suo-
moto in the interest of justice.

Impact Factor: www.irjcjournals.o

International Journal of Management and Social Sciences Research (IJMSSR) ISSN: 2319-4421 2
Volume 7, No. 4, April 2018

2. Certiorari
jurisdictional facts, the order is liable to be quashed
The writ of Certiorari is generally issued against by the writ of certiorari.
authorities exercising quasi-judicial functions. The Latin
4. Error of law apparent on the face of record: A writ
word Certiorari means 'to certify'. Certiorari can be of certiorari can be issued to quash an order if there
defined as a judicial order of the supreme court or by the is an error of law apparent on the record. An error is
high courts to an inferior court or to any other authority apparent on the face of record if it is self evident.
that exercise judicial, quasi-judicial or administrative i.e. if the error can be ascertained by a mere perusal
functions, to transmit to the court the records of of the record without a detailed argument or further
proceedings pending with them for scrutiny and to decide evidence. An error of law apparent on the face of
the legality and validity of the order passed by them. the record is treated as an insult to the legal system.
Through this writ, the court quashes or declares invalid a Ignorance or neglect of law, wrong proposition of
decision taken by the concerned authority. Though it was law, inconsistency between the facts, law and the
meant as a supervisory jurisdiction over inferior courts decision etc amount to errors of law.
originally, these remedy is extended to all authorities who
issue similar functions. The concept of natural justice and 5. Violation of the principle of natural justice: When
the requirement of fairness in actions, the scope of there is a violation of the principle of natural
certiorari have been extended even to administrative justice, a writ of certiorari can be issued. An
authority is bound to observe the principles of
decisions. Whether the decision is judicial or quasi judicial
natural justice. Anyone who decides a case must
is irrelevant nowadays. Certiorari is corrective in nature.
adhere to the minimum standards of natural justice.
This writ can be issued to any constitutional, statutory or
Hence when there occurs an infraction of
non statutory body or any person who exercise powers
fundamental right, the writ of certiorari comes for
affecting the rights of citizens. Grounds for Certiorari: The restoration of that right.
following are the grounds for Certiorari:
3. Prohibition
1. Lack of jurisdiction: When the authority has no
jurisdiction to take action, it is lack of jurisdiction. The grounds for issuing the writs of certiorari and
When an authority is improperly constituted or is prohibition are generally the same. It is a general remedy
incompetent to take action and if it acts under an for the control of judicial, quasi judicial and administrative
invalid law, it will amount to lack of jurisdiction. decisions affecting the rights of persons. Grounds: The
Similarly when the authority acts without writs of prohibition and certiorari are issued more or less
jurisdiction, fails to exercise the vested jurisdiction on similar grounds.
or acts in excess of the limits, there involves a
defect of jurisdiction or power. The court can issue 1. Absence or excess of jurisdiction: The writ if
certiorari to quash such orders. Prohibition prohibits an authority from exercising a
jurisdiction not vested on it. When there is absence
2. Abuse of jurisdiction: If an authority abuses its of jurisdiction or total lack of jurisdiction an
jurisdiction, a certiorari can be issued. When the authority cannot act.
authority exercises its power for improper purposes
it is abuse of jurisdiction. Similarly if the authority 2. Violation of fundamental rights: When an authority
acts in bad faith or ignores relevant points and facts acts in violation or infringement of the fundamental
or acts on some other considerations abuse of rights of a person, a writ of prohibition can be
jurisdiction occurs and the writ of certiorari invoked.
becomes applicable.
3. Violation of the principles of natural justice: All
3. Jurisdictional facts: A jurisdictional fact is that fact authorities are to observe the principles of natural
or facts upon which an authority's power to act justice while exercising their powers. If an authority
depends. In the absence of jurisdiction for collateral fails in this regard the decision of that authority is
facts an authority cannot exercise jurisdiction over a liable to be quashed through the writ of prohibition.
dispute and decide it. If the authority takes a
decision on the wrong assumption of existence of 4. Statutes or laws against the constitution: When an
authority tries to act under a statute or a law which

Impact Factor: www.irjcjournals.o

International Journal of Management and Social Sciences Research (IJMSSR) ISSN: 2319-4421 3
Volume 7, No. 4, April 2018

is unconstitutional, the writ of prohibition can be

3. Excess jurisdiction.
applied.
4. Abuse of jurisdiction.
4. Mandamus
5. Violation of the principles of natural justice.
The writ of mandamus is a judicial remedy in the form of
an order from the supreme court or high courts to any 6. Error of law apparent on the face of the record etc.
inferior court, government or any other public authority to
carry out a 'public duty' entrusted upon them either by In the modern age, administrative agencies enjoy vast
statute or by common law or to refrain from doing a discretionary powers. Judicial review of the administrative
specific act which that authority is bound to refrain from actions often becomes necessary. The judicial review of
doing under the law. For the grant of the writ of administrative functions also comes under the scope of
mandamus there must be a public duty. The superior mandamus. When an administrative authority who has the
courts command an authority to perform a public duty or power of discretion fails to act bonafide or if it abuses or
to non perform an act which is against the law. The word exceeds the jurisdiction and if it does not apply 'mind' in
meaning in Latin is 'we command'. The writ of mandamus solving issues the writ of mandamus acts as an
is issued to any authority which enjoys judicial, quasi extraordinary remedy.
judicial or administrative power. The main objective of
this writ is to keep the public authorities within the Who can apply?
purview of their jurisdiction while performing public
duties. Generally the affected person has the right to seek this
remedy.
Conditions required for mandamus
Exceptions are
 The petitioner must have the right to compel the
1. The writ of mandamus cannot be issued against the
performance of the duty. This writ cannot be
president or the governors of states. They cannot be
invoked if the person complaining has no legal
insisted to exercise powers and to perform duties.
right.
2. The writ of mandamus cannot be issued against the
 There must be public duty. That duty must be
state legislature to prevent it from the execution of a
mandatory and not discretionary. But at the same
law alleged to be violative of the provisions of the
time when a discretionary power is abused or
constitution.
improperly exercised, that would be treated as non
exercise of discretion and the court can command 3. The writ of mandamus cannot be issued to an
the authority to exercise the discretion in officer who acts on the orders of his superior.
accordance with law. •The petitioner must have
made a specific demand for the performance of the Grounds for refusal of mandamus: Mandamus is a public
duty and the authority must have made a refusal to law remedy and hence it cannot be used to enforce a civil
perform. Then only a writ of Mandamus can be liberty arising under contracts. If there is unreasonable
sought. delay in filing the petition and if there is another adequate
alternate remedy, the writ of mandamus cannot be issued.
 A civil liability arising under a contract cannot be In fact the writ of mandamus is more purposeful than
enforced through mandamus. The grant of certiorari or prohibition. It combines the aspects of both
mandamus is discretionary. If there is unreasonable the writs to make an effective and better solution.
delay in filing the petition or if there is an adequate
alternate remedy mandamus may be refused by the 5. Quo Warranto
court.
The word meaning of 'Quo warranto' is 'by what authority'.
Grounds It is a judicial order against a person who occupies a
substantive public office without any legal authority. The
1. Lack of jurisdiction. person is asked to show by what authority he occupies the
position or office. This writ is meant to oust persons, who
2. Error of jurisdiction.
are not legally qualified, fro substantive public posts. The
writ of Quo warranto is to confirm the right of citizens to

Impact Factor: www.irjcjournals.o

International Journal of Management and Social Sciences Research (IJMSSR) ISSN: 2319-4421 4
Volume 7, No. 4, April 2018

hold public offices. In this writ the court or the judiciary

Although discretionary in nature but the discretion should
reviews the action of the executive with regard to
be exercised on sound legal principles ie it should not be
appointments made against statutory provisions, to public
arbitrary in nature and predictable and act as restraint on
offices .It also aims to protect those persons who are
unfair and unreasonable decisions of government.
deprived of their right to hold a public office. Conditions:
The following conditions are to be present if the writ of
quo warranto is to be issued. The office must be a 'public
REFERENCES
office'. All offices established by statutes or as per the
[1] Friedmann and Benjafield, Principles of Australian
provisions of the constitution and which carry out public
Administrative Law. (1962).
duties are public offices. It must be substantive in nature.
A substantive office is independent and permanent. It must [2] Franz Neumann's, Introduction to the Spirit of the
be held by an independent officer. The holder must be in Laws, New York, 1949.
actual possession of the office. The person must have
actual possession of the office. A person who has been [3] Gwyn, Willim B., “The Meaning of Separation of
elected or appointed to a particular post cannot be sued powers”.
upon unless he has not accepted the post. The holding of
the post must be in contravention of law. The appointment [4] George W. Carey, Separation of Powers and the
of a person to a public office must be a clear violation of Madisonian Model : A Reply of the Critics.
law. Irregularities in procedures etc cannot be taken as
[5] J.P. Clark, The Rise of New Federalism, New York,
violation. Who can apply? Any member of the public can
Colambia University Press, 1938.
seek the remedy of quo warranto even if he is not
personally aggrieved or interested in the matter. [6] Jennings, Law and the Constitution (1952).

CONCLUSION [7] Jain, M.P., „Indian Constitutional Law‟, Wadhwa

and company, Nagpur, Fifth Edition, 2005.
Writs are prerogative powers provided by the constitution
for judicial review of administrative actions and they are [8] Jain, M.P., „Treatise on Administrative Law‟,
discretionary in nature. Wadhwa and company Law Publishers, Agra,
Edition 1996.

Impact Factor: www.irjcjournals.o