Judicial Control of Administrative Actions through Writs- The Role of Writs
India and the substantial percentage of countries around the world have at least in principle recognize the enviable position enjoyed by the rights of the citizens in the present day society.
The mere recognition and restatement of these rights, first under the Universal Declaration of Human Rights as well as other international instruments and their subsequent domestication in India and other state parties under the generis of the fundamental rights cum socio-economic rights of the citizens are not sufficient.
The Indian legal system must and as a matter of fact advanced by going further to provide how these rights may be enforced in the event of breach even by an arm of the government.
The laws have in no small measures vested administrative authorities and public office holders in the administrative bodies with enormous discretionary powers which if not checked will posit a flagrant breach and disregard of rights as the new Order.
The laws having perceived the attendant risk of empowering the administrative body with such magnitude of discretionary powers has, through the judiciary with the instrumentality of various writs enforce and compel the recognition and observance of various human rights by these administrative bodies.
The exercise of judicial control over administrative actions with the instrumentality of writs cannot be examined without laying credence to the legal transplant of various forms of writs from the ancient British Empire during colonialism.
The concept of writs is the tool used by the judicial authorities to control administrative actions and these will be discussed under the following headings:
- Definition of writs
- The established principles guiding the use of writs in India
- The types or forms of writs in India
- The constitutionality of writs in the India legal system
- The role of writs under the India legal system
Definition of Writs
A writ is the formal order of a court which is usually written and issued in the name of the sovereign authority, usually the President or Crown, compelling a person(s) or a body to do or refrain from doing an act which the law either mandates or prohibits them from doing.
The Established Principles Guiding The Use Of Writs In India
The law established the various courts in India and clothed them with their respective jurisdictions which shall serve as a limit to the subject matters they entertain and the consequential reliefs they grant after adjudicating on such subject matter.
The use of writs by courts in India is very restrictive and conservative in the sense the writs which are known under the Indian legal system can only be invoked where the law permits and such scenario is where the available remedies at law are insufficient for the damage caused on the party seeking the issuance of such writ.
The Types or Forms Of Writs In India
The Indian legal system has recognized some specific forms or types of writs which must be invoked strictly in accordance with the law. These writs are:
- The Writ of Habeas Corpus
- The writ of Certiorari
- The writ of Prohibition
- The writ of Quo Warranto
- The Writ of Mandamus
The Writ of Habeas Corpus
This form of writ emanated from two words “Habeas” meaning “Have” while “Corpus” means “the body”. The essence of this form of this writ is to ensure that persons who are detained by the law enforcement agencies or at the instance of various administrative bodies in the exercise of their enormous discretionary powers are so detained within the contemplation of the law.
This writ of habeas corpus has attained the status of jus cogens as the spirit of this writ has been codified under the Universal Declaration of Human and People’s Right and further municipally reenacted as a fundamental human right; that is, the dignity of human person under the provisions of the constitution of the various countries.
In the case of A.D.M. Jabalpur Vs. Shivakant Shukla, the Court rightly observed and held inter alia that Habeas Corpus is aimed at securing the liberty of the citizens from unjustifiable detention in any detention facility of any security organization existing in India provided that there is no basis upon which the said detention may be excused by the law.
The writ of habeas corpus from the foregoing is unarguably the basis of the right to bail as recognized in the criminal justice system of every common law jurisdiction in the world. Where there exists a prima facie basis for permitting the detention of a person the court is obliged to do so for the overriding public interest or state security.
The Courts perform judicial functions in the same vein administrative bodies are vested with the powers to perform quasi-judicial duties which will culminate into a decision and recommendation.
Where the court (in most cases, the inferior court) and administrative bodies in the exercise of their judicial and quasi-judicial functions reach a decision or recommendation which a person understands to be unmeritorious for any reason whatsoever; provided such reason is recognized by the laws, such a person can invoke the writ of certiorari.
Certiorari is a form of writ invoked at the superior court of records particularly the High Courts and the Supreme Court, where these court are afforded the opportunity to review the decision of the lower courts and decisions reached by administrative bodies in the performance of their quasi-judicial junction in order to ascertain the legality and propriety or otherwise of such decision.
Where the courts find any decision examined under the writ of certiorari as improper and lacking in merit, the courts are at all times mandated to quash/set aside the erroneous decision.
The Supreme Court of India had in the case of A. K. Kraipak v. Union of India used this form of writ i.e Certiorari to quash a selection exercise which was contended against for being fraught with bias.
The writ of Prohibition
As the name implies Prohibition means to stop. This form of a writ is used by the court to order an administrative body or a lower court to cease from interfering with a subject matter which they ordinarily lack the mandate to administer. In no small measure, this form of the writ is similar to the above-discussed writ of certiorari.
The writ of Quo Warranto
Instances abound where appointments into various public offices are done in gross violation of the laid down procedure which must be complied with or in the absence of qualification which must be met for the occupation of such position.
Where the above scenario arises the court on the application of an aggrieved party or parties can issue a writ which shall warrant the said wrongful occupier of the public office to appear before the court.
This is to disclose the basis upon which he occupies the said office in the absence of any cogent reason and acceptable qualification the court shall oust the person from continuing to occupy the office which he has been found to be unlawfully occupying.
The Writ of Mandamus
The law which creates a body like a court and other government departments imposes a duty on them which must be performed to ensure the smooth running of the affairs of the state.
Where for any reason a person or the administrative body saddled with any statutory duty fails to discharge this duty the writ of mandamus shall lie against the person or agency compelling them to perform such statutory duty which they are not performing.
However, in the English law, the writ of mandamus shall not be issued unless the applicant for such writ satisfies the court that the person against whom the writ is sought is aware or has been made aware of the said statutory duty which he has willfully and persistently failed to perform.
The Constitutionality of Writs in the India Legal System
Without delving into the various arguments for and against the status of the constitution of every country as the grundnorm, it is generally accepted a practice that laws are made in consonance with the basic legal framework as laid down in the constitution of India.
In the light of the above circumstance, where a law or principle exist and operated in violation of any of the constitutional dictates, such principle shall fail and the constitution shall prevail.
To what extent are these writs recognized by the constitution? By Articles 32 and 226 of the Constitution of India, the forms of writs discussed here above are recognized. It went further to stipulate the circumstance where a given form of the writ will be invoked before the High Court or the Supreme Court of India.
Undoubtedly, writs proffer constitutional remedies and restore the aggrieved parties. The court had not only held that through writs aggrieved parties can conveniently seek the intervention of the courts in enforcing their fundamental rights but had held that access to and obtaining writs are fundamental rights available to an aggrieved party as was held in the commendable case of Daryao v. the State of U. P.
The Role of Writs under the India Legal System
The relevance of writs in the India legal system cannot be overemphasized. The role and relevance of writs in India are that writs serve as a medium of enforcing the constitutional safeguards which are available to the citizens. Writs are the only mirror with which the actions of the government are checked by the court.
While the idea and the usage of writs by the courts to review the actions of the various arms of government is commendable.
As earlier opined the usage of the above-mentioned writs are conservative and restrictive as the court will not be in a haste to issue writs while it is perceived that there are other remedies at law which ought to take care of the grievance of the party seeking the intervention of the court.
The above conservative approach to the issuance of the writ must be a measure set up to guard the possible abuse of the process of the writ by desperate litigants. However, is it is obvious that the said restriction is an unnecessary restriction on the liberty of a person to decide the best approach he deems fit in seeking a remedy through the court.
Therefore the conservative and the restrictive approach towards the issuance writ is in itself, the first administrative cum legislative tyranny which the court must first address before going further into other actions which are contrary to the constitutional safeguard of the citizens.