Where there is a right, there is a remedy, or UBI JUS IBI REMEDIUM. Remedy refers to the way a court will uphold or satisfy a right in the event of a violation. The person whose right is being violated has the right to seek judicial redress to vindicate the violated right. In a legal action, the harmed party must prove that the defendant violated his or her substantive rights.
The Indian Constitution’s anthem is social and economic justice. The Constitution provides for writ remedies that are enforceable by the High Court and the Supreme Court to protect fundamental rights that cannot often be waived. The ability to provide relief to the harmed party includes the award of compensation, which is a significant component of these remedies. This results from the fact that the state not only has a legal obligation to defend the rights guaranteed, but also a social need to make amends to those who are harmed when these rights are violated. On the other hand, the administrative process has grown significantly. As a welfare state is essentially an administrative state, this makes sense.
In India, we have mainly two types of remedies against the actions of authorities. They are the power of judicial review and constitutional remedies. As the word “review” suggests, this refers to the judiciary’s examination of laws, administrative actions, ordinances, orders, bye-laws, rules, regulations, notifications, customs, or usages to determine whether they are consistent with the Constitution and do not curtail its provisions, and to declare them void to the extent of their inconsistency if they are. Although judicial review is a concept that is deeply ingrained in Indian law and lex loci, neither the constitution nor any statute for that matter offers a rigid definition of it.
A writ is a legally binding document that a government body issues on behalf of a sovereign power. This government body is typically a court. Administrative authorities have a great deal of latitude in contemporary democracies. In the lack of clear rules, etc., the use of those powers frequently becomes subjective. Therefore, it is crucial to have control over the discretionary powers in order to ensure that the “Rule of Law” applies to all activities taken by the government. Legal, logical, proper, just, fair, and reasonable judgments made by the authorities are ensured through judicial review of administrative activities in the form of writ jurisdiction. The most crucial elements of writ jurisdictions are the guarantee of natural justice and the protection of fundamental rights.
The courts, who have the authority to interpret statutory laws in their entirety and the corresponding capacity to create judge-made remedies in cases where the statutes are silent, are responsible for the development of judicial review. Judicial Review’s purpose is to serve as a check against abuses of authority that violate private rights, but it is unable to oversee all administrative decisions because its purpose is to review rather than to replace them. The range of Judicial Review has frequently depended on whether a specific function is administrative or judicial in nature. Judicial review generally encompasses all actions and judgments made by judicial tribunals as well as those of executive and administrative bodies as well as those taken by all other authorities where a statutory remedy is not available.
Now, the obvious question that might come to mind is whether the judicial review authority and the constitutional provisions that the court has been tasked with protecting were created by Parliament and, as a result, could be changed by Parliament at any time, leaving the judiciary powerless. That isn’t exactly the case, as the Supreme Court ruled in State of West Bengal v. Committee of Protection of Democratic Rights that the fundamental rights enshrined in the Constitution (including article 32, which grants the SC the authority to issue writs), are inherent and form the fundamental framework of the constitution and cannot be changed by statutory or constitutional provisions. Additionally, the Apex court determined in Kihota v. Zachillhu that judicial review under Articles 32 and 226 is outside the purview of amenability.
The fundamental tenants of democracy, such as the rule of law, the notion of natural justice, and the separation of powers, among many others, are enshrined in the Indian Constitution under several clauses, such as Articles 14 and 22 and 50, respectively. In order to protect the Constitution and its subjects from the whims and fancies of other organs of the government, the constitution’s framers gave the judiciary the power of judicial review so that it could be a check on other two or more branches of the government. The Supreme Court (SC) is the custodian of the Constitution in the context that remedies against any unlawful act and violation of Fundamental Rights by any part of the government can be enacted by invoking the jurisdiction of Supreme Court. In order to keep executive bodies’ actions within the bounds of the Constitution, appellate courts have been given the authority to review administrative authority’s actions under Article 13 (laws inconsistent with Part III are void), Article 32 (power of SC to issue writs), Article 132 (appeal against HC order in SC), Article 226 (power of High Courts to issue writs), and Article 227 (superintendence of High Court over District courts and tribunals).
Power of judicial review can be exercised by both the Supreme Court and high courts
A person may apply to the high court under Article 226 if they believe their legal or fundamental rights have been violated. A person may also file a petition with the Supreme Court under Article 32 for any infringement of a basic right or for a legal issue. The Supreme Court, which is the highest court, has the final say on how the Constitution should be interpreted. The Supreme Court is the highest court in the republic, and every one of the nation must abide by its rulings.
Judicial Review of both state and central laws
Judicial reviews are available for both federal and state laws. According to Article 13(3) of the Indian Constitution, all laws, orders, byelaws, ordinances, constitutional amendments, and all other notifications are subject to judicial scrutiny.
Judicial review is not automatically applied
The idea of judicial review must be drawn to and used. The Supreme Court cannot initiate judicial review on its own behalf. It can only be used when a legal or procedural issue is raised in front of the Honorable court.
Judicial review is not suo motu
The Supreme Court, or any high court for that matter, does not exercise its power to bring a suo motu action to conduct a judicial review. However, this authority is used when a legal issue is raised in court or during a legal action when an incident or set of circumstances where the law is in question happens.
Principle of Procedure established by law
According to Article 21 of the Indian Constitution, “Procedure established by legislation” governs judicial review. The proposed legislation must pass the constitutionality test before it can become a law. On the other hand, the court has the authority to declare it void.
The judiciary is subject to several restrictions when using its judicial review authority. In fact, judicial activism—when the judiciary goes beyond its bounds and interferes with the executive branch’s authority—can result in judicial overreach. The following list includes a few judicial review’s limitations:
- The government’s ability to function is constrained by judicial review. It is only allowed to the degree of determining if the decision-making process was correctly followed, but not the choice itself.
- The judges’ decisions in one case become the benchmark for decisions in other instances.
- Only higher courts like the Supreme Court and the High Courts are allowed to use it.
- Court interventions that are made repeatedly have the potential to erode public confidence in the honesty, excellence, and effectiveness of the political system.
- The judiciary is not permitted to get involved in politics or policy issues unless it is absolutely essential.
- Due to the possibility of personal or selfish motivations influencing judgments, judicial review may be detrimental to the general public.
- When it overrides any existing legislation, it transgresses the constitutionally mandated limit on the use of power.
- Instead of using a separation of powers, India uses a separation of functions.
- The judicial review does not strictly correspond to the notion of separation of powers. The judiciary has the authority to overturn any unlawful laws that the legislature passes thanks to a system of checks and balances that has been put in place.
According to the Cambridge Dictionary, a “legal document from a court of law which commands someone to do something or not to do something” is the definition of writ in its literal sense. According to Article 32(1) of the Indian Constitution, it is every citizen’s fundamental right to petition the Supreme Court for the enforcement of their rights by starting the appropriate legal processes, and Article 32(2) of the Indian Constitution gives the Supreme Court the authority to issue writs, orders, and directions for the same reason. A.32, sometimes referred to as “Right to Constitutional Remedies,” is a fundamental right protected by Part III of the Constitution.
This right has been referred to as the “heart and soul” of the Indian Constitution in the Assam Sanmilita Mahasangha v. Union of India case because without it, all other fundamental rights are meaningless because ubi jus ibi remedium, or “where there is a right, there is a remedy, and without remedy all the rights are futile,” holds true. Similar to this, under A.226(1) of the constitution, HCs have the authority to issue writs to the relevant person or authority—and, depending on the circumstances—even to the government—if such parties fall within their respective spheres of jurisdiction for the enforcement of rights outlined in Part III of the Constitution. In the case of Aruna Ramchandra Shanbaug v. Union of India & Ors, it was established that the HC has the same authority as the SC to give orders and directions.
Types of Writs
Habeas Corpus is a Latin term that means “have the body.” No one “should be deprived of his life or personal liberty except in accordance with the method prescribed by law,” states Article 21. The writ of habeas corpus is in the nature of an order requiring a person who has detained another to present that person before the court so that it can review the validity of the custody and release him if there is no legal justification for the incarceration. It is a procedure by which a person whose personal liberty has been violated can challenge the legality of the act in front of a higher court.
The writ of habeas corpus is intended to provide for a prompt court examination of alleged unlawful restrictions on freedom. Instead of seeking to punish the perpetrator, it seeks to reestablish the release of the retinue. The right to the appellant’s freedom can be determined straight away thanks to the habeas corpus writ. The legal merits of the case or the moral propriety of the confinement or detention are unimportant in writs of habeas corpus.
According to the ruling in A.D.M. Jabalpur v. Shivkant Shukla, “the writ of Habeas Corpus is a method for securing the subject’s liberty by providing an effective means of instant relief from unlawful or unjustified incarceration whether in prison or private custody. The party must be released if there is no valid legal basis for their imprisonment. In cases involving habeas corpus, the courts have taken into account the nation’s current socioeconomic circumstances as well as the fact that many individuals are still uneducated and underprivileged. As a result, the Courts do not reject the petitioner’s plea on the grounds that he has not sufficiently demonstrated the legal basis for his challenge to the detention.
The guidelines for the writ of habeas corpus are as follows:
- The applicant must be in another’s custody.
- Usually, only the detained person and his or her family members are permitted to file a habeas corpus petition, although the court has occasionally approved petitions from strangers if they are made in the public interest.
- The Courts accept both formal and informal applications in relation to this writ because it is not essential to file it in the manner specified. A writ application, for instance, may also be sent via mail. Due to the inhumane treatment of inmates, the Supreme Court approved the appeal submitted through a letter by a co-convict (a stranger) in the case of Sunil Batra v. Delhi Administration. In this instance, the writ of habeas corpus was issued once the letter was recognized as an application.
- A person is not permitted to submit successive applications for the Writ to the same judge. As a result, if an application is denied by one judge, it cannot be granted by another judge of the same court, and if it is, the res judicata principle will prevent it from being granted.
- This Writ would be applicable in cases when the police make an arrest but fail to follow the necessary formalities and procedures. A magistrate or the officer in charge of the police station, for instance, must see the individual who has been arrested.
The writ of certiorari is typically used to challenge quasi-judicial bodies. Certiorari, a Latin term that means “to certify,” A judicial order known as a “certiorari” is one that the supreme court or the high courts issue to a lower court or to any other authority that performs judicial, quasi-judicial, or administrative functions in order to send the records of proceedings that are still pending to the court for review and to determine the legality and validity of the order that was made by that authority. The court annuls or declares invalid a decision made by the relevant authorities using this writ. Although it was initially intended to serve as a supervisory jurisdiction over lower courts, this remedy is now available to any authorities who carry out comparable duties.
The definition of certiorari has been expanded to include administrative decisions in accordance with the idea of natural justice and the demand for fairness in conduct. In A.K. Kraipak v. Union of India, where the selection was contested on the basis of bias, the Hon’ble Supreme court invoked its certiorari powers. The border between administrative and quasi-judicial power was drawn by the Supreme Court. The writ of Certiorari to invalidate the proceeding was issued by the Supreme Court acting within its authority. The purpose of certiorari is to correct. Any constitutional, statutory, or non-statutory body or individual with authority over a citizen’s rights may be served with this writ.
In circumstances involving the Writ of Certiorari, the party that feels wronged by the court’s improper exercise of jurisdiction should file a petition with the superior court. This Writ differs from the Writ of Habeas Corpus in this way because the courts will accept an application for the latter even if the applicant is not the victim of an injustice. Invoked by a petitioner before the High Court under Article 226 and the Supreme Court under Article 32 of the Indian Constitution, the Certiorari action is an initial proceeding before the superior court.
The Certiorari Writ is directed against any judicial or quasi-judicial authority. Therefore, the Writ of Certiorari may be used to review any judicial act that a person or entity performs. It also indicates that the Central, State, and Local Governments are not included in the purview of this Writ’s application because their duties are administrative in nature rather than judicial. Instead, it only applies to judicial authorities or bodies that carry out judicial tasks.
The following grounds may be used to support the issuance of a Writ of Certiorari:
- The superior court may do so on the basis of jurisdiction. The Writ will be issued to quash the order made by the lesser court whenever the inferior court oversteps its jurisdiction, abuses the jurisdiction granted to it, or when the inferior court lacks jurisdiction.
- Another justification for the court to issue a Writ of Certiorari is a violation of natural justice principles. Natural justice principles, such as the one known as Audi alterum partem, which implies that hearing both sides of an argument is crucial to the Indian Constitution, play a significant role in the structure of the Indian Constitution.
- A clear error on the record qualifies as a good reason to issue the Writ of Certiorari. This Writ can be issued when the error stems from a blatant disrespect for the law’s rules rather than just because the judgement was rendered incorrectly.
The following criteria must be met in order for the Writ of Certiorari to be granted:
- The entity or individual has legal standing.
- Such power relates to deciding issues that have an impact on people’s rights.
- Such an entity or individual has a responsibility to carry out its duties in a just manner.
- Such an entity or individual acts outside the scope of their authority or the law.
- A Writ of Certiorari can only be granted against an organization or individual who has acted outside of their authority when all these requirements are met.
The justifications for issuing writs of certiorari and prohibition typically overlap. They also share a lot of characteristics. A judicial order known as a “writ of prohibition” is given to a constitutional, statutory, or non-statutory entity or person when they attempt to exercise a power that is not theirs or when they exceed their authority. It is an all-encompassing remedy for restraining judicial, quasi-judicial, and administrative actions that affect individuals’ rights. The court issues the writ of prohibition to stop the proceedings from going forward because, in essence, it lacks the authority and jurisdiction to decide the case. A special prerogative with a preventive purpose is prohibition.
“Prevention is better than cure” is the overarching tenet. In the case of East India Commercial Co. Ltd. v. Collector of Customs, a writ of prohibition is an order given to a lower court prohibiting it from carrying on with a case on the grounds that the case is out of the court’s purview, exceeds its authority, or is otherwise against the law.
Although the Writs of Certiorari and Prohibition appear to be identical, they differ significantly in one important way. In contrast to the Writ of Certiorari, which the superior court issues after the inferior court has made the final ruling, the Writ of Prohibition is issued by the inferior court prior to the passing of the final order, making it a preventive remedy. Therefore, the Writ of Certiorari is a corrective remedy that invalidates an inferior court’s decision.
- Only when the lesser court or tribunal has exceeded its authority may the Writ be issued. The tribunal or court is violating the provisions of the law.
- The Writ will be issued against the act that is partially outside the court’s jurisdiction in circumstances where the court is acting partially within and partially outside of that jurisdiction.
- The applicant’s right to appeal the inferior court’s decision will not prevent the issuance of this Writ.
- This Writ cannot be issued once an order has been made by the lesser court; it can only be issued while the proceedings are still ongoing. In order to stop the lesser court from acting outside of its authority, the superior court uses this Writ, which is a preventive remedy.
- The Writ of Prohibition cannot be issued against any administrative entity; it can only be issued against judicial or quasi-judicial bodies.
The writ of mandamus is a legal remedy that takes the form of an order from the supreme court or high courts to any lower court, the government, or any other public authority, directing them to perform a “public duty” that has been entrusted to them by statute or common law or to refrain from performing a specific act that they are required by law to refrain from performing. There must be a public duty in order for the writ of mandamus to be granted. The higher courts order an authority to carry out a public obligation or to refrain from carrying out an unlawful act. The Latin translation of the word is “we command.”
Any authority that has judicial, quasi-judicial, or administrative power may be issued a writ of mandamus. The fundamental goal of this writ is to keep the public authorities within their legal boundaries while they carry out their tasks. When a public authority abuses its authority or behaves dishonestly toward it, a writ of mandamus may be issued. According to Halsbury’s Laws of England, “In general, the order will not be granted unless the party made complaints about has knowledge of what it was required to do, so that he had the opportunity to consider whether or not he should abide, and it must be amply demonstrated through evidences that there was a distinguishable demand of that which the party trying to seek the mandamus needs and wants to enforce and that that requirement was met by a refusal.”
The Supreme Court of India is the highest court, hence even if the High Courts are also given the authority to issue such Writs under Article 226, the Supreme Court has the authority to do so. Therefore, a High Court may only issue this Writ under Article 226 to Inferior Courts, such as a district trial court. This Writ is helpful for enforcing the obligation that must be met under the law or as part of one’s office. For instance, the Superior Court may issue a Writ to ensure that the Court’s Judge fulfils his or her obligation to uphold the principles of natural justice. If the Judge fails to do so, this obligation will be observed by the Superior Court. One of the most crucial aspects of the Writ of Mandamus is that it cannot be used against private individuals; as a result, only the State or those who hold positions that fall under the category of public offices may be required to perform an act or refrain from performing one.
The Writ of Mandamus is a discretionary power of the Court and not a right that the petitioner can enforce, hence the Courts may often refuse to grant it. In the following circumstances, the Courts may decline to issue these Writs:
- Where the petitioner’s right has expired
- The authority against whom such a Writ is sought to be issued has already performed the obligation, hence in this case, issuing the Writ would be of no use.
A public-spirited citizen may now request the issuance of the Writ of Mandamus on behalf of others after the Supreme Court took a more liberal stance and the introduction of Public Interest Litigation in India. Normally, the person whose rights have been violated is permitted to apply for the Writs of Mandamus. The following factors must be taken into account in order to issue a Writ of Mandamus:
- It is a public responsibility that is being attempted to be enforced.
- This obligation is legally enforceable.
The court issued a Writ of Mandamus in the matter of Ratlam Municipality v. Vardhi Chand because it was determined that the Municipality was a statutory entity that has obligations to the general public, including the removal of night soil and trash and any other public nuisances. Thus, persons who desire to enforce these Writs on behalf of others in the public interest may apply for a mandamus in addition to those who are directly harmed.
The courts may issue this Writ for the following justifications:
- The petitioner is entitled in accordance with the law. The entire objective of this Writ is to uphold citizens’ rights, yet a plaintiff cannot ask the court to issue a Writ of Mandamus if he has no rights of his own.
- The petitioner’s right has been violated. It is not necessary to have a right in order to issue a writ because anyone can approach the court without having a valid claim. So, the court can only issue a Writ when a right is infringed.
- The petitioner has asked for the authority to carry out their task, but it hasn’t been done. The Writ is issued to compel the authority to perform the act that they are obligated to accomplish by law or by the office they are holding, making it a necessary predicate for the writ of mandamus.
- Lack of a viable alternative remedy that can be used by the petitioner to enforce the authority’s obligation is the final necessary element for a mandate.
- The petitioner must convince the court that the authority owes him a duty and has failed to uphold that duty. All administrative activities that are unlawful in nature may be subject to this Writ.
- The authority has a variety of obligations, some of which must be fulfilled regardless of how they are carried out. Therefore, the Court will issue a Writ of Mandamus if an authority fails to carry out its mandated function. However, when it comes to discretionary obligations, the writ cannot be issued, but the authority must still make a good faith decision about whether to undertake the duty or not.
A petition was filed in the High Court in the case of Vijaya Mehta v. State of Rajasthan to compel the State to fulfil its obligation of forming a commission to investigate climate change and floods in the State. The Writ of Mandamus was not issued in this case because the Court determined that the State Government would only be required to name a commission once a resolution was approved by the Legislature and that it was a discretionary rather than a mandatory responsibility.
By its final ruling, the Income Tax Appellate Tribunal had provided the respondent Income Tax Officer with explicit instructions in the case of Bhopal Sugar Industries Ltd. v. Income Tax Officer, Bhopal. The Income Tax Officer was still refusing to follow the Tribunal’s instructions. The Supreme Court ruled that the Income Tax officer had a statutory obligation to follow the Tribunal’s instructions and that failure to do so constituted grave injustice. Therefore, the Writ of Mandamus was granted to order the official to follow the Tribunal’s instructions.
Quo warranto is a Latin phrase that means “by what authority.” It is a judicial order against someone holding an important public office without the proper credentials. The subject is prompted to identify the authority under which he holds the office or position. This writ seeks to remove individuals from important public positions who are ineligible under the law. The purpose of the writ of Quo warranto is to ratify a citizen’s right to occupy public office. In this writ, the court or judiciary examines the executive’s decision about appointments to public offices made in violation of statutory requirements. It also tries to defend those who have been denied the ability to hold public office.
The Supreme Court noted in University of Mysore v. Govinda Rao that the quo warranto procedure grants the judiciary the jurisdiction and authority to control executive action in making appointments to public offices in violation of the pertinent statutory provisions. It also protects a citizen from being denied a public office to which he may be entitled.
Only when these requirements have been met may the Writ be issued:
- The position that the private person has mistakenly assumed is a public position.
- The Constitution or another law established the position.
- The tasks that come with this position are public in nature.
- The office’s term must be perpetual and cannot be terminated at the whim of any individual or authority.
- The individual who the Writ is being requested to be issued against is actually in possession of the office and is using it.
- This Writ may also be issued in situations when a person formerly qualified to hold the position but is continuing in it after being disqualified.
- Therefore, the Court cannot give this Write in situations when the office is of a private nature. The court stated that the Writ of Quo Warranto cannot be granted against a person who is not holding a public office in the case of Niranjan Kumar Goenka v. The University of Bihar, Muzaffarpur.
In Jamalpur Arya Samaj Sabha v. Dr. D. Rama, the petitioner filed a Writ of Quo Warranto application in the Patna High Court against the Working Committee of the private Bihar Raj Arya Samaj Pratinidhi Sabha. Due to the fact that it was not a public position, the court declined to issue the Writ.
Against whom writs can be issued?
The term “the State” is defined in Article 12 of the Indian Constitution, and it is obvious from the explanation above that only the State is subject to the application of fundamental rights. Thus, it is clear that the institutions and bodies listed in A.12’s concept of the State are subject to writs, which are a tool for enforcing fundamental rights. When it comes to the writs of mandamus, certiorari, and prohibition, it is crucial to allow this question of who can be a subject of a writ. Given that they deal with matters of such a strict nature, the writs of habeas corpus and quo warranto are in a class of their own.
Anyone who has unlawfully held someone, whether a public official or a private person, may request a writ of habeas corpus. Similar to this, a quo warranto may be given to any public official to determine the legal basis for that official’s position, but not to a private person. The difficulty arises in the certiorari and mandamus cases because it is unclear to whom the judiciary can issue orders directing them to carry out or refrain from carrying out certain tasks and to whom it may issue orders directing them to refrain from intervening in particular instances.
Locus Standi (legal standing) for filing writs
Only the aggrieved party, or the person whose rights have been violated and who is now asking the courts to uphold those rights, may petition a writ of certiorari, prohibition, or mandamus. With regard to quo warranto and the writ of habeas corpus, however, it is not exactly the case. Speaking of quo warranto, it is possible for someone to contest their appointment to a public office even if their rights have not been violated in any way. The High Court of Rajasthan had a similar viewpoint when they stated that “the person aggrieved is dispensed to a great extent but it is most definitely not abandoned totally.”
It is hereby asserted that, the legislature has not made particularly aggressive efforts to strike a balance between administrative powers and individual rights. As a result, it is now increasingly up to the judiciary to find a balance between peoples’ personal liberties and the practical requirements of creating a social welfare state. However, the author feels the need to commend the judiciary for meeting the difficult problem of striking a balance between the authority of the State and personal autonomy as well as the preamble’s ethos.
A two-edged sword, judicial review has the potential to seriously harm the country if used improperly. Therefore, when exercising their judicial review authority, courts must rigorously limit their inquiry to the administrative act’s constitutionality or legality (for HC). The SC and HC have been given the jurisdiction and power to uphold fundamental rights by the constitution’s drafters, therefore it is their responsibility to do so fervently, diligently, and watchfully.
Author: Arryan Mohanty,
Symbiosis Law School, Nagpur/Student