Delegated Legislation Control

Procedural and Executive Control

There is no particular procedure for it until the legislature makes it mandatory for the
executive to follow certain rules or procedure.

To follow a particular format it may take a long time which will definitely defeat the actual
objective of the act. Hence, procedural control means that under Parent act certain guidelines
are given which need to be followed while whether it is mandatory or directory to follow it
or not. It includes three components:

1. Pre publication and consultation with an expert authority,

2. Publication of delegated legislation.
3. Laying of rules.
It can be either Mandatory or Directory, to know, certain specified parameters are given:

1. Scheme of the Act.

2. Intention of Legislature.
3. Language used for drafting purpose.
4. Inconvenience caused to the public at large scale.
And these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur
Municipal Council.

Conclusion
If in India, Parliamentary control overlaps the delegated legislation then it is mandatory that
the committee of parliament need to be strong enough and separate laws should be made and
passed which give a uniform rule for laying down and publication purposes. A committee
must contain a special body to look on the delegated work whether it’s going in the right
direction and effectively or not. All the three organs should focus on their work and do not
interrupt unnecessarily to prevent chaos in the system.

Principles of Natural Justice

Introduction
Principle of Natural Justice is derived from the word ‘Jus Natural’ of the Roman law and it
is closely related to Common law and moral principles but is not codified. It is a law of
nature which is not derived from any statute or constitution. The principle of natural justice is
adhered to by all the citizens of civilised State with Supreme importance. In the ancient days
of fair practice, at the time when industrial areas ruled with a harsh and rigid law to hire and
fire, the Supreme court gave its command with the passage of duration and establishment of
social, justice and economy statutory protection for the workmen.

Natural justice simply means to make a sensible and reasonable decision making procedure
on a particular issue. Sometimes, it doesn’t matter what is the reasonable decision but in the
end, what matters is the procedure and who all are engaged in taking the reasonable decision.
It is not restricted within the concept of ‘fairness’ it has different colours and shades which
vary from the context.

Basically, natural justice consists of 3 rules.

The first one is “Hearing rule” which states that the person or party who is affected by the
decision made by the panel of expert members should be given a fair opportunity to express
his point of view to defend himself.

Secondly, “Bias rule” generally expresses that panel of expert should be biased free while
taking the decision. The decision should be given in a free and fair manner which can fulfil
the rule of natural justice.

And thirdly, “Reasoned Decision” which states that order, decision or judgement of the court
given by the Presiding authorities with a valid and reasonable ground.

Origin
The principle of natural justice is a very old concept and it originated at an early age. The
people of Greek and roman were also familiar with this concept. In the days of Kautilya,
arthashastra and Adam were acknowledged the concept of natural justice. According to the
Bible, in the case of Eve and Adam, when they ate the fruit of knowledge, they were
forbidden by the god. Before giving the sentence, eve was given a fair chance to defend
himself and the same process was followed in the case of Adam too.

Later on, the concept of natural justice was accepted by the English jurist. The word natural
justice is derived from the Roman word ‘jus-naturale’ and ‘lex-naturale’ which planned the
principles of natural justice, natural law and equity.

“Natural justice is a sense of what is wrong and what is right.”

In India, this concept was introduced at an early time. In the case of Mohinder Singh Gill vs.
Chief Election Commissioner, the court held that the concept of fairness should be in every
action whether it is judicial, quasi-judicial, administrative and or quasi-administrative work.
Purpose of the principle

 To provide equal opportunity of being heard.

 Concept of Fairness.
 To fulfil the gaps and loopholes of the law.
 To protect the Fundamental Rights.
 Basic features of the Constitution.
 No miscarriage of Justice.
The principles of natural justice should be free from bias and parties should be given fair
opportunity to be heard and all the reasons and decision taken by the court should be
informed by the court to the respective parties.

Supreme court said that arriving at a reasonable and justifiable judgement is the purpose of
judicial and administrative bodies. The main purpose of natural justice is to prevent the act of
miscarriage of justice.

A committee i.e. “Ministers Power” gave 3 essentials procedure related to the principles of
natural justice.

1. No one should be a judge in his own matter.

2. No one can be condemned unheard.
3. The party is entitled to know each and every reason and the decision taken by the
authority.

When it can be claimed?

Natural justice can be claimed when acting judicially or quasi-judicial like panchayat and
tribunals etc. as well. It includes the concept of fairness, basic moral principles and various
different kinds of biases and why the natural justice is required and what all special cases or
situation it includes where the principles of natural justice will not be applicable.

In the case of the Province of Bombay vs. Khushaldas Advani, it was said that natural justice
will be applicable on statutory as it is a basic principle of Natural justice which leads to
fairness and justice.

Effect of function

 Administrative action.
 Civil consequences.
 The doctrine of Legitimate exception.
  Fairness in action.
 Disciplinary proceeding.
In the case of Board of high school vs. Ghanshyam, a student was caught while cheating in
the examination hall and he was debarred due to the act. Supreme Court held that student
cannot file a Public Interest Litigation against the examination board.

High water mark case- Eurasian equipment and company limited vs. State of West Bengal:
Under this case, all the executive engineers were blacklisted. Supreme Court held that
without giving a valid and reasonable ground you cannot blacklist anyone and further he
should be given a fair opportunity of being heard.

Rules of Natural Justice

 NEMO JUDEX IN CAUSA SUA

 AUDI ALTERAM PARTEM
 REASONED DECISION

Nemo Judex In Causa Sua

“No one should be a judge in his own case” because it leads to rule of biases. Bias means an
act which leads to unfair activity whether in a conscious or unconscious stage in relation to
the party or a particular case. Therefore, the necessity of this rule is to make the judge
impartial and given judgement on the basis of evidence recorded as per the case.

Type of Bias

1. Personal Bias.
2. Pecuniary Bias.
3. Subject matter Bias.
4. Departmental Bias.
5. Policy notion Bias.
6. Bias on the account of obstinacy.

Personal bias

Personal bias arises from a relation between the party and deciding authority. Which lead the
deciding authority in a doubtful situation to make an unfair activity and give judgement in
favour of his person. Such equations arise due to various forms of personal and professional
relations.
In order to challenge the administrative action successfully on the ground of personal bias, it
is necessary to give a reasonable reason for bias.

Supreme court held that one of the members of the panel of selection committee his brother
was a candidate in the competition but due to this, the whole procedure of selection cannot be
quashed.

Here, to avoid the act of biases at the turn of his brother respective panel member connected
with the candidate can be requested to go out from the panel of the selection committee. So, a
fair and reasonable decision can be made. Ramanand Prasad Singh vs. UOI.

Pecuniary bias

If any of the judicial body has any kind of financial benefit, how so ever small it may be will
lead to administrative authority to biases.

Subject matter bias

When directly or indirectly the deciding authority is involved in the subject matter of a
particular case.

Muralidhar vs. Kadam Singh The court refused to quash the decision of Election tribunal on
the ground that the chairman’s wife was a member of Congress party whom the petitioner
defeated.

Departmental bias

The problem or issue of departmental bias is very common in every administrative process
and it is not checked effectively and on every small interval period it will lead to negative
concept of fairness will get vanished in the proceeding.

Policy notion bias

Issues arising out of preconceived policy notion is a very dedicated issue. The audience
sitting over there does not expect judges to sit with a blank sheet of paper and give a fair trial
and decision over the matter.

Bias on the account of the obstinacy

Supreme court has discovered new criteria of biases through the unreasonable condition. This
new category emerged from a case where a judge of Calcutta High Court upheld his own
judgement in appeal. A direct violation of the rules of bias is done because no judge can sit in
appeal against in his own case.
Audi Alteram Partem
It simply includes 3 Latin word which basically means that no person can be condemned or
punished by the court without having a fair opportunity of being heard.

In many jurisdictions, a bulk of cases are left undecided without giving a fair opportunity of
being heard.

The literal meaning of this rule is that both parties should be given a fair chance to present
themselves with their relevant points and a fair trial should be conducted.

This is an important rule of natural justice and its pure form is not to penalize anyone without
any valid and reasonable ground. Prior notice should be given to a person so he can prepare
to know what all charges are framed against him. It is also known as a rule of fair hearing.
The components of fair hearing are not fixed or rigid in nature. It varies from case to case and
authority to authority.

Components

Issuance of notice– Valid and proper notice should be given to the required parties of the
matter to further proceed with the procedure of fair trial method. Even if the statute does not
include the provision of issue of notice then it will be given prior to making decisions. This
was held in the case of Fazalbhai vs. custodian.

In the case of Kanda vs. Government of Malaya, the court held that notice must directly and
clearly specify on the matter of bias, facts and circumstances against which needs to be taken.
It’s one of the rights of the individual to defend himself so he should be familiar with the
relevant matter so he may contradict the statement and safeguard himself.

The notice should be with regard to the charges framed against the accused person and
proceeding to be held. He can only be punished on the charges which are mentioned in the
notice, not for any other charges.

Right to present the case and evidence– After receiving the notice he must be given a
reasonable time period to prepare and present his case in a real and effective manner. The
refusal should not be done on the unreasonable ground or due to arbitrary.

Right to Cross Examination– Right of fair hearing includes the right to cross-examination
the statement made by the parties. If tribunals denied the right to cross-examination then it
will violate the principles of natural justice. And all the necessary copies of documents
should be given and failure of that will also encroach the principle. The department should
make available officers who are involved in the procedure of investigating and do cross-
examination. Cross-examination is defined under Section 137 of the Indian Evidence Act,
1872 (amended).
In certain exceptional cases, the right to cross-examination can be denied or rejected. Hari
Nath Mishra vs. Rajendra Medical College, under this case a male student was charged off
some indecent behaviour towards a female student. So, here the right to cross-examination
was denied for the male student as it will lead to embracement for the female student and it
will not also lead to violation of natural justice.

Sometimes it becomes very necessary to keep the identity confidential as there is a threat of
life and property. And the same situation was faced in the case Gurubachan Singh vs. the
State of Bombay.

Let’s take an illustration, In the matter where lawyer and client are involved so, nobody can
force a lawyer to reveal what all information is given by the client to the lawyer in relation to
the case.

In the case of Ludhiana food product, the court held that If the party itself refuse to cross-
examine the witness then it will not fall under miscarriage of natural justice.

Right of Legal representative– In the process of enquiry, every party has the right to have a
legal representative. Each party will be presented by the legally trained person and no one can
deny (A.K.Roy). Similarly, the department has the same right to direct its officer even though
there are investigating officer in conducting an adjudicating proceeding (Sanghi textile
processor vs. Commissioner).

Exceptions

1. During the Emergency period

2. Public interest
3. Express statutory provision
4. Nature of the case is not of a serious kind
5. If it doesn’t affect the status of the individual

Applicability

1. Natural justice is applicable to some of the following points:-

2. Court- except to ex-parte
3. Tribunals
4. Authority entrusted with discretion but subject to legal limitations

Reasoned Decision
Basically, it has 3 grounds on which it relies:-
 1. The aggrieved party has the chance to demonstrate before the appellate and
revisional court that what was the reason which makes the authority to reject it.
2. It is a satisfactory part of the party against whom the decision is made.
3. The responsibility to record reasons works as obstacles against arbitrary action by
the judicial power vested in the executive authority.

Reasoned decision in administrative law refers to the requirement that administrative

decisions must be accompanied by an explanation of the reasoning behind the decision. This
requirement is an important aspect of administrative law and is widely recognized as a basic
principle of natural justice and due process.

The requirement for a reasoned decision is intended to ensure that administrative decisions
are made in a fair, impartial, and transparent manner. When an administrative decision is
accompanied by a clear explanation of the reasoning behind the decision, it becomes possible
for affected parties to understand the basis for the decision and to determine whether the
decision was made in accordance with the law and the facts. This helps to ensure that
administrative decisions are made in a fair and impartial manner, and that they are subject to
meaningful review and scrutiny.

The requirement for a reasoned decision is also intended to promote accountability and
transparency in the administrative decision-making process. When administrative decisions
are accompanied by clear explanations of the reasoning behind the decisions, it becomes
easier for the public to hold administrative authorities accountable for their decisions. This
helps to promote public trust in the administrative system, and helps to ensure that
administrative decisions are made in a manner that is open and transparent.

In many legal systems, the requirement for a reasoned decision is implemented through the
use of administrative law. Administrative law sets out the rules and procedures that
administrative authorities must follow when making decisions, and provides guidance on the
type of reasoning that must be provided to support a decision. For example, in some legal
systems, administrative decisions must be supported by evidence and must be accompanied
by a statement of the facts and the law that was relied on to make the decision.

In addition to the requirement for a reasoned decision, administrative law also provides for
the right of affected parties to challenge administrative decisions. This right is an important
aspect of administrative law and helps to ensure that administrative decisions are subject to
meaningful review and scrutiny. When an affected party is dissatisfied with an administrative
decision, they may challenge the decision by seeking a review or appeal. This provides an
opportunity for the decision to be reviewed by a higher authority, and for the reasoning
behind the decision to be scrutinized and evaluated.

The requirement for a reasoned decision is an important aspect of administrative law, and is
widely recognized as a basic principle of natural justice and due process. The requirement
helps to ensure that administrative decisions are made in a fair, impartial, and transparent
manner, and that they are subject to meaningful review and scrutiny. By promoting
accountability and transparency in the administrative decision-making process, the
requirement helps to ensure that administrative decisions are made in a manner that is open
and transparent, and that they are subject to meaningful review and scrutiny.

There have been several landmark reasoned decisions in India that have had a significant
impact on the legal landscape in the country. Here are a few notable examples:

1. Maneka Gandhi v. Union of India (1978): This case established the principle that the
government must provide reasons for its decisions and that those reasons must be fair
and reasonable. The court held that the right to know the reasons for a decision is an
essential aspect of the principle of natural justice.
2. Kesavananda Bharati v. State of Kerala (1973): This landmark judgement is famous
for laying down the basic structure doctrine, which states that there are certain basic
features of the Indian Constitution that cannot be amended by a constitutional
amendment. The court held that the right to life and personal liberty is a basic feature
of the Constitution, and that this right cannot be taken away even by a constitutional
amendment.
3. Golak Nath v. State of Punjab (1967): This case dealt with the issue of the power of
Parliament to amend the Constitution. The court held that Parliament’s power to
amend the Constitution is not unlimited and that it cannot be used to destroy or
emasculate the basic structure of the Constitution.

Conclusion
The principles of natural justice have been adopted and followed by the judiciary to protect
public rights against the arbitrary decision by the administrative authority. One can easily see
that the rule of natural justice include the concept of fairness: they stay alive and support to
safeguard the fair dealing.

So at all the stages of the procedure if any authority is given off the judicial function is not
purely accepted but the main motive of the principal is to prevent the miscarriage of justice. It
is supreme to note that any decision or order which violates the natural justice will be
declared as null and void in nature, hence one must carry in mind that the principles of
natural justice are essential for any administrative settlement to be held valid.

The principle of natural justice is not confined to restricted walls the applicability of the
principle but depends upon the characteristics of jurisdiction, grant to the administrative
authority and upon the nature of rights affected of the individual.

Doctrine Of Legitimate Expectation In India

Introduction

The Doctrine of Legitimate Expectation forms is a crucial concept in Administrative Law.

Not only is it important to study this doctrine from a theoretical point of view, but is also
extremely important in practical life. The doctrine of legitimate expectation creates locus
standi for an aggrieved party to either raise a concern or challenge the administrative action
pertaining to a certain condition in the form of expectation. This doctrine acts as a safeguard
measure for the rights of an aggrieved party based on ‘legitimate expectation’ ” in the case
where an administrative order affects the aggrieved party adversely through a legislative
order. In most cases, this particular doctrine has been enforced in the area of natural justice.
In the case of Schmidt & Anr v Secretary of State for Home Affairs[i], Lord Denning was of
the opinion that the proposition that administrative authority should give a hearing when a
person’s liberty, property, right, interest, or even some legitimate expectation was being
affected.

Meaning of the Doctrine of Legitimate Expectation

A person may have a legitimate expectation of being treated in a certain way by an

administrative authority even though he has no legal right in private law to receive such
treatment. The expectation may arise from a representation or promise made by the authority
including an implied representation or from consistent past practice.[ii]As per this doctrine, it
is possible to make an administrative authority answerable where there lies a legitimate
expectation. Although the “legitimate expectation” may not necessarily flow from a legal
right, if there exists an expectation that flows from a promise or an established practice, the
doctrine of legitimate expectation will stand strong. Nonetheless, it is pertinent to make a
note of the fact that the legitimate expectation must at all costs be valid and reasonable. This
doctrine mandates fairness in administrative action arising from a promise or an established
practice. When the public authority fails to act as per the expectation, it will be considered as
a breach of the rule of law that mandates predictability and would ultimately be ultra
vires. [iii]

Conditions for a valid ‘Legitimate Expectation’

While making an argument on such grounds, it is pertinent to understand that the doctrine
cannot be invoked on ambiguous, illogical, invalid or unreasonable grounds. This doctrine
may only be invoked in conditions where there is either explicit promise made by the
administrative authority or where an established practice has been followed. A similar
observation was made in the case of Madras City Wine Merchants Association v. State of
Tamil Nadu[iv]. In the aforementioned case, it was decided that if an express promise has
been held out or some kind of representation has been made by a public authority, provided
that such a promise or representation is not vague, unclear and unambiguous or where there
exists a past practice (established practice) which the claimant can reasonably expect to be
followed in his case as well, then the claimant may argue on the grounds of this doctrine.
Furthermore, this kind of expectation, in all cases, must be reasonable. Where a person has no
enforceable right but is still affected or likely to be affected by the order passed by a public
authority, the doctrine of legitimate expectation may be invoked and such a person may have
a legitimate expectation of being treated in a particular manner by an administrative
authority.[v]Since this doctrine lays emphasis on certain terms like “express or explicit
promise” and “established or regular practice”, it is necessary to delve deeper and study the
same.
1. Express Promise

Legitimate, or reasonable, the expectation may arise from an express promise given on behalf
of a public authority or from the existence of a regular practice which the claimant can
reasonably expect to continue. [vi] The legitimate expectation may be a result of some
explicitly made promise or statement by an administrative authority. It is extremely important
to make sure that such an express promise is free from vagueness and ambiguity and is
precise and clear. In the case of the Re Liverpool Taxi Owners Association[vii], it was held
that legitimate expectations may indeed flow from an express promise made by a public
authority.

2. Established Practice

In the case of Council of Civil Service Unions and others v Minister for the Civil
Service[viii], it was observed that legitimate expectation could flow from either an express
statement or promise or because of the presence of a regular or established practice. A
claimant may expect such an established practice to be followed in his case as well.

An expectation may be disregarded when the statute clearly provided for something, in such a
case, one’s legitimate expectation cannot be otherwise. Another significant point that one
must not give a blind eye to is that when there is a clear change of policy, the expectation
founded on the older policy may not stand strong. Legitimate expectation can at the most be
one of the grounds which may give rise to judicial review but the granting of relief is very
much limited.[ix]

Types of Legitimate Expectations

Primarily, there are two types of legitimate expectations. They are as follows:

1. Procedural Legitimate Expectation

Such a legitimate expectation arises when the person thinks that a specific course of
procedures will be followed by the administrative authority before making the decision. For
instance, where a person had expected a specific policy to be followed that was already
existing but was not followed or when a person expected to be subjected to a specific policy
but was later subjected to some other policy or where the person expected to be granted a
hearing but was deprived of it. These instances are not restrictive or limited and there could
be many more instances of procedural legitimate expectation. The procedure could be in the
form of a hearing, enquiry, representation, etc. It revolves around the notion of administrative
actions being devoid of arbitrary nature. A person having a legitimate expectation must be
granted the opportunity of being heard.
2. Substantive Legitimate Expectation

This kind of legitimate expectation arises when a person has been induced by a public
authority of such expectation where he would have been granted some substantive benefit.
The substantive legitimate expectation arises where a person has a particular benefit
following from a promise or representation made by the public authority. Notwithstanding
that, it is believed that this kind of legitimate expectation is may not have a strong ground and
may falter due to an overriding public interest.

How to assess a case of Legitimate Expectation?

Some cases have provided a structured pathway in assessing cases pertaining to the subject of
legitimate expectation. In one such case[x], a British Court of Appeal laid down some
guidelines. It was stated that the courts while dealing with this doctrine, must not disregard
the following three questions:

1. What has the public authority promised to do or has been doing via an
established practice?
2. Has the public authority acted unlawfully concerning the commitment of such
nature?
3. What the court shall do in such situations?
Judicial Review of Administrative Actions

Judicial review may help exercising judicial control over certain administrative actions. This
doctrine is applicable strictly with respect to administrative actions. A mere argument of
procedural fairness may not invoke this doctrine against the legislation. The recourse
of judicial review in administrative action is possible when the decision-making authority has
committed an error of law, or in a situation where the decision-making authority has
displayed an unreasonable action that no reasonable authority would have made the done, or
where the decision making authority has acted unfairly.[xi]The subject matter of the judicial
review is a decision made by some person or a refusal by him to make a decision. The said
decision must have some kind of negative consequence i.e., it must affect the person/s. A
person can be said to have been affected by the order of the administrative authority when the
rights or obligations of that person have been altered or by depriving the person of particular
benefits. The benefits must have either been promised or assured to him by the decision-
maker where he has been told that he would be given an opportunity to be heard if the
benefits are to be withdrawn, or where the decision-maker has permitted the enjoyment of
such benefits in the past unless some rational reasoning has been given to him for
withdrawing such benefits.

Indian Cases on Doctrine of Legitimate Expectation

1. State of Kerala Vs. K.G. Madhavan Pillai, (1988) 4 SCC 669

In the aforementioned case, the government had issued a sanction to the respondent to open a
new unaided school and to upgrade the existing ones. A few days later, a new direction was
given wherein they were asked to keep the sanction in abeyance. It was argued that this
violates the Principles of Natural Justice. Subsequently, the court was of the opinion that the
former sanction gave rise to legitimate expectation in the minds of the respondents which was
consequently violated by the latter direction of the government, that too, was devoid of the
adherence to the principles of Natural Justice.
2. MRF Ltd Kottayam vs Asst Commissioner, Sales Tax (2006) 8 SCC 702

In this case, a very interesting observation was made. It was stated that public interest would
have an upper hand over the legitimate expectation in question. The public interest may
override such a legitimate expectation. Hence, a counter-argument to the argument raising
concern over legitimate expectation could be the fact that there lies a greater public interest in
not acting as per the said legitimate expectation. A similar observation was made in the case
of Howrah Municipal Corporation v. Ganges Road Company Ltd[xii] where it was held that
one cannot claim on the grounds of this doctrine when a statutory provision was enforced
keeping in mind the public interest.

WRIT OF HABEAS CORPUS

Introduction
Constitution of India is the supreme law of the land which lays down rules and regulations for
the protection of the rights of the people and imposed duties over them. This vast literature is
considered as the guardian and protector of the fundamental rights guaranteed to an
individual. The right of WRITS is one such right available to a person. The provisions of the
Indian constitution are sanctioned by law thus the judiciary has the independent authority
over the matters in which writs are to be issued. The concept of the writs is to enable the
immediate determination of the rights of an individual and help the person to achieve the
benefit of his right.

There are five types of writs in our constitution those are as follows:

 Writ of habeas corpus

Habeas corpus is the Latin term which means ‘you must have the body’. It is the order issued
by the court to present the detenu before the court and to check whether the arrest was lawful
or not.

 Writ of Mandamus
The writ of mandamus is the order or command issued by any statute or any authority
sanctioned by law to any person, corporation or any other authority in order to perform any
public duty.

 Writ of prohibition
The writ of prohibition means is a writ issued by the higher authority to its subordinate
authority in order to stop something which the law prohibits. This writ can only be issued
against a judicial and quasi-judicial body.

 Writ of certiorari
The term certiorari is a Latin word which means to be informed. This writ is issued by the
higher court to review the actions of the lower court.

 Writ of quo warranto

Writ of quo warranto means by what authority. This writ is issued which requires a person to
show by what authority he has exercised his powers or rights.

The supreme court under Article 32 and the high court under Article 226 have the power to
issue writs of these nature. Though under Article 32 the supreme courts issue the writs if
there is any violation of the fundamental rights of a person but the High Court under Article
226 has a wider jurisdiction to issue the writ for both a violation of the legal as well as the
fundamental rights.

Meaning of the writ of habeas corpus

The writ of habeas corpus is the legal procedure which acts as a remedial measure for the
person who is illegally detained. The term habeas corpus is the Latin word which means to
bring or present the body before the court. It is the most important right available to the
person detained unlawfully. The basic purpose for which this writ is used is to release a
person from unlawful detention or imprisonment. This writ is of great importance as it
determines a person his right to freedom and personal liberty.

Illustration

A has been taken into custody by B a police officer without a warrant. All the efforts made by
A’s family to know the whereabouts of A turned out to be futile. As he was detained
wrongfully by B (police officer), the writ of habeas corpus can be filed in court by A’s family
on his behalf.

Nature of the writ of habeas corpus

The concept of habeas corpus can be traced way back in the thirteenth century. The writ
of Habeas corpus cum causa is an order calling upon the person who has detained another
person, to present the person in the court and justify his actions that on what grounds and
under what authority he has confined that person. If the court doesn’t find any legal
justifications for the cause, then it will order for the immediate release of the person confined
or imprisoned.
Who may apply for the writ of habeas corpus
To answer this question the courts have made this clear in various cases that the person who
may apply for the writ of habeas corpus should be

 The person confined or detained illegally.

 The person who is aware of the benefit of the case.
 The person who is familiar with the facts and circumstances of the case and
willingly files an application of the writ of habeas corpus under article 32 and 226
of the Indian constitution.

When the writ of habeas corpus is refused

The following conditions when the writ of habeas corpus is refused are as follows:

 When the court doesn’t have the territorial jurisdiction over the detainer.
 When the detention of a person is connected with the order of the court.
 When the person detained is already set free.
 When the confinement has been legitimized by the removal of the defects.
 The writ of habeas corpus will not be available during an emergency.
 When the competent court dismisses the petition on the grounds of merits.

Whether the doctrine of res judicata applies to this writ

When it comes to the illegal confinement of a person, the doctrine of res judicata is not
applicable. Under article 32 successive petition for the writ of habeas corpus can be filed in
the court with fresh grounds which were not covered in the earlier petition filed for the same.
The petition for habeas corpus is maintainable if it is filed in the forum having its
independent existence and separate jurisdiction and competency.

In Lallubhai Jogibhai Patel vs Union Of India & Ors on 15 December, 1980 it was held that
no second petition for the writ of habeas corpus is maintainable in the court if filed on the
same grounds as of the first one.

Preventive detention
Preventive detention is the confinement or imprisonment of a person in order to prevent him
from committing any kind of offence in the future. It does not act as a punishment or penalty
imposed upon a person, it’s just a precautionary method. The concept of preventive detention
and habeas corpus comes hand in hand. Article 22 of the Indian constitution states the
procedure of preventive detention and requires a strict adherence of law. Parliament is
authorized to make laws for preventive detention for various reasons connected with it like:
  Defence.
 Foreign relations or foreign affairs of the country.
 With the very purpose of providing security to India and its state.
 For the maintenance of public order.
However, such detention may be monitored through judicial review by checking its
preconditions.

Alternative remedy
If the defendant gives lawful justification for the detention or confinement the writ of habeas
corpus may not be issued by the court. However, in case of an alternative remedy, the
applicant still has the right of issuing the writ of habeas corpus. It is not refused on the
grounds of availability of the alternative remedy to the applicant.

Burden of proof
The burden of proof lies over the person or the authority to satisfy the court that the detention
or confinement of the person was made on legal grounds. And if the detenu alleges that the
confinement was malicious and outside the jurisdiction of the authority detaining the person
than the burden of proof lies over the detenu.

Territorial jurisdiction
Under Article 32 of the Indian constitution, the supreme court has jurisdiction over all the
authorities within and outside the territorial jurisdiction of India. Under Article 226 the high
court is empowered to deal with the matter when the high court is having control over that
authority and the probable cause of action arises.

Writ of habeas corpus during an emergency proclamation

The writ of habeas corpus is maintainable during an emergency proclamation, as after
the 44th amendment in 1978 it was stated that fundamental rights enshrined under article 20
and 21 cannot be suspended. And for the enforcement of these rights, the writ petition can be
filed in court.

Cases
Additional district magistrate of Jabalpur v. Shiv Kant Shukla 1976 SC 1207

This case is also known as the habeas corpus case and it was based upon the grounds of
issuance and the viability aspect of this writ. This whole case spins around the situation when
the emergency was proclaimed and the question was raised whether the writ of habeas corpus
is maintainable in this situation or not. It was held that as in the case of Liversidge v.
Anderson during emergency all the rights were held suspended, the same was held in the
instant case where a state has the power to restrain the rights especially right to life enshrined
under article 21 of the Indian constitution in an emergency situation. This decision was
considered to be the darkest day of Indian history.

Sheela Barse v. State of Maharashtra 1983 SCC 96

In the instant case, a letter was written to the supreme court regarding the condition of the
women prisoners who were assaulted in the lockup and the writ petition was filed regarding
this situation by the plaintiff who was a human rights activists. An investigative authority was
sent by the court for crosschecking the situation and the allegations made by the plaintiff. It
was found that the allegations were correct. It was held that if a person detained or confined
can’t file an application for the writ than some other person can file it on his behalf which
quashed the locus standi approach.

Sunil Batra v. Delhi Administration 1980 AIR 1579

In the instant case, it was held by the court that the writ petition of habeas corpus can be filed
in the court that not only for the wrongful or illegal confinement of the prisoner but also for
his protection from any kind of ill-treatment and discrimination by the authority responsible
for his detention. Thus the petition can be filed for the unlawful detention and checks the
manner in which the detention was caused.

A.K. Gopalan v. The State of Madras

In the instant case, the preventive detention act was examined based on its constitutional
validity. If a legislature restraints a person from his personal liberty should be competent
enough to make such law in the first place. Detention is turned out to be unlawful if the law
backing it up is unlawful. A person has the right to approach the court. A person can file an
appeal in the supreme court against the order of high court in case of accepting or refusing
the application for the writ of habeas corpus.

MANDAMUS

Introduction
In pursuance of the Right to Constitutional Remedies for the violation of any of the enlisted
fundamental rights under Part III or others that are enshrined in the Constitution of India or
otherwise, both the Supreme Court and the High Courts have been vested with the authority
of issuing ‘writs’ under Article 32 and 226 respectively. There are five types of writs that are
issued in India: Habeas Corpus, Prohibition, Certiorari, Mandamus and Quo Warranto. Out of
these, the writ of mandamus, which is a Latin term for ‘we command’, is an authoritative writ
issued by a higher court to oblige a lower court or some government official(s) to dispense
their sanctioned duties compulsorily and correctly.
Writ of mandamus
According to the Ninth Edition of Black’s Law Dictionary, writ of mandamus is one that is
issued against an inferior court, a governmental body or officer by a superior court to rectify
an action of the past or omission to act along the lines of the responsibility that they are
entitled to. Writ of Mandamus can also be issued against public corporations and tribunals.
As it is directed to set the indolent authorities to task, it is also described as a “wakening
call”, dictating their activity and setting them in action in pursuance of discharging public
duty.

Grounds of the writ of mandamus

Mandamus is remedial in nature and cannot be expressed as a writ of right as it is issued only
at the discretion of the court after the applicant of the same is able to prove to the Court that
some utilitarian or just question would be answered by the writ. The essential grounds
necessary for the issuance of Mandamus have been enlisted below:

 There exists a legally sanctioned right of the petitioner or the applicant of the writ
and a violation or compromise of this right has been committed.
 The infringement of the rights of an applicant can be done by a public authority in
the following manners:

1. Crossing the limits of the powers and duties vested to their office.
2. Failure or omission to act responsibly according to the conditions laid down by the
law for the exercise of their power.
3. Denial by an official or authority to perform their statutory duties.
4. A complete disregard for or contravention of the principles of natural justice.

 Another ground for the legality of issuing the writ of mandamus is the failure to
act or perform the legal duty despite being demanded by the applicant for the
same. This was also upheld by the Supreme Court in Saraswati Industrial
Syndicate v. Union of India.
 The writ should be applied for in good faith, without any ulterior motive or intent
on the part of the applicant.
 Lastly, the writ of mandamus can only be issued when no other recourse, redressal
mechanism or legal alternatives have been left at the disposal of the applicant.

Mandamus in Indian law prior to the constitution

The Writ of Mandamus was introduced in India by the British in the year 1773 with the
establishment of the Supreme Court of Calcutta and all the supreme courts that were situated
in the Presidency Towns (Calcutta, Madras and Bombay) were vested with the powers of
issuing this writ under the Letters Patent Act. Later on, in the year 1877, the writ of
mandamus from the Letters Patent Act was replaced by an order under the then newly
introduced Specific Relief Act that required the completion or forbearing of a specific
activity within the “local limits of its ordinary civil jurisdiction” by a competent authorised
official.

However, with the institutionalisation of the constitutional regime in India and the
introduction of the new Specific Relief Act in 1963, this order incorporated within the 1877’s
law was done away with as the provision for writ of mandamus was already enshrined in the
Constitution. The latter provision was far more competent and had a wider scope of
applicability while the former was pretty restrictive in nature as it applied only to a particular
nature of cases. Additionally, the constitutional provision also provided the High Courts with
the power of issuing writs, thus including mandamus as well for the enforcement in cases of
contravention of fundamental as well as legal rights.

Framework of law in relation to mandamus

The Supreme Court of India has been authorised with the power of issuing writs under
Article 32 of the Constitution. Out of the five categories of writs that are a part of the Indian
legal framework, the most appropriate for the enforcement of the rights of the claimant shall
be applied by the court. Rightly described as the “very soul of the Constitution and the very
heart of it” by Dr Bhimrao Ambedkar, Right to Constitutional Remedies or Article 32 states
that there must be a clear breach of fundamental rights not incorporating contentious factual
questions. Under Article 32, the writ cannot be issued for the enforcement of governmental
policy and a statute violating a fundamental right can be contended against by mandamus.
Any executive or statutory order can be enforced by Mandamus following due process of
law. Over the course of years, it has been found that continuous mandamus or the writ of
mandamus issued against a prolonged failure to act on the part of state agencies.

Although the law is pretty clear with regards to the cases or instances where the applicability
of the writ of mandamus stands, it has not been an easy decision for the Indian courts and
judiciary applying this writ in distinct cases. Thus, it has become a significant question of law
in the modern-day legal system of India.

Types of mandamus
There are three types of Mandamus that exist within the Indian jurisprudence and has been
developed over the years through case laws and judgements. These have been discussed
under the following headings.

 Certiorarified mandamus

The basic difference between the two writs of certiorari and mandamus can be explained on
the basis of jurisdiction; while former provides for judicial review of an already tried case by
a subordinate court and checks whether a jurisdiction has been exceeded, the latter takes into
account whether a jurisdiction has been refused from getting exercise. If Certiorari stands, the
order of the subordinate court or tribunal stands quashed and void. In certain cases with
peculiar facts and moot issues, both the writs of certiorari and mandamus complement each
other provided the issuance of both are warranted by the circumstances of the case in hand
and do not end up discharging the issue altogether. A case might be rescinded due to
application of certiorari and may end up getting decided by following the due process of law
because of a subsequent issuance of mandamus. This kind of writ is known as certiorarified
mandamus.

In Y. Mahaboob Sheriff & others v. Mysore State Transport Authority , the renewal of a
permit, despite getting sanctioned for three years, was only granted for a year. In pursuance
of the writ of certiorari, the Supreme Court of India invalidated the previous judicial order of
the subordinate court and in the effect of the writ of mandamus, directed the concerned
authority for the renewal of three years. This is an instance of certiorarified mandamus.

 Anticipatory mandamus

In Maganbhai Ishwarbhai Patel v. Union of India, the group of petitioners issued a writ of
anticipatory mandamus in order to restrain the Government of India from sanctioning certain
areas lying in Rann of Kutch to Pakistan as a part of the award. The Court held that the
mandamus shall not be granted merely on the suspicion of the violation of rights unless some
actual damage or infringement has happened.

In plenty of other cases, both in India and other countries, it has been held by the courts of
law that on the mere basis of perturbation of getting one’s statutory or fundamental rights
violated or an anticipatory omission of the duties or responsibilities of a public authority are
not sufficient grounds for granting the issuance of a writ of mandamus.

 Continuing mandamus

In certain cases, it shall be deemed fit by the court of law that mere issuing of the writ of
mandamus will not be sufficient for exacting the task from the public authority and that
continuous supervision of the situation needs to be conducted in order to ensure the proper
following of the verdict. This is done by the courts by providing for court visits and
presenting a report of compliance of their verdict on behalf of the public authority. This
legalese has developed and become a part of the jurisprudence after much judicial activism
and several public interest litigations. The Supreme Court, in Chhetriya Pardushan Mukti
Samiti v. State of Uttar Pradesh , held that besides ensuring the adequate enforcement of the
fundamental rights, it is also the Court’s responsibility to ascertain the prevention of misuse
of authoritative power and full adherence of the order.

Limitations
Writ of mandamus is basically a public law remedy of the common law system that, though
can be rightfully applied for by any citizen whose rights have been violated by governmental
or judicial bodies, is not sanctioned to be availed in cases of private wrongs. The writ of
mandamus cannot be issued against the following:
 1. Private persons, institutions or organizations, if default, cannot be held accountable
for their inaction by the issuance of mandamus.
2. If the duty or the activity that is in the question of the public authority is not
mandated by a compulsory obligation but is discretionary in nature, the writ of
mandamus cannot be issued for the enforcement of such duties.
3. The writ of mandamus cannot be issued against the Head of the State, that is, the
President on a national level or Governor at the state level.
4. The incumbent Chief Justice of the Supreme Court and distinct high courts are also
exempted from being held accountable by the issuance of a writ of mandamus.
5. For the enforcement of a contractual relationship that is private in nature, writ of
mandamus cannot be issued for its enforcement.
6. A writ of mandamus cannot be issued against any Member of Parliament (MP of
Lok Sabha or Rajya Sabha) and any Member of Legislative Assembly (MLA) of
any state for the purpose of providing a smooth functioning and conduct of the
parliamentary deliberations.
7. Mandamus cannot be issued against any legislative institution which is passing
such a law that is in contravention of the fundamental rights promised under Part
III of the Constitution. This was subsequently upheld by the apex court in Chotey
Lal v. State of Uttar Pradesh & Ors. The petitioner had moved a writ petition
against the State of Uttar Pradesh as the state legislature had passed Zamindari
Abolition and Land Reforms Bill in 1951 which was considered to be
unconstitutional according to the applicant.
8. Electoral matters have been kept away from the purview of the writ of Mandamus
and those officials that are engaged in different levels of the electoral process
cannot be directed by mandamus. However, this is applicable only for elections to
Union and state parliament. Mandamus can be issued in matters of contention
relating to Municipal level elections.

Prohibition: Prohibition is a legal term that implies ‘to prohibit, restrain, prevent, or forbid.’
A higher court issues a writ of prohibition against the lower court to prevent it from
exceeding its authority or going beyond its required jurisdiction. It cannot be enforced against
administrative agencies, statutory authorities, or private persons or enterprises. It is
exclusively applicable to judicial and quasi-judicial bodies.

Grounds on which the writ of Prohibition can be issued

A writ of prohibition is issued under particular conditions when the lower or subordinate
court or tribunal-

1. Acts without its jurisdiction or exceeds its jurisdiction, i.e., jurisdictional error;
2. Goes against its powers, i.e., acted as invalid law;
3. Violates natural justice standards, i.e., failure of natural justice which is equity and
equality;
 4. Acts ultra vires or unconstitutionally;
5. Acts in violation of basic rights;
6. Behaves as an error on the basis of the record;
7. Truthful judgments are not supported by evidence.

How is the writ of Prohibition issued

Any High Court or the Supreme Court of India dealing with Articles 226 or 32 of the Indian
Constitution respectively issues a prohibition writ. It is issued against lower courts, tribunals,
inferior courts, or quasi-judicial bodies to restrict or prevent these courts from acting against
jurisdiction or from exercising powers that violate basic rights. This form of writ is issued
when these Courts’ jurisdictions are exceeded or their powers are breached. It can only be
issued against judicial and quasi-judicial bodies, not against private individuals or entities and
administrative bodies. It is also known as a ‘Stay Order.’ This writ limits or prevents them
from doing an act from happening.

Case laws regarding the writ of Prohibition

Brij Khandelwal v. India (1975)

The Delhi High Court refused to issue a prohibition against the Central Government from
engaging in a boundary dispute agreement with Sri Lanka. The judgment was founded on the
basis that there is no bar against the government performing executive or administrative
duties. With the idea of natural justice and the growth of the concept of fairness, there is no
longer a tolerable view, even in administrative tasks. The stiffness about certiorari or
prohibition writ has also been softened. If any of the grounds on which the writ of prohibition
is issued is present, the writ can now be issued to anybody, regardless of the nature of the
duty fulfilled by it. Prohibition is currently considered as a broad remedy for judicial control
of impacting quasi-judicial as well as administrative actions.

S. Govind Menon v. Union of India (1967)

A writ of prohibition can be issued in both circumstances of excess jurisdiction and absence
of jurisdiction. Writ of prohibition was issued by a higher court, namely the Kerala High
Court, to a lower court in order to take over jurisdiction that was not initially vested, or in
other words, to compel lower courts to retain their jurisdictional limitations. The writ can be
issued when there is an excess of jurisdiction as well as when there is an absence of
jurisdiction.

Hari Vishnu v. Syed Ahmed Ishaque (1955)

The case dealt with distinctions between writs of prohibition and certiorari. The verdict, in
this case, distinguished between certiorari and prohibition writs and said that when the lower
court issues a decision, the petitioner must file a certiorari petition since prohibition writs can
only be submitted when judgment has not yet been given.

Difference between writ of certiorari and prohibition

Writ of Certiorari Writ of Prohibition

The writ of prohibition is issued by the higher Courts

The writ of certiorari is issued by the higher
to prevent or stop lower Courts from exceeding their
Courts to reconsider lower Court decisions.
jurisdiction and acting against their powers.

It is issued after the lower Courts have It is issued before the lower Courts have completed
declared their judgments. their proceedings.

The writ of certiorari is employed more as a

The writ of prohibition is intended to prevent rather
preventive measure, quashing a judgment
than cure.
previously rendered by the lower Court.

It means ‘to be certified’. It means ‘to forbid or to prevent’.

It is both preventative and remedial. It is only a preventive measure.

It can prevent and also act as a cure to the It can prevent the lower authority from proceeding
judgment given. further.

It is a later stage. It is the starting stage.

It is a review of a case tried in a lower court. It prohibits the lower Court from issuing a decision.

It is the quashing of judgment. It prevents judgments.

Conclusion
As a result, the prohibition writ serves as a preventive measure rather than a remedy. It will
be issued when the reasons are met, most notably when there is an excess of authority or lack
of jurisdiction created by the lower courts, and also when they act against their powers and
natural justice. Under these circumstances, a writ will be issued either by the Supreme Court
under Article 32 of the Indian Constitution or by the High Court under Article 226 of the
Indian Constitution. The writ of prohibition and the writ of certiorari are identical with minor
differences.
The prohibition writ is issued by the higher courts to the subordinate courts to prevent them
from doing something or stopping them from giving judgments, whereas the certiorari writ is
issued by the higher courts to quash the granted judgments. It is a quick and effective remedy
for preventing the lower court from acting in a way that is contrary to jurisdiction or natural
justice. It is also known as a ‘Stay Order,’ and it prevents the lower court from hearing which
is a primary proceeding. It gives redress to both judicial and quasi-judicial bodies with the
capacity to judge or rule on any issue.

Certiorari

Basically it means “to be certified”. It can be issued by the Supreme Court or the High Court
to quash an order already passed by a lower court. It could also be used by the Supreme Court
to transfer a particular matter to it or some other superior judicial authority for consideration.

The writ of Certiorari

Grounds for Certiorari and Persons against whom Certiorari can be constituted

Certiorari is basically a tool for judicial control and restraint. As mentioned above, it is issued
by the Supreme Court or the High Court to quash an order passed by an inferior court,
tribunal, or quasi-judicial authority, whenever the authority has acted in excess of its power,
or without requisite jurisdiction, or has violated the principles of natural justice. It is
corrective in nature and is aimed at preventing overstepping by the judicial authorities.

Essential conditions for the writ of Certiorari

For the issuance of the writ of certiorari, the following conditions must be fulfilled:

1. The existence of an officer or a tribunal having the judicial authority as per the law
to decide on the cases affecting the rights of people.
2. Such an officer or the tribunal must have acted-

1. in excess of judicial power, or

2. without requisite jurisdiction, or
3. in violation of the principles of natural justice.

3. The honorable Supreme Court has clarified that this writ cannot be issued against
purely administrative actions. This implies that it can be invoked only in those
situations where it is the concerned authority’s duty to act judiciously, after hearing
both the parties and without any extraneous considerations. However, in the
subsequent decisions, this view has been rejected. So even if the authority is not
required to hear both sides before coming to a decision, the principles of natural
 justice must be obeyed. Thus, the writ of certiorari can be issued even in the
administrative cases.
4. A body is said to have acted beyond its jurisdiction in the following cases:

1. Where the court considering the matter has not been constituted properly as per the
law, like the requirements of members, etc.
2. Where the subject matter of inquiry lies beyond the scope of the body’s powers as
per the law.
3. When the jurisdiction has been based on a wrong assumption of facts.
4. When there is a failure of justice due to violation of principles of natural justice or
presence of elements like fraud, collusion, or corruption.
5. Even though the body has acted well within the limits of its jurisdiction, a decision
can be quashed if there is a blatant error prima facie. The error here means an error
of law.
Thus, in all the above-mentioned cases, a writ of certiorari can be issued.

Procedure to file a writ of Certiorari

The procedure to file a writ for certiorari is similar to filing any writ petition. A writ petition
can be filed either in the Supreme Court under Article 32 or in the High Court under Article
226, whenever a person’s fundamental rights have been violated. No specific time limit has
been provided for the filing of the petition. However, there is room for reasonable delay. It
should be filed within a reasonable time after the violation of a right.

To begin with, an aggrieved person has to first approach an advocate or an organization with
all the required documents. This is followed by the drafting of the petition by the lawyer. The
draft will include all the required particulars about the aggrieved and the facts about the
breach of his rights. The petition is then filed in court. Then the court will prescribe a specific
date for the hearing. Notice shall be sent by the court to the other party. Both parties shall
then appear in the court and put forward their arguments. After hearing both sides, the judge
shall pass the judgment. Just like any other writ, there is a proper prescribed format for the
writ that is to be followed in the petition.

Cases law related to the writ of Certiorari

The following are some important case laws associated with the writ of certiorari:

Syed Yakoob v. K.S. Radhakrishnan & Ors. (1964)

Facts

The State Transport Authority had called for applications for the grant of two-stage carriage
permits via a notification under the Motor Vehicles Act, 1939. After receiving a number of
applications, the first permit was granted to one of the applicants while fresh applications
were called for the second one. Following this, the appellant appealed to the State Transport
Appellate Tribunal. The Tribunal in its decision confirmed the first permit and in the second
it allowed the appellant’s appeal and held that it should be given to him. The respondent then
moved to the High Court with a writ of certiorari. It contended that the Tribunal had
overlooked several material considerations. When the previous order was affirmed, the
appellant then moved the Supreme Court under a special leave petition.

Issue

Did the High Court exceed its jurisdiction by issuing the writ of certiorari?

Held

It was held that the High Court did exceed its jurisdiction by issuing the writ of certiorari in
the present case. It was observed that this writ is issued to correct instances where a court has
exceeded its jurisdiction. Under the powers granted by the writ, the court cannot act as a court
of appeal or check an error of fact. It can be employed in cases where there is an error of law,
or when it can be shown that there has been a violation of the principles of natural justice.
But not on the basis of an error of fact solely. However, whether there has been such an error
or not is a matter of the court’s discretion.

Difference between Certiorari and Prohibition

Writ of Certiorari

As explained above, it is used by a superior court to quash the order passed by the lower
judicial authority. It is issued in cases where there is a prima facie error of law in the
judgment, the authority has given an order in excess of its powers, or when the principles of
natural justice are violated.

Writ of Prohibition

Similar to the writ of certiorari, the writ of prohibition is also issued by a higher judicial
authority to a lower one to prevent it from overstepping its jurisdiction. It is a kind of a ‘stay
order’ where the higher authority ‘prohibits’ the lower one from carrying out the proceedings
further. However, it can be passed only against judicial bodies and not administrative bodies.
It is a safeguard against the breach of the judicial hierarchy and the separation of subject
matters for efficiency. It can only be passed during the pendency of the proceedings.

What is Quo Warranto

The maxim quo warranto means “by what authority” and this writ is issued to prevent a
‘usurper’ from wrongfully occupying a substantive public office, enjoying certain privileges
and franchise from that public office, when he does not have the authority to do so. The
person being appointed to the public office must show by what authority he occupies it, in
order for it to be considered a valid appointment.

History and later developments of the writ of Quo Warranto

The origins of the concept of writ jurisdiction can be found in early English law. Quo
warranto used to be issued by the Crown against any person occupying or usurping a public
office, availing franchise or privilege of the Crown – to show by what authority the usurper
justified his claim. In India, during the Pre-Constitution period, the writ of quo warranto was
not used frequently and was gradually replaced by proceedings in the nature of quo warranto.
According to Section 9 of the Administration of Justice (Miscellaneous Provisions) Act 1938,
information in the nature of quo warranto came to an end. The three High Courts in the
Presidency towns, before the Constitution came into effect in 1950, possessed the authority to
issue the writ of quo warranto within the limits of their original jurisdiction. With the advent
of the Constitution in 1950, Articles 32 and 226 emerged and granted the Supreme Court and
High Courts, respectively, the power to issue writs, including the writ of quo warranto.

Who can file the writ of Quo Warranto

The following conditions are required to apply to the court to issue a writ of quo warranto:

1. There is no bar or restriction on who can apply. Any person can apply as long as
their fundamental or any other legal right is being breached. In cases where there is
no breach of right, a question of public interest must arise with respect to the
application.
2. The application made by the applicant should be bona fide.
3. The application should not be made for the sake of certain hidden political struggle
or undercurrent. The applicant should act in public interest, and not expect any
benefit or unethical gain through making the application.

Grounds of issuing the writ of Quo Warranto

The writ of quo warranto can be issued under the following cases:
 1. When a public office (created by law or the Constitution) is occupied by a private
person, who does not actually have the authority to do so.
2. The public office must be substantive in character. The duties connected to the
office must also be public in nature.
3. The usurper, whose authority is being challenged, must be holding his position at
the time the challenge is made.
4. Even if a person was qualified at one point of time, the writ of quo warranto can be
issued against him if he loses his qualifications.

Conditions for issuing the writ of Quo Warranto

Public office

The writ of quo warranto applies in the case of an office which is public and not private in
nature, i.e established by law or the Constitution. The public office must be substantive in
nature, which excludes mere employment or function of a servant at the pleasure of another.

The writ can be successfully applied in a case where

1. The usurper does not have the requisite qualifications to hold the public office.
2. The usurper exercises certain rights or privileges with respect to the public office
he wrongfully occupies.

Election

The Court needs to have strong and concrete justification if it wants to interfere with cases
associated with election. The Court can only interfere by issuing the writ of quo warranto
where:

1. The election does not have the sanction of the law;

2. There was a problem where people’s right to express their opinions was being
curtailed;
3. The electoral roll was unlawfully made and used.
In cases where the inconsistency in the election does not affect the end result, or the problem
is not severe enough, the Court usually does not interfere. The Court also does not take action
when the applicant’s intentions are shady, with respect to the problems concerned with
election.
Procedure to follow if Quo Warranto has to be issued
Article 32(1) grants the Supreme Court the power to issue writs, orders, directions through
“appropriate proceedings” for the purpose of enforcing fundamental rights covered under Part
III of the Constitution. The procedure for issuing writs is not rigid and has not been stipulated
in the Constitution. As India is a diverse country with a plethora of social issues such as
poverty, exploitation and lack of awareness, it would not be conducive to enforce
fundamental rights if the process for doing so is too complicated and ‘straight-jacketed.’ The
Court may either take suo motu cognisance of the case, or entertain a PIL (public interest
litigation) concerned with the case.

When can the writ of Quo Warranto be refused

The Court has the discretion to refuse to grant quo warranto in cases where:

1. The Court’s interference would not change the end result;

2. The case is vexatious;
3. The defendant no longer wrongfully occupies public office.

Case laws on the writ of Quo Warranto

Amarendra Chandra v. Narendra Kumar Basu, (1951)

In this case, the members of the Managing Committee of a school in Calcutta were the
respondents. The application for quo warranto was prayed for, to question the authority by
which these members occupied their posts. The Court held that the writ of quo
warranto would not be applicable to an office of a private nature.

G.D Karkare v. T.L Shevde, (1952)

In G.D Karkare v. T.L Shevde, (1952), the appointment of a non-applicant as Advocate-

General of Madhya Pradesh by the Governor was challenged. The non-applicant had already
crossed the age of 60 and retired from his post as a High Court Judge. As such, based
on Article 165(1), since he was no longer a High Court Judge, he was not qualified to be
appointed as Attorney-General. Here, the Court observed that it was not merely confined to
enforcing fundamental rights based on Article 226(1). The phrase “for any other purpose” in
Article 226 empowered the Court to act on any object it considered appropriate and in the
exercise of its powers. There is no reason that the same cannot be applied to issuing the writ
of quo warranto.

Furthermore, in the proceedings for the writ of quo warranto, the non-applicant does not seek
to enforce his fundamental rights or complain of any non-performance of duty towards
himself. The main issue was whether the non-applicant has the right to occupy the office and
whether the order passed is an order ousting the non-applicant from his position.

University of Mysore v. CD Govinda Rao, (1963)

In this case, the University of Mysore had set up recruitment advertisements for the positions
of professor and reader. The eligibility for the posts would be decided on the basis of the list
of criteria made by the University. The petition was put forward to issue the writ of quo
warranto based on the fact that an unqualified person, not meeting the criteria was recruited
and appointed as reader in English. It was observed by the Supreme Court that to issue the
writ of quo warranto, the person who wrongfully occupies the public office, must be holding
an office of a ‘substantive’ nature.

Critical analysis of the writ of Quo Warranto

Elements of Quo Warranto

1. For issuing the writ of quo warranto, the following ingredients are necessary:

 Wrongful occupation;
 Nature of the office being public, not private;
 Substantive character;
 Contrary to statutory provisions or the law.

2. For quo warranto, with respect to Article 226(1), it is not necessary that there must
be a breach of fundamental rights or a non-performance of duty. The main issue is
– whether the usurper has the authority to hold the office, and if not, then the order
passed is an order to oust the usurper from his post.
3. Even though the locus standi for quo warranto is relaxed compared to writs such
as certiorari and mandamus, the applicant must not be completely unrelated to the
appointment and office in question. Even if the connection is remote, the ‘link’
itself must exist.
4. In cases of election, where the applicant is not adversely affected or the end result
would not change despite the interference of the Court, the Court usually takes a
stance of non-interference.
5. The applicant must not have any malafide or ulterior motives for applying for quo
warranto. The purpose of the applicant should be inclined towards acting for the
benefit of public interest, and not for personal gain.
The concept of Quo Warranto in other countries

England

The Crown started the practice of issuing prerogative writs (writs with a special relationship
to the Crown), thus elevating prerogative writs and the Crown’s justice supreme over the
other courts. The Crown used the writ of quo warranto to prevent the wrongful usurpation of
public offices, and associated rights, privileges and franchise by its subjects, predominantly
the lords of the nobility. By showing with what right or authority they claimed their office,
the office-holders justified their claim. During the era of colonisation, English law left its
mark on the commonwealth countries and its colonies (including India). The concept of writs
in Indian law can find its origins in English law.

California, USA

In California, USA, to apply for the writ of quo warranto, the approval of the Attorney-
General is required. If leave to sue is granted, then the applicant or relator must proceed
under the supervision of the Attorney-General. If the usurper holding the office is found to be
holding it without authority or wrongfully, then, the Court may issue a writ of quo
warranto to remove him.

PUBLIC INTEREST LITIGATION

Introduction
The Taj Mahal, the eternal symbol of love in India, has withstood the brutal force of the
elements for centuries. But this magnificent monument was almost destroyed by pollution.
That is, until a lawyer by the name of M.C. Mehta filed a Public Interest Litigation seeking
directions from the Hon’ble Court to direct authorities to take steps to stop pollution.

Another example of a PIL is the Oleum Gas Leak Case that established the concept of
“absolute liability” in Indian law.

A Public Interest Litigation also known as PIL is a form of litigation that is filed to safeguard
or enforce public interest. Public Interest is the interest belonging to a particular class of the
community affects their legal rights or liabilities. It may include pecuniary interest.
What is a PIL?
PIL has not been defined in any Indian statute. However, Courts have interpreted and defined
PIL. The Hon’ble Supreme Court of India has, in the case of Janata Dal v. H.S.Chaudhary,
[(AIR 1993 SC 892) (see here)], held that lexically, the expression ‘PIL’ means a legal
action started in a court of law for the enforcement of public/general interest where the public
or a particular class of the public some interest (including pecuniary interest) that affects their
legal rights or liabilities.

PILs are considered to be the most effective as well as the most commonly used judicial tool
to safeguard the environment due to their many advantages including but not limited to
speedy results, nominal court fees, relaxed procedural rules and the wide variety of
investigative techniques available to courts like special committees.

Who can file a PIL?

Any individual or organisation can file a PIL either in his/her/their own standing i.e. to
protect or enforce a right owed to him/her/them by the government or on behalf of a section
of society who is disadvantaged or oppressed and is not able to enforce their own rights.

The concept of “Locus Standi” has been relaxed in the case of PILs so as to enable the
Hon’ble Court to look into grievances that are filed on behalf of those who are poor, illiterate,
deprived or disabled and are unable to approach the courts themselves.

However, only a person acting in good faith and who has sufficient interest in the proceeding
will have the locus standi to file a PIL. A person who approaches the Hon’ble Court for
personal gain, private profit, political or any oblique consideration will not be entertained.

Suo moto cognizance may also be taken by the Court.

Where can a PIL be filed?

PILs are extensions of Writ Jurisdiction. Therefore, PILs may be filed either before the
Hon’ble Supreme Court of India under Article 32 of the Indian Constitution or any High
Court under Article 226 of the Indian Constitution.

However, even a simple letter or a postcard addressed to the Chief Justice of India or the
Chief Justice of a High Court may suffice. The court may then choose to take cognizance of
the letter and convert it into a PIL as in the case of Rural Litigation & Entitlement Kendra,
Dehradun vs. State of Uttar Pradesh [(AIR 1989 SC 594) (see here)], where the Hon’ble
Court converted a letter raising the issue of unauthorised and illegal mining in Mussoorie
Hills into a writ petition under Public Interest Litigation.
Laws governing PIL in India
Over the years, the courts in India have formulated various principles with respect to PILs:

 Relaxed rule of locus standi- PILs can be filed by any person for the welfare of
others who are disadvantaged and are thus unable to approach the courts
themselves. Thus, the general rule of locus standi has been relaxed in cases of PILs
to protect and safeguard the interests and rights of these disadvantaged people.
 Relaxed procedural rules- Courts have treated even a letter or a telegram as a PIL
as in the case of Rural Litigation & Entitlement Kendra, Dehradun vs. State of
Uttar Pradesh (see here). Even the law regarding pleadings has been relaxed by
the courts in cases of PILs.
 Intervention by the courts– Courts has also highlighted the fact that Article 14 &
21 of the Constitution of India and the International Conventions on Human Rights
provide for a fair and reasonable trial. Thus, Courts must intervene when injustice
is done to many.
 Question of maintainability- The Government may not be allowed to raise
questions as to the maintainability of the PIL if the court is prime facie satisfied
that there is a variation of any constitutional rights of a disadvantaged category of
people.
 Principle of Res Judicata- The principle of res judicata or any principles
analogous to it would depend on the circumstances and facts of the case and the
nature of the PIL.
 Appointment of a Commission- In special circumstances, a court may appoint a
Commission or other bodies to investigate. In the event that the Commission takes
over a public institution, the Court may direct management of it.
 PILs regarding constitutionality or validity of a statute or a statutory rule–
Ordinarily, the High Court should not entertain such a petition by way of a PIL.
 Complete Justice– Under Article 142 of the Constitution of India, the Hon’ble
Supreme Court of India has the discretionary power to pass a decree or order as
may be necessary to do complete justice. However, while high courts may pass
orders to do complete justice, they do not have powers akin to those granted to the
Hon’ble Supreme Court under Article 142.
 Misuse of PILs– Courts are extremely cautious to ensure that PILs are not
misused as the misuse of PILs would defeat the very purpose for which it was
conceived i.e. to come to the rescue of the poor and the downtrodden. The courts
have, time and again, reiterated this fact as in the case of Kushum Lata v. Union of
India {[(2006) 6 SCC 180] (see here)}. However, courts have held that even if the
petitioner had approached the court for his own private interest due to his personal
grievances, the court may treat it necessary to inquire into the subject of the
litigation and its state of affairs in furtherance of public interest.
 Formulation of various concepts– In environmental law cases, the courts have
formulated and evolved several concepts including the Polluter Pays Principle, the
Precautionary Principle, the Public Trust Doctrine and Sustainable Development.
What are some essentials of drafting a PIL?
The following are some of the essential steps that should be followed when drafting a PIL:

 Collection of information– The first step of drafting a PIL would be to collect all
relevant information pertaining to the issue.
 Collation of documents– All documents regarding the case including photographs
if any, must be collated.
 Court in which it is to be filed– The Petitioner must decide in which he/she/it
wants to file the PIL, whether before the Hon’ble Supreme Court or the High
Court of that State.
 Form of the PIL– A PIL can be in the form of a Petition or even a letter or
postcard. In the event that the PIL is to be filed before the Hon’ble Supreme Court
of India, the letter/postcard must be addressed to the Chief Justice of India. In the
event that the PIL is to be filed before a High Court, the letter/postcard must be
addressed to the Chief Justice of that particular High Court.
 Public Litigation Guidelines– When drafting a PIL, one must look at the Public
Litigation Guidelines applicable for the particular court before which one intends
to file the PIL. The same are usually available on the websites of the respective
courts.
 Details to clearly stated– The following details must be clearly stated:
1. Petitioner’s name, postal address, email address, phone number,
occupation, annual income and PAN number.
2. Proof of identity of the Petitioner must be annexed.
3. Facts of the case.
4. Nature of the injury.
5. Any personal interest that he/she/it may have.
6. Details of any litigation involving the petitioner which could have a
legal nexus with the issue involved in the PIL.
7. The class of persons for whose benefit the PIL is being filed and how
they are incapable of accessing the courts themselves.
8. In the event that any representations have been made to any authorities
regarding the issue, the details of the same.
9. Any person/body/institution that may be affected by the PIL must be
joined as a party.
10. The Petitioner must also state that he/she/they are able to pay costs, if
any, that may be imposed by the court.
 Appearance in court- The Petitioner may either appoint an advocate or choose to
appear in person.
What is the procedure for filing a PIL?
Details on the procedure of filing PILs in the Hon’ble Supreme Court and a High Court are
summarized in the table below.

Supreme Court High Court

Number of copies of the PIL to be

5 2
filed

Service of copy upon

To be served only when the Hon’ble
Respondent(s) / Opposite To be served in advance
Court issues notice regarding the same.
Party(ies)

Rs.50/- per
Court Fees to be affixed on the
Respondent / Opposite Rs.50/- per Respondent / Opposite Party
Petition
Party

A PIL can be filed in the same way as a writ petition.

Public Interest Litigation (PIL) guidelines are available on the website of the Hon’ble
Supreme Court of India (see here). It states inter alia that certain letter-petitions that fall
under certain categories alone will ordinarily be treated as PILs including petitions pertaining
to environmental pollution, disturbance of ecological balance, drugs, food adulteration,
maintenance of heritage and culture, antiques, forest and wildlife and other matters of public
importance.

Conclusion
A PIL is an important judicial tool especially for the protection of the rights of those who are
unable to approach the courts themselves. They are one of the most commonly used forms of
litigation, especially in environmental cases. The courts have tried to make rules regarding
PILs simpler so as to not discourage the filing of PILs in public interest and on behalf of the
poor, disable or deprived classes of persons. However, there are several instances in which
people have tried to further their own private interests under the guise of PILs. Thus, courts
must continue to remain extremely cautious to ensure that PILs are not misused.

LOKPAL IN ADMIN LAW

Introduction
Maladministration is like a termite that slowly erodes the foundation of a nation. It hinders
administration from completing its task. Corruption is the root cause of this problem that our
country faces. Though there are many anti-corruption agencies in India, most of these anti-
corruption agencies are hardly independent. Even the CBI has been termed as a “caged
parrot” and “its master’s voice” by the Supreme Court of India.

Many of these agencies are only advisory bodies with no effective powers to deal with this
evil of corruption and their advice is rarely followed. There also exists the problem of internal
transparency and accountability. Moreover, there is not any effective and separate mechanism
to maintain checks on such agencies.

The Lokpal and Lokayukta Act, 2013 mandated for the establishment of Lokpal at the Union
level and Lokayukta at the State level. Lokpal and Lokayuktas are statutory bodies and these
do not have any constitutional status. These institutions perform the function and role of an
“Ombudsman” (an official appointed to investigate individuals’ complaints against a
company or organization, especially a public authority). They inquire into allegations of
corruption against certain public bodies/organizations and for other related matters.

Origin and History

The story of the Lokpal and the Lokayukta has a long story. Lokpal and Lokayukta is not
Indian origin concept. The concept of ombudsman originated in 1809 with the official
inauguration of the institution of Ombudsman in Sweden. Later in the 20th century, after the
Second World War, the institution of ombudsman developed and grew most significantly.
Countries like New Zealand and Norway also adopted the system of ombudsman in the year
1962. This system proved extremely significant in spreading the concept of ombudsman to
other countries across the globe.

Great Britain adopted the institution of the Ombudsman in the year 1967, on the
recommendations of the Whyatt Report of 1961. Through the adoption of such a system,
Great Britain became the first eminent nation in the democratic world to have such an anti-
corruption institution. After great Britain, Guyana emerged as the first developing nation to
adopt the concept of the ombudsman in the year 1966. Subsequently, this concept was further
adopted by Mauritius, Singapore, Malaysia, and India as well.

In India, the former law minister Ashok Kumar Sen became the first Indian to propose the
concept of constitutional Ombudsman in Parliament in the early 1960s. Further, Dr. L. M.
Singhvi coined the term Lokpal and Lokayukta. Later in the year 1966, the First
Administrative Reform Commission passed recommendations regarding the setting up of two
independent authorities at the central and at the state level. According to the commission’s
recommendation, the two independent authorities were appointed to look into complaints
against public functionaries, including members of Parliament as well.

After the recommendations from the commission, the Lokpal bill was passed in Lok Sabha in
1968 but lapsed due to the dissolution of Lok Sabha. Since then, the bill was introduced many
times in Lok Sabha but has lapsed. Till 2011 as many as eight attempts were made to pass the
Bill, but each of them failed.
Before 2011, a commission, headed by M.N. Venkatachaliah, was also set up, in the year
2002 to review the working of the Constitution. This Commission recommended the
appointment of the Lokpal and Lokayuktas. The commission also recommended that the
Prime Minister ought to be kept out of the ambit of the Lokpal. Later in 2005, the Second
Administrative Reforms Commission chaired by Veerappa Moily came up with the
recommendation that the office of Lokpal needs to be established without delay.

Though all these recommendations were never given the due preference, the government in
2011 formed a Group of Ministers, chaired by the former President Pranab Mukherjee. These
groups of ministers worked to examine the proposal of a Lokpal Bill and to suggest measures
to tackle corruption.

Not only the administration and the government but even the people of India felt the need for
such a system to be introduced into the Indian governance system. India rose into a
nationwide protest for Lokpal. The “India Against Corruption” movement was led by Anna
Hazare to exert pressure on the United Progressive Alliance (UPA) government at the
Centre.

The protests and the movement resulted in the passing of the Lokpal and Lokayuktas Bill,
2013, in both the Houses of Parliament. The bill received assent from President on 1 January
2014 and came into force on 16 January 2014 under the name “The Lokpal and Lokayukta
Act 2013”.

Lokpal and Lokayukta Amendment Act, 2016

After the introduction of the Lokpal and Lokayukta Act 2013, a bill was passed by Parliament
in July 2016 which amended the Lokpal and Lokayukta Act, 2013. This amendment enabled
the leader of the single largest opposition party in the Lok Sabha to become a member of the
selection committee in the absence of a recognized Leader of Opposition.

This bill also amended Section 44 of the Lokpal and Lokayukta Act 2013. Section 44 of the
Act dealt with the provisions of furnishing of details of assets and liabilities, within 30 days
of joining the government service, of any public servant. This amendment replaced the time
limit of 30 days. It stated that the public servants will make a declaration of their assets and
liabilities in the form and manner as prescribed by the government.

In the case where any non-governmental organization receives funds of more than Rs. 1 crore
from government or receives foreign funding of more than Rs. 10 lakh then the assets of the
trustees and board members were to be disclosed to the Lokpal. The bill provided an
extension to the time limit given to trustees and board members to declare their assets and
those of their spouses.
Structure of the Lokpal
Let us try to understand the structure of the Lokpal. Lokpal is a multi-member body
consisting of one chairperson and a maximum of 8 members.

The person to be appointed as the chairperson of the Lokpal must be either:

1. The former Chief Justice of India; or

2. The former Judge of the Supreme Court; or
3. An eminent person with impeccable integrity and outstanding ability, who must
possess special knowledge and a minimum experience of 25 years in matters
relating to:
1. Anti-corruption policy;
2. Public administration;
3. Vigilance;
4. Finance including insurance and banking;
5. Law and management.
The maximum number of members must not exceed eight. These eight members must
constitute:

 Half members to be judicial members;

 Minimum 50% of the Members should be from SC/ ST/ OBC/ minorities and
women.
The judicial member of the Lokpal must be either:

 A former Judge of the Supreme Court or;

 A former Chief Justice of the High Court.
The non-judicial member of the Lokpal needs to be an eminent person with flawless integrity
and outstanding ability. The person must possess special knowledge and an experience of a
minimum of 25 years in matters relating to:

 Anti-corruption policy;
 Public administration;
 Vigilance;
 Finance including insurance and banking;
 Law and management.
Term and appointment to the office of Lokpal

Lokpal Chairman and the Members can hold the office for a term of 5 years or till they attain
the age of 70 years, whichever is earlier. The members and the chairman of Lokpal are
appointed by the president on the recommendation of a selection committee.

The selection committee consists of:

 The Prime Minister of India;

 The Speaker of Lok Sabha;
 The Leader of Opposition in Lok Sabha;
 The Chief Justice of India or any Judge nominated by Chief Justice of India;
 One eminent jurist.
The Prime Minister is the Chairperson of the selection committee. The selection of the
chairperson and the members is carried out by a search panel of at least eight persons,
constituted by the selection committee.

Lokpal search committee

As per the Lokpal Act of 2013, the Department of Personnel and Training needs to create a
list of candidates who are interested to become the chairperson or members of the Lokpal.
The list was then to be presented to the proposed eight-member search committee. The
committee on receiving the list shortlists the names and place them before the selection panel,
headed by the Prime Minister.

The selection panel has discretion in selecting the names from the list presented by the search
committee. In September 2018, a search committee was constituted by the government which
was headed by former Supreme Court judge Justice Ranjana Prakash Desai. The Lokpal and
Lokayukta Act of 2013 also mandates that all states must set up the office of the Lokayukta
within one year from the commencement of the Act.

Jurisdiction and powers of Lokpal

The Jurisdiction of Lokpal extends to:

 Prime Minister, Ministers,

 Members of Parliament,
 Groups A, B, C and D officers,
 Officials of Central Government.
The Jurisdiction of the Lokpal extends to the Prime Minister, except in the cases of
allegations of corruption relating to:
  International relations;
 Security;
 The public order;
 Atomic energy and space.
The jurisdiction of the Lokpal does not include ministers and members of Parliament in the
matter relating to:

 Any speeches delivered in the Parliament or;

 For a vote cast in the Parliament.

Lokpal’s jurisdiction also includes:

 Every person who is or has been in charge (director/ manager/ secretary) of a body
or a society set up by the act of central government,
 Any society or body financed or controlled by the central government,
 Any person involved in act of abetting,
 Bribe giving or bribe-taking.
The Lokpal and Lokayukta Act states that all public officials need to furnish their assets and
liabilities as well as their respective dependents. The Lokpal also possesses the powers to
superintendence over the CBI. It also has the authority to give direction to CBI. If a case is
referred to CBI by the Lokpal, then the investigating officer in such a case cannot be
transferred without the prior approval of the Lokpal. The powers of a civil court have been
vested with the Inquiry Wing of the Lokpal.

The Lokpal also possesses powers regarding the confiscation of assets, proceeds, receipts,
and benefits arisen or procured by means of corruption in special circumstances. It also has
the power to make recommendations regarding the transfer or suspension of public servants
connected with the allegations of corruption.

Lokpal is capable of giving directions to prevent the destruction of records during the
preliminary inquiry.

Limitations
The institution of Lokpal came up as a much-needed change in the battle against corruption.
The Lokpal was a weapon to curtail the corruption that was spreading in the entire
administrative structure of India. But at the same time, there are loopholes and lacunae which
need to be corrected. The appointing committee of Lokpal consists of members from political
parties that put Lokpal under political influence.

The Lokpal does not have any constitutional backing. Also, there are no adequate provisions
for appeal against the actions of Lokpal. The states have complete discretion with respect to
the specific details in relation to the appointment of Lokayukta. The need for functional
independence of the CBI has been catered to some extent, by the change brought forth in the
selection process of CBI’s Director, by the Lokpal and Lokayukta Act.

The Lokpal and Lokayukta Act also mandates that no complaint against corruption can be
registered after a period of seven years from the date on which the mentioned offense is
alleged to have been committed.

Central Administrative Tribunal

The Central Administrative Tribunal (CAT) was established in 1985 through the
Administrative Tribunals Act. The CAT is responsible for adjudication or trial of matters
connected with recruitment and conditions of service of personnel in public service in
India. This is an important aspect of polity & governance for the UPSC exam.

Central Administrative Tribunal – Latest Update

1. Union Minister of State, Development of North Eastern Region (DoNER), MoS

PMO, Personnel, Public Grievances, Pensions, Atomic Energy and Space, Dr. Jitendra
Singh on 8th June 2020 inaugurated the 18th Bench of Central Administrative
Tribunal (CAT) for the Union Territories of Jammu and Kashmir and Ladakh through
a Video Conference.

Central Administrative Tribunal

The CAT was created by the Act in 1985 under Article 323A of the Constitution of India.
The Tribunal derives its jurisdiction, powers, and authority from this Section. It was
established via the 42nd Constitutional Amendment of the Constitution.

 Tribunals under Article 323A can be formed only through the Parliament and
not the State Legislatures.

 However, Article 323B, which deals with other tribunals, enables such
tribunals to be formed both by the Parliament and the State Legislatures.

 Article 323A is only for tribunals for public service matters.



 Only one service at the central level and one for each state or two or more
states can be established.

 Here, there is no hierarchy of tribunals.

Central Administrative Tribunal Mandate

The mandate of the CAT is to adjudicate matters related to the recruitment and conditions of
service of personnel engaged in public service in the country.

Central Administrative Tribunal Jurisdiction

The CAT exercises original jurisdiction over all service matters concerned with:

1. Members of the all-India services.

2. Persons appointed to any civil service of the Union or civil post under the Union.
3. Civilians appointed to any defence services or posts related to defence.
4. Employees of PSUs or public sector organizations were notified by the government.
Note:-

Members of the defence forces, officers, Supreme Court staff, the Parliament’s secretarial
staff are not covered under the CAT.

Composition of Central Administrative Tribunal

Central Administrative Tribunal’s members are drawn from legal and administrative fields to
provide the benefit of expertise in both domains.

 Chairperson (tenure of 5 years or 65 years of age, whichever is earlier)

 Should be an SC judge or the Chief Justice of a High Court.

 Vice-chairperson (tenure of 5 years or 62 years of age, whichever is earlier)

 Other members
All are appointed by the President.

The Functioning of Central Administrative Tribunal

The following are some of the features of the CAT’s functioning:

 The Tribunal has been conferred the power to exercise the same jurisdiction and
authority regarding contempt of itself as a High Court.
 Appeals against the orders of a tribunal could be made in the High Court (and not the
SC directly – Chandra Kumar Case, 1997).
 The CAT has 17 Benches in the country as well as 21 Circuit Benches.
 The CAT Principal Bench deals with matters of the Government of the National
Capital Territory of Delhi.
 In deciding cases, the Tribunal is guided by the principles of natural justice. It is not
bound by the Civil Procedure Code.
  The central government decides the salaries, emoluments, and conditions of service of
the Tribunal’s employees.
 A petitioner can either appear in person before the Tribunal or take the help of a legal
practitioner.

ADMINISTRATIVE TRIBUNAL

Introduction
In Administrative law, the term ‘tribunal’ is used in a significant sense and refers to only the
adjudicatory bodies which lie outside the sphere of the ordinary judicial system. Technically
in India, the judicial powers are vested in the Courts which aims to safeguard the rights of the
individuals and promotes justice. Therefore, to institute an effective system of the judiciary
with fewer complexities, the judicial powers are delegated to the administrative authorities,
thus, giving rise to administrative tribunals or administrative adjudicatory bodies which holds
quasi-judicial features.

History of Tribunalisation
The concept of tribunalisation came into existence in India with the establishment of the
Income Tax Appellate Tribunal before the independence of the country. After independence,
a need was being felt for resolving administrative disputes with flexibility and speed. The
core objective of tribunalisation was to provide specialised and speedy justice to the people.

After the drafting of the Indian Constitution, several rights for the welfare of the individuals
were guaranteed by the Constitution. People have the right to speedy trials and of specialised
quality which cannot be delivered by the prevailing judicial system due to the overburden of
cases and appeals, technicalities in procedure etc.

Growth of Administrative Tribunals

The 42nd Amendment to the Constitution introduced Part XIV-A which included Article
323A and 323B providing for constitution of tribunals dealing with administrative matters
and other issues. According to these provisions of the Constitution, tribunals are to be
organized and established in such a manner that they do not violate the integrity of the
judicial system given in the Constitution which forms the basic structure of the Constitution.

The introduction of Article 323A and 323B was done with the primary objective of excluding
the jurisdiction of the High Courts under Article 226 and 227, except the jurisdiction of the
Supreme Court under Article 136 and for originating an efficacious alternative institutional
mechanism or authority for specific judicial cases.

The purpose of establishing tribunals to the exclusion of the jurisdiction of the High Courts
was done to reduce the pendency and lower the burden of cases. Therefore, tribunals are
organised as a part of civil and criminal court system under the supremacy of the Supreme
Court of India.

Characteristics of Administrative Tribunals

The following are the few attributes of the administrative tribunals which make them quite
disparate from the ordinary courts:

1. Administrative tribunals must have statutory origin i.e. they must be created by
any statute.
2. They must have some features of the ordinary courts but not all.
3. An administrative tribunal performs the quasi-judicial and judicial functions and is
bound to act judicially in every circumstance.
4. They are not adhered by strict rules of evidence and procedure.
5. Administrative tribunals are independent and not subject to any administrative
interference in the discharge of judicial or quasi-judicial functions.
6. In the procedural matters, an administrative tribunal possesses the powers of a
court to summon witnesses, to administer oaths and to compel the production of
documents, etc.
7. These tribunals are bound to abide by the principle of natural justice.
8. A fair, open and impartial act is the indispensable requisite of the administrative
tribunals.
9. The prerogative writs of certiorari and prohibition are available against the
decisions of administrative tribunals.

Categories of Administrative Tribunals

Administrative Tribunals for service matter [Article 323A]

Article 323A provides the establishment of administrative tribunals by law made by

Parliament for the adjudication of disputes and complaints related to the recruitment and
conditions of service of Government servants under the Central Government and the State
Government. It includes the employees of any local or other authority within the territory of
India or under the control of the Government of India or of a corporation owned or controlled
by the Government.

The establishment of such tribunals must be at the centre and state level separately for each
state or for two or more states. The law must incorporate the provisions for the jurisdiction,
power and authority to be exercised by tribunals; the procedure to be followed by tribunals;
the exclusion of the jurisdiction of all other courts except the Supreme Court of India.
Tribunals for other matters [Article 323B]

Article 323B empowers the Parliament and the State Legislature to establish tribunals for the
adjudication of any dispute or complaint with respect to the matters specified under clause (2)
of Article 323B. Some of the matters given under clause (2) are a levy, assessment, collection
and enforcement of any tax; foreign exchange and export; industrial and labour disputes;
production, procurement, supply and distribution of foodstuffs; rent and it’s regulation and
control and tenancy issues etc. Such a law must define the jurisdiction, powers of such
tribunals and lays down the procedure to be followed.

In the landmark case of L. Chandra Kumar v. Union of India[1], the court reached various
conclusions as to jurisdictional powers of the tribunal constituted under Articles 323A and
323B. The Supreme Court struck down clause 2(d) of Article 323A and clause 3(d) of Article
323B on the ground that they excluded the jurisdiction of the High Courts and the Supreme
Court under Article 226/227 and 32 respectively.

The SC ruled that the tribunals created under Article 323A and 323B would continue to be
the courts of the first instance in their respective areas for which they are constituted. The
litigants are not allowed to approach the High Courts directly by overlooking the jurisdiction
of the concerned tribunal.

No appeal for the decision of the tribunal would lie directly before the Supreme Court under
Article 136 but instead, the aggrieved party would be entitled to move the High Court under
Article 226 and 227 and after the decision of the Division Bench of the High Court, the party
may approach the Apex Court under Article 136.

Distinction between Courts and Tribunals

Courts Administrative Tribunal

A Court of law is a part of the traditional The administrative tribunal is an agency created by a
judicial system. statue endowed with judicial powers.

A Court of law is vested with general It deals with service matters and is vested with limited
jurisdiction over all the matters. jurisdiction to decide a particular issue.

It is strictly bound by all the rules of evidence It is not bound by the rules of the Evidence Act and
and by the procedure of the Code of Civil the CPC unless the statute which creates the tribunal
Procedure. imposes such an obligation.

It is presided over by an officer expert in the It is not mandatory in every case that the members
law. need to be trained and experts in law.
 The decision of the court is objective in nature The decision is subjective i.e. at times it may decide
primarily based on the evidence and materials the matters taking into account the policy and
produced before the court. expediency.

It is not obligatory to follow precedents and principle

It is bound by precedents, the principle of res
of res judicata but the principle of natural justice must
judicata and the principle of natural justice.
be followed.

It can decide the validity of legislation. It cannot decide the validity of legislation.

The courts do not follow investigatory or

Many tribunals perform investigatory functions as
inquisition functions rather it decides the case
well along with its quasi-judicial functions.
on the basis of evidence.

The Administrative Tribunals Act, 1985

In pursuance of the provisions in Article 323A, Parliament passed the Administrative
Tribunal Act, 1985, providing for all the matters falling within the clause(1) of Article 323-A.

According to this Act, there must be a Central Administrative Tribunal (CAT) at the centre
and a State Administrative Tribunal (SAT) at the state level for every state.

The tribunal is competent to declare the constitutionality of the relevant laws and statutes.
The Act extends to, in so far as it is related to the Central Administrative Tribunal, to the
whole of India and in relation to the Administrative tribunals for states, it is applicable to the
whole of India except the State of Jammu and Kashmir (Section 1).

Objective for the establishment of Administrative Tribunals

The main purpose of the introduction of this act was :

1. To relieve congestion in courts or to lower the burden of cases in courts.

2. To provide for speedier disposal of disputes relating to the service matters.

Applicability of the Act

According to Section 2 of the Administrative Tribunals Act, 1985, the act applies to all
Central Government employees except –
  The members of the naval, military or air force or any other armed forces of the
Union
 Any officer or servant of the Supreme Court or any High Courts
 Any person appointed to the secretariat staff of either House of the Parliament.

Composition of the Tribunals and Bench

Section 4 of this Act describes the composition of the tribunals and bench. Each tribunal shall
consist of a Chairman, Vice Chairman, Judicial and Administrative members. Every bench
must include at least one judicial and one administrative member. The benches of the Central
Tribunal shall ordinarily sit at New Delhi, Allahabad, Calcutta, Madras, Bombay and such
other place as the Central Government specifies. The Chairman may transfer the Vice
Chairman or other members from one bench to another bench.

Qualification and Appointment of Members

Section 6 of the Administrative Tribunals Act, 1985, lays the provisions specifying the
qualifications and appointment of the members of tribunals.

Chairman: To be appointed as a chairman, a person must have the following qualifications-

 He is or has been a judge of a High Court or

 He has held the office of Vice Chairman for two years or
 He has held the post of secretary to the Government of India or
 He has held any other post carrying the scale pay of secretary.
Vice-Chairman: A person is qualified for the post of Vice-Chairman if he-

 Is or has been a judge of the High Court or

 Has for 2 years held the post of Secretary to the Government or holding any other
post carrying the same pay scale under the Central or State Governments or
 Has held for 5 years the post of an Additional Secretary to the Government of
India or any other post carrying the scales of pay of Additional Secretary.
Judicial Member: A person to be appointed as a judicial member must-

 Be or have been a judge of the High Court or

 Have been a member of Indian Legal Service and has held a post in Grade I of the
service for at least 3 years.
Administrative Member: A person to be appointed as an Administrative member must-
  Have held the post of an Additional Secretary to the Government of India or
another equivalent post for at least 2 years, or
 Have held the post of a Joint Secretary to the Government of India or other
equivalent post, or
 Have adequate administrative experience.
The Chairman, Vice-Chairman and other members shall be appointed by the President. The
Judicial Members shall be appointed by the President with the consultation of the Chief
Justice of India. The Chairman, Vice-Chairman and other members of the State Tribunal shall
be appointed by the President after consultation with the Governor of the concerned state.

Term of Office

According to Section 8 of the Act, the Chairman, Vice-Chairman and other members of the
tribunal shall hold the office for a term of 5 years or until he attains-

1. Age of 65 years, in the case of the Chairman or Vice-Chairman

2. Age of 62 years in the case of other members

Resignation and Removal

Section 9 of the Act prescribes the procedure of resignation by any member and removal of
any member.

The Chairman, Vice-Chairman or other members may resign from his post by writing to the
President.

They shall be removed from their office only by an order made by the President on the
ground of proved misbehaviour or incapacity after an enquiry made by a judge of the
Supreme Court. They shall have the right to be informed of the charges against them and
shall be given a reasonable opportunity of hearing. The Central Government may make rules
to regulate the procedure for the investigation of the charges against them.

Jurisdiction of Central Tribunal

Section 14 states that the Central Tribunal from the day of the appointment shall exercise all
the jurisdiction, powers and authority in relation to the following matters which were within
the jurisdiction of other courts (except the Supreme Court) before the enactment of this Act:

1. Recruitment of any civil service of Union or All India service or civil post under
the Union or civilian employees of defence services;
 2. All service matters of the above-mentioned employees, and also of employees of
any local or other authority within the territory of India or under the control of the
Government of India or any corporation or society owned or controlled by the
Government;
3. All service matters of such persons whose services have been placed by the State
Government or any local or other authority or any corporation at the disposal of
the Central Government.

Procedure and Powers of Tribunals

Section 22 of the Administrative Tribunals Act, 1985 lays down the powers and procedure of
tribunals discussed below-

1. A tribunal is not bound to follow the procedure laid down by the Code of Civil
Procedure, 1908. It has the power to regulate its own procedure but must abide by
the principle of natural justice.
2. A tribunal shall decide the applications and cases made to it as rapidly as possible
and every application shall be decided after scrutinizing the documents and written
submissions and perceiving the oral arguments.
3. Tribunals have the same powers as vested by the civil courts under the Code of
Civil Procedure, 1908, while trying a suit, with regard to the following subject-
matter-
4. Summoning and enforcing the attendance of any person and examining him on
oath;
5. Production of documents;
6. Receiving evidence on affidavits;
7. Ask for any public record or document from any office under Section
123 and 124 of the Indian Evidence Act, 1872;
8. Issuing commissions for the examination of witnesses and documents;
9. Reviewing its decisions;
10. Deciding the case ex-parte;
11. Setting aside any order passed by it ex-parte;
12. Any other matter prescribed by the Central Government.
13. Leading Case Laws
Case: S.P. Sampath Kumar v. Union of India[2]

Facts: The constitutional validity of the Administrative Tribunals Act, 1985, was
predominantly challenged on the ground that this Act excludes the jurisdiction of High
Courts under Articles 226 and 227 with regard to service matters and hence, destroyed the
concept of judicial review which was an essential feature of the Indian Constitution.
Judgment: A five-Judge Bench of the Court upheld the validity of the Act except Section
6(1)(c). The court held that although this Act has excluded the jurisdiction of judicial review
exercised by the High Courts in the service matters it has not entirely excluded the concept of
judicial review. The jurisdiction of the Supreme Court under Article 32 and 136 has not been
excluded by this Act and kept unscathed.

Thus, there still exists an authority where matters of injustice can be entertained by judicial
review. The judicial review which is the part of the basic structure of the Indian Constitution
can be taken away from a particular area only if an alternative effectual institutional
mechanism or authority is provided.

However, Section 6 (1)(c) of the Act was held to be unconstitutional as it gave unrestricted
power to the Government to appoint the Chairman, Vice-Chairman and other members of the
tribunals. These appointments must be made by the Government in a meaningful and
effective manner only after consulting the Chief Justice of India.

The court recommended that the term of 5 years prescribed under the Act for Chairman,
Vice-Chairman and other members of the tribunal is not rational because it would act as
dissuasion for the good and generous people to accept the job in the tribunal and should,
therefore, be reasonably extended.

The directions given by the Supreme Court came into effect through the Administrative
Tribunals (Amendment) Act, 1987.

Advantages of Administrative Tribunals

The concept of administrative tribunals was introduced because it has certain advantages over
ordinary courts. Few of them are mentioned below-

 Flexibility: The introduction of administrative tribunals engendered flexibility and

versatility in the judicial system of India. Unlike the procedures of the ordinary
court which are stringent and inflexible, the administrative tribunals have a quite
informal and easy-going procedure.

 Speedy Justice: The core objective of the administrative tribunal is to deliver quick
and quality justice. Since the procedure here is not so complex, so, it is easy to
decide the matters quickly and efficiently.

 Less Expensive: The Administrative Tribunals take less time to solve the cases as
compared to the ordinary courts. As a result, the expenses are reduced. On the
other hand, the ordinary courts have cumbrous and slow-going, thus, making the
litigation costly. Therefore, the administrative tribunals are cheaper than ordinary
courts.

 Quality Justice: If we consider the present scenario, the administrative tribunals

are the best and the most effective method of providing adequate and quality
justice in less time.
  Relief to Courts: The system of administrative adjudication has lowered down the
burden of the cases on the ordinary courts.

Drawbacks of Administrative Tribunals

Although, administrative tribunals play a very crucial role in the welfare of modern society,
yet it has some defects in it. Some of the criticisms of the administrative tribunal are
discussed below-

 Against the Rule of Law: It can be observed that the establishment of the
administrative tribunals has repudiated the concept of rule of law. Rule of law was
propounded to promote equality before the law and supremacy of ordinary law
over the arbitrary functioning of the government. The administrative tribunals
somewhere restrict the ambit of the rule of law by providing separate laws and
procedures for certain matters.

 Lack of specified procedure: The administrative adjudicatory bodies do not have

any rigid set of rules and procedures. Thus, there is a chance of violation of the
principle of natural justice.

 No prediction of future decisions: Since the administrative tribunals do not follow

precedents, it is not possible to predict future decisions.

 Scope of Arbitrariness: The civil and criminal courts work on a uniform code of
procedure as prescribed under C.P.C and Cr.P.C respectively. But the
administrative tribunals have no such stringent procedure. They are allowed to
make their own procedure which may lead to arbitrariness in the functioning of
these tribunals.

 Absence of legal expertise: It is not necessary that the members of the

administrative tribunals must belong to a legal background. They may be the
experts of different fields but not essentially trained in judicial work. Therefore,
they may lack the required legal expertise which is an indispensable part of
resolving disputes.